 Section 21 of a collection of Supreme Court Opinions by the United States Supreme Court. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. New York Times Company v. Sullivan 376, U.S. 254. Decided March 9, 1964. Part 1. Please note, this is a reading of the opinion of the court only. This reading does not include the syllabus or any concurring or dissenting opinions. For ease of listening, this reading omits legal citations found within the text of the court's opinion. Mr. Justice Brennan delivered the opinion of the court. We are required in this case to determine for the first time the extent to which the constitutional protections for speech and press limit a state's power to award damages in a libel action brought by a public official against critics of his official conduct. Respondent L.B. Sullivan is one of the three elected commissioners of the city of Montgomery, Alabama. He testified that he was Commissioner of Public Affairs and the duties are supervision of the police department, fire department, department of cemetery, and department of scales. He brought this civil libel action against the four individual petitioners who are Negroes and Alabama clergymen, and against petitioner, the New York Times Company, New York Corporation, which publishes The New York Times, a daily newspaper. A judge in the circuit court of Montgomery County awarded him damages of $500,000. The full amount claimed against all the petitioners and the Supreme Court of Alabama affirmed. Respondent's complaint alleged that he had been libeled by statements in a full page advertisement that was carried in the New York Times on March 29, 1960, entitled, quote, Heed Their Rising Voices, end quote. The advertisement began by stating that, quote, As the whole world knows by now, thousands of Southern Negro students are engaged in widespread nonviolent demonstrations in positive affirmation of the right to live in human dignity, as guaranteed by the U.S. Constitution and the Bill of Rights, end quote. It went on to charge that, quote, In their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document, which the whole world looks upon as setting the pattern for modern freedom, end quote. Succeeding paragraphs purported to illustrate the wave of terror by describing certain alleged events. The text concluded with an appeal for funds for three purposes, support of the student movement, quote, The struggle for the right to vote, end quote, and the legal defense of Dr. Martin Luther King, Jr., leader of the movement against a perjury indictment, then pending in Montgomery. The text appeared over the names of 64 persons, many widely known for their activities in public affairs, religion, trade unions, and the performing arts. Below these names, and under a line reading, quote, We in the South who are struggling daily for dignity and freedom, warmly endorse this appeal, end quote. Appeared the names of the four individual petitioners, and of 16 other persons, all but two of whom were identified as clergymen in various southern cities. The advertisement was signed at the bottom of the page by the Committee to Defend Martin Luther King, and the struggle for freedom in the South. And the officers of the committee were listed. Of the ten paragraphs of text in the advertisement, the third and a portion of the six were the basis of respondents' claim of libel. They read as follows. Third paragraph, quote, In Montgomery, Alabama, after students saying my country tis of thee on the state capital steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear gas ringed the Alabama State College campus. When the entire student body protested to state authorities, by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission, end quote. Six paragraph, quote, Again and again, the southern violators have answered Dr. King's peaceful protests with intimidation and violence. They have bombed his home, almost killed his wife and child. They have assaulted his person. They have arrested him seven times for speeding, loitering, and similar offenses. And now they have charged him with perjury. A felony under which they could imprison him for ten years, end quote. Although neither of these statements mentioned respondent by name, he contended that the word, quote, police, end quote, In the third paragraph referred to him as the Montgomery Commissioner who supervised the police department, so that he was being accused of, quote, ringing, end quote, the campus with police. He further claimed that the paragraph would be read as imputing to the police and, hence to him, the padlocking of the dining hall in order to starve the students into submission. Footnote. Respondent did not consider the charge of expelling the students to be applicable to him, since, quote, that responsibility rests with the State Department of Education, end quote. End footnote. As to the sixth paragraph, he contended that, since arrests are ordinarily made by the police, the statement, quote, they have arrested Dr. King seven times, end quote, would be read as referring to him. He further contended that the they who did the arresting would be equated with the they who committed the other described acts and with the southern violators. Thus he argued the paragraph would be read as accusing the Montgomery police, and, hence him, of answering Dr. King's protest with, quote, intimidation and violence, end quote, bombing his home, assaulting his person, and charging him with perjury. Respondent and six other Montgomery residents testified that they read some or all of the statements as referring to him in his capacity as commissioner. It is uncontroverted that some of the statements contained in the two paragraphs were not accurate descriptions of events which occurred in Montgomery. Although Negro students staged a demonstration on the State Capitol steps, they sang the national anthem, and did not, my country, tis of thee. Although nine students were expelled by the State Board of Education, this was not for leading the demonstration at the Capitol, but for demanding service at a lunch counter in the Montgomery County Courthouse on another day. Not the entire student body, but most of it had protested the expulsion, not by refusing to register, but by boycotting classes on a single day. Virtually all the students did register for the ensuing semester. The campus dining hall was not pet locked on any occasion, and the only students who may have been barred from eating there were the few who had neither signed a pre-registration application nor requested temporary meal tickets. Although the police were deployed near the campus in large numbers on three occasions, they did not at any time quote ring end quote the campus, and they were not called to the campus in connection with the demonstration on the State Capitol steps as the third paragraph implied. Dr. King had not been arrested seven times, but only four, and although he claimed to have been assaulted some years earlier, in connection with his arrest for loitering outside a courtroom, one of the officers who made the arrest denied that there was such an assault. On the premise that the charges in the sixth paragraph could be read as referring to him, Respondent was allowed to prove that he had not participated in the events described. Although Dr. King's home had, in fact, been bombed twice when his wife and child were there, both of these occasions antedated Respondent's tenure as commissioner, and the police were not only not implicated in the bombings, but they had made every effort to apprehend those who were. Three of Dr. King's four arrests took place before Respondent became commissioner, although Dr. King had, in fact, been indicted, he was subsequently acquitted on two counts of perjury, each of which carried a possible five-year sentence. Respondent had nothing to do with procuring the indictment. Respondent made no effort to prove that he suffered actual pecuniary loss as a result of the alleged libel. Footnote. Approximately 394 copies of the edition of The Times containing the advertisement were circulated in Alabama. Of these, about 35 copies were distributed in Montgomery County. The total circulation of The Times for that day was approximately 650,000 copies. End footnote. One of his witnesses, a former employer, testified that if he had believed the statements, he doubted whether he, quote, would want to be associated with anybody who would be a party to such things that are stated in that ad. End quote. And that he would not re-employ Respondent if he believed, quote, that he allowed the police department to do the things that the paper said he did. End quote. But neither this witness nor any of the others testified that he had actually believed the statements in their supposed reference to Respondent. The cost of the advertisement was approximately $4,800, and it was published by The Times upon an order from a New York advertising agency acting for the signatory committee. The agency submitted the advertisement with a letter from A. Philip Randolph, chairman of the committee, certifying that the persons whose names appeared on the advertisement had given their permission. Mr. Randolph was known to The Times's Advertising Acceptability Department as a responsible person, and in accepting the letter as sufficient proof of authorization, it followed its established practice. There was testimony that the copy of the advertisement which accompanied the letter listed only the 64 names appearing under the text, and that the statement, quote, we in the South warmly endorse this appeal, end quote, and the list of names there under, which included those of the individual petitioners were subsequently added when the first proof of the advertisement was received. Each of the individual petitioners testified that he had not authorized the use of his name, and that he had been unaware of its use until receipt of Respondent's demand for retraction. The manager of the Advertising Acceptability Department testified that he had approved the advertisement for publication because he knew nothing to cause him to believe that anything in it was false, and because it bore the endorsement of, quote, a number of people who are well known and whose reputation, end quote, he, quote, had no reason to question, end quote. Neither he nor anyone else at Times made an effort to confirm the accuracy of the advertisement, either by checking it against recent Times news stories relating to some of the described events, or by any other means. Alabama law denies a public officer recovery of punitive damages in a libel action brought on account of a publication concerning his official conduct unless he first makes a written demand for a public retraction, and the defendant fails or refuses to comply. Respondent served such a demand upon each of the petitioners. None of the individual petitioners responded to the demand, primarily because each took the position that he had not authorized the use of his name on the advertisement, and therefore had not published the statements that Respondent alleged had libeled him. The Times did not publish a retraction in response to the demand, but wrote Respondent a letter stating, among other things, that, quote, we are somewhat puzzled as to how you think the statements in any way reflect on you, end quote, end quote. Respondent filed this suit a few days later without answering the letter. The Times did, however, subsequently publish a retraction of the advertisement upon the demand of Governor John Patterson of Alabama, who asserted that the publication charged him with, quote, great. misconduct and improper actions and omissions as Governor of Alabama and ex-officio, Chairman of the State Board of Education of Alabama, end quote. When asked to explain why there had been a retraction for the Governor, but not for Respondent, the Secretary of the Times testified, quote, we did that because we didn't want anything that was published by the Times to be a reflection on the State of Alabama, and the Governor was, as far as we could see, the embodiment of the State of Alabama, and the proper representative of the State. And, furthermore, we had, by that time, learned more of the actual facts, which the end purported to recite, and, finally, the end did refer to the action of the State authorities and the Board of Education, presumably of which the Governor is an ex-officio Chairman, end quote. On the other hand, he testified that he did not think that, quote, any of the language in there referred to Mr. Sullivan, end quote. The trial judge submitted the case to the jury under instructions that the statements in the advertisement were, quote, libelous per se, end quote, and were not privileged, so that petitioners might be held liable if the jury found that they had published the advertisement, and that the statements were made, quote, of, and concerning, end quote, respondent. The jury was instructed that, because the statements were libelous per se, quote, the law implies legal injury from the bare fact of publication itself, end quote. Quote, falsity and malice are presumed, end quote. Quote, general damages need not be alleged or proved, but are presumed, end quote. And, quote, punitive damages may be awarded by the jury, even though the amount of actual damages is neither found nor shown, end quote. In a word of punitive damages, as distinguished from, quote, general, end quote, damages, which are compensatory in nature, apparently requires proof of actual malice under Alabama law. End the judge charged that, quote, mere negligence or carelessness is not evidence of actual malice or malice, in fact, and does not justify in a word of exemplary or punitive damages, end quote. He refused to charge, however, that the jury must be, quote, convinced, end quote, of malice, in the sense of, quote, actual intent, end quote, to harm or, quote, gross negligence and recklessness, end quote, to make such an award. And he also refused to require that a verdict for a respondent differentiate between compensatory and punitive damages. The judge rejected Petitioner's contention that his rulings abridged the freedom of speech and of the press that are guaranteed by the First and Fourteenth Amendments. In affirming the judgment, the Supreme Court of Alabama sustained the trial judge's rulings and instructions in all respects. It held that, quote, where the words published tend to injure a person libeled by them in his reputation, profession, trade, or business, or charge him with an indictable offense, or tend to bring the individual into public contempt. They are libelous per se, end quote, that, quote, the matter complained of is, under the above doctrine, libelous per se, if it was published of and concerning the plaintiff, end quote, and that it was actionable without, quote, proof of pecuniary injury, such injury being implied, end quote. It approved the trial court's ruling that the jury could find the statements to have been made, quote, of and concerning, end quote, respondent stating, quote, we think it common knowledge that the average person knows that municipal agents, such as police and firemen and others, are under the control and direction of the city governing body and more, particularly under the direction and control of a single commissioner. In measuring the performance or deficiencies of such groups, praise or criticism is usually attached to the official in complete control of the body, end quote. In sustaining the trial court's determination that the verdict was not excessive, the court said that malice could be inferred from the times, quote, irresponsibility, end quote, in printing the advertisement while, quote, the times in its own files had articles already published, which would have demonstrated the falsity of the allegations in the advertisement, end quote. From the times' failure to retract for respondent while retracting for the governor, whereas the falsity of some of the allegations was unknown to the times, end quote, the matter contained in the advertisement was equally false as to both parties, end quote. And from the testimony of the times' secretary that, apart from the statement that the dining hall was padlocked, he thought the two paragraphs were, quote, substantially correct, end quote. The court reaffirmed the statement in an earlier opinion that, quote, there is no legal measure of damages in cases of this character, end quote. It rejected petitioners' constitutional contentions with the brief statements that, quote, the First Amendment of the U.S. Constitution does not protect libelous publications, end quote. End quote, the Fourteenth Amendment is directed against state action and not private action, end quote. Because of the importance of the constitutional issues involved, we granted the separate petitions for certiorari of the individual petitioners and of the times' 371 U.S. 946. We reversed the judgment. We hold that the rule of law applied by the Alabama courts is constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a state official against the critics of his official conduct. Since we sustain the contentions of all the petitioners under the First Amendment's guarantees of freedom of speech and of the press as applied to the states by the Fourteenth Amendment, we do not decide the questions presented by the other claims of violation of the Fourteenth Amendment. The individual petitioners contend that the judgment against them offends the due process clause, because there was no evidence to show that they had published or authorized the publication of the alleged libel, and that the due process and equal protection clauses were violated by racial segregation and racial bias in the courtroom. The Times contends that the assumption of jurisdiction over its corporate person by the Alabama courts overreaches the territorial limits of the due process clause. The latter claim is foreclosed from our review by the ruling of the Alabama courts that the Times entered a general appearance in the action and thus waived its jurisdictional objection. We cannot say that this ruling lacks, quote, fair or substantial support, end quote, in prior Alabama decisions. End footnote. We further hold that under the proper safeguards, the evidence presented in this case is constitutionally insufficient to support the judgment for a respondent. 1. We may dispose at the outset of two grounds asserted to insulate the judgment of the Alabama courts from constitutional scrutiny. The first is a proposition relied on by the State Supreme Court that, quote, the Fourteenth Amendment is directed against state action and not private action, end quote. That proposition has no application to this case. Although this is a civil lawsuit between private parties, the Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that that law has been applied in a civil action and that it is common law only, though supplemented by statute. The test is not the form in which state power has been applied, but whatever the form, whether such power has, in fact, been exercised. The second contention is that the constitutional guarantees of freedom of speech and of the press are inapplicable here, at least so far as the Times is concerned, because the allegedly libelous statements were published as part of a paid, quote, commercial, end quote, advertisement. The argument relies on Valentine v. Chesterton, 316 U.S. 52, where the court held that a city ordinance forbidding street distribution of commercial and business advertising matter did not abridge the First Amendment freedoms, even as applied to a hand bill having a commercial message on one side but a protest against certain official action on the other. The reliance is wholly misplaced. The court in Chesterton reaffirmed the constitutional protection for, quote, the freedom of communicating information and disseminating opinion, end quote. Its holding was based on the factual conclusions that the hand bill was, quote, purely commercial advertising, end quote. And that the protest against official action had been added only to evade the ordinance. The publication was not a commercial advertisement in the sense in which the word was used in Chesterton. It communicated information, expressed opinion, recited grievances, protested claimed abuses, and sought financial support on behalf of a movement whose existence and objectives are matters of the highest public interest and concern. That the Times was paid for publishing the advertisement is as immaterial in this connection as is the fact that the newspapers and books are sold. Any other conclusion would discourage newspapers from carrying, quote, editorial advertisements, end quote, of this type. And so might shut off an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities who wish to exercise their freedom of speech even though they are not members of the press. The effect would be to shackle the First Amendment in an attempt to secure, quote, the widest possible dissemination of information from diverse and antagonistic sources, end quote. To avoid placing such a handicap upon the freedoms of expression, we hold that if the allegedly libelous statements would otherwise be constitutionally protected from the present judgment, they do not forfeit that protection because they were published in the form of a paid advertisement. Two. Under Alabama law, as applied in this case, a publication is, quote, libelous per se, end quote. If the words, quote, tend to injure a person in his reputation, end quote, or to, quote, bring him into public contempt, end quote. The trial court stated that the standard was met if the words are such as to, quote, injure him in his public office or impute misconduct to him in his office or want of official integrity or want of fidelity to a public trust, end quote. The jury must find that the words were published, quote, of, and concerning, end quote. The plaintiff, but where the plaintiff is a public official, his place in the governmental hierarchy is sufficient evidence to support a finding that his reputation has been affected by statements that reflect upon the agency of which he is in charge. Once libel per se has been established, the defendant has no defense as to stated facts unless he can persuade the jury that they were true in all their particulars. His privilege of, quote, fair comment, end quote, for expressions of opinion depends on the truth of the facts upon which the comment is based. Unless he can discharge the burden of proving truth, general damages are presumed and may be awarded without proof of pecuniary injury. The showing of actual malice is apparently a prerequisite to recovery of punitive damages, and the defendant may in any event forestall a punitive award by a retraction meeting the statutory requirements. Good motives and belief in truth do not negate an inference of malice, but are relevant only in mitigation of punitive damages, if the jury chooses to accord them weight. The question before us is whether this rule of liability as applied to an action brought by a public official against critics of his official conduct abridges the freedom of speech and of the press, that is guaranteed by the First and Fourteenth Amendment. Respondent relies heavily as did the Alabama courts on statements of this court to the effect that the Constitution does not protect libelous publications. Those statements do not foreclose our inquiry here. None of the cases sustained the use of libel laws to impose sanctions upon expression critical of the official conduct of public officials. The dictum in penitent verse Florida that, quote, when the statements amount to defamation, a judge has such remedy in damages for libel as do other public servants end, quote, implied no view as to what remedy might constitutionally be afforded to public officials. In Buharnes verse Illinois, the court sustained an Illinois criminal libel statute as applied to a publication held to be both defamatory of a racial group and, quote, liable to cause violence and disorder, end, quote. But the court was careful to note that it, quote, retains and exercises authority to nullify action which encroaches on freedom of utterance under the guise of punishing libel, end, quote. For, quote, public men are, as it were, public property, end, quote. End, quote, discussion cannot be denied, and the right as well as the duty of criticism must not be stifled, end, quote. In the only previous case that did present the question of constitutional limitations upon the power to award damages for libel of a public official, the court was equally divided, and the question was not decided. In deciding the question now, we are compelled by neither precedent nor policy to give any more weight to the epithet, quote, libel, end, quote. Then we have, to other, quote, mere labels, end, quote, of state law, like insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and the various other formula for the repression of expression that has been challenged in the court. Libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment. The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard we have said, quote, was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people, end, quote. Roth v. United States 354, U.S. 476, 484, quote, the maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means and opportunity essential to the security of the republic is the fundamental principle of our constitutional system, end, quote. Quote, it is a prized American privilege to speak one's mind, although not always, with perfect good taste on all public institutions, end, quote. And this opportunity is to be afforded for, quote, vigorous advocacy, end, quote, no less than, quote, abstract discussion, end, quote. The First Amendment, said Judge Learne at hand, presupposes that right conclusions are more likely to be gathered out of a multitude of tongues than through any kind of authoritative selection. To many this is and always will be folly, but we have staked upon it our all. End of Section 21. Section 22 of a collection of Supreme Court opinions by the United States Supreme Court. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. New York Times Company v. Sullivan, 376 U.S. 254. Decided March 9, 1964. Part 2. Please note, this is a reading of the opinion of the court only. This reading does not include the syllabus or any concurring or dissenting opinions. For ease of listening, this reading omits legal citations found within the text of the court's opinion. Mr. Justice Brondies, in his concurring opinion in Whitney v. California, 274 U.S. 357, gave the principle its classic formulation, quote, Those who won our independence believed that public discussion is a political duty and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject, but they knew that order cannot be secured merely through fear of punishment for its infraction. That it is hazardous to discourage thought, hope, and imagination. That fear breeds repression. That repression breeds hate. That hate menaces stable government. That the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies. And that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coursed by law, the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the constitution so that free speech and assembly should be guaranteed. End quote. Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open. And that it may well include vehement, caustic, and sometimes, unpleasantly sharp attacks on government and public officials. The present advertisement as an expression of grievance and protest on one of the major public issues of our time would seem clearly to qualify for the constitutional protection. The question is whether it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent. Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth, whether administered by judges, juries, or administrative officials, and especially one that puts the burden of proving truth on the speaker. The constitutional protection does not turn upon, quote, the truth, popularity, or social utility of the ideas and beliefs which are offered, end quote. As Madison said, quote, some degree of abuse isn't separable from the proper use of everything, and in no instance is this more true than in that of the press, end quote. In Cantwell v. Connecticut 310, U.S. 296-310, the court declared, quote, in the realm of religious faith and in that of political belief, sharp differences arise. In both fields the tenants of one man may seem the rankest heir to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times resorts to exaggeration, to vilification of men who have been or are prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy. That erroneous statement is inevitable in free debate, and that it must be protected if the freedom of expression are to have the, quote, breathing space, end quote, that they, quote, need to survive, end quote. Was also recognized by the Court of Appeals for the District of Columbia Circuit in Sweeney v. Patterson, 76 U.S. Judge Edgerton spoke for a unanimous court which affirmed the dismissal of a congressman's libel suit based upon a newspaper article charging him with anti-Semitism in opposing a judicial appointment. He said, quote, cases which impose liability for erroneous reports of the political conduct of officials reflect the obsolete doctrine that the governed must not criticize their governors. The interest of the public here outweighs the interest of appellant, or any other individual. The protection of the public requires not merely discussion, but information. Political conduct and views which some respectable people approve and others condemn are constantly imputed to congressmen. Heirs of fact, particularly in regard to the man's mental states and processes, are inevitable. Whatever is added to the field of libel is taken from the field of free debate. End quote. Footnote. See also Mill on Liberty, Oxford Blackwell, 1947, at 47. Quote, And, in many other respects, may not deserve to be considered ignorant or incompetent, that it is rarely possible on adequate grounds conscientiously to stamp the misrepresentation as morally culpable. And still less could law presume to interfere with this kind of controversial misconduct. End quote. End of footnote. Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error. Where judicial officials are involved, this court has held that concern for dignity and reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision. This is true even though the utterance contains, quote, half truths, end quote, end quote, misinformation, end quote. Such repression can be justified, if at all, only by a clear and present danger of the obstruction of justice. If judges are to be treated as, quote, men of fortitude, able to thrive in a hearty climate, end quote, surely the same must be true of other government officials, such as elected city commissioners. Footnote. The climate in which public officials operate, especially during a political campaign, has been described by one commentator in the following terms, quote, charges of gross incompetence, disregard of the public interest, communist sympathies, and the like usually have filled the air, and hints of bribery, embezzlement, and other criminal conduct are not infrequent, end quote. Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism, and hence diminishes their official reputations. If neither factual air nor defamatory content suffices to remove the constitutional shield from criticisms of official conduct, the combination of the two elements is no less inadequate. This is the lesson to be drawn from the great controversy over the Sedition Act of 1798, one Stat. 596, which first crystallized the national awareness of the central meaning of the First Amendment. That statute made it a crime punishable by a $5,000 fine and five years in prison, quote, if any person shall write, print, utter, or publish any false, scandalous, and malicious writing or writings against the government of the United States, or either House of the Congress or the President with intent to defame, or to bring them or either of them into contempt or disrepute, or to excite against them or either of any of them, the hatred of the good people of the United States, end quote. The Act allowed the defendant the defense of truth, and provided that the jury were to be judges both of the law and the facts. Despite these qualifications, the Act was vigorously condemned as unconstitutional in an attack joined in by Jefferson and Madison. In the famous Virginia Resolutions of 1798, the General Assembly of Virginia resolved that it, quote, death particularly protest against the palpable and alarming infractions of the Constitution in the two late cases of the alien and sedition acts passed at the last session of Congress. This addition act exercises a power not delegated by the Constitution, but on the contrary, expressly and positively forbidden by one of the amendments there, too, a power which more than any other ought to produce universal alarm because it is leveled against the right of freely examining public characters and measures, and a free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right. End quote. Madison prepared the report in support of the protest. His premise was that the Constitution created a form of government under which, quote, the people, not the government, possessed the absolute sovereignty. End quote. The structure of the government dispersed power in reflection of the people's distrust of concentrated power and of power itself at all levels. This form of government was, quote, altogether different, end quote, from the British form under which the crown was sovereign and the people were subjects. Quote. Is it not natural and necessary under such different circumstances? End quote. He asked, quote, that a different degree of freedom in the use of the press should be contemplated. End quote. Earlier in a debate in the House of Representatives, Madison had said, quote, if we advert to the nature of Republican government, we shall find that the sensorial power is in the people over the government, and not in the government over the people. End quote. Of the exercise of that power by the press, his report said, quote, in every state, probably in the Union, the press has exerted a freedom in canvassing the merits and measures of public men of every description, which has not been confined to the strict limits of the common law. On this footing the freedom of the press has stood. On this foundation it yet stands. End quote. The right of free public discussion of the stewardship of public officials was, thus in Madison's view, a fundamental principle of the American form of government. Footnote. The report on the Virginia resolutions further stated, quote, it is manifestly impossible to punish the intent to bring those who administer the government into disrepute or contempt without striking at the right of freely discussing public characters and measures, which again is equivalent to a protection of those who administer the government. If they should at any time deserve the contempt or hatred of the people against being exposed to it by free, animad versions on their characters and conduct, nor can it be a doubt that a government thus entrenched in penal statutes against the just and natural effects of a culpable administration will easily evade the responsibility which is essential to a faithful discharge of its duty. Let it be recollected, lastly, that the right of electing the members of the government constitutes more particularly the essence of a free and responsible government. The value and efficiency of this right depends on the knowledge of the comparative merits and demerits of the candidates for public trust, and on the equal freedom, consequently, of examining and discussing these merits and demerits of the candidates respectively. End quote. End footnote. Although the Sedition Act was never tested in this court, footnote, the act expired by its terms in 1800 and one, end footnote. The attack upon its validity has carried the day in the court of history. Fines levied in its prosecution were repaid by act of Congress on the ground that it was unconstitutional. Calhoun reporting to the Senate on February 4, 1836 assumed that its invalidity was a matter, quote, which no one now doubts, end quote. Jefferson as president pardoned those who had been convicted and sentenced under the act and remitted their fines, stating, quote, I discharged every person under punishment or prosecution under the Sedition Act because I considered and now consider that law to be a nullity as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image. End quote. The invalidity of the act has also been assumed by justices of this court. These views reflect a broad consensus that the act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment. There is no force in respondents argument that the constitutional limitations implicit in the history of the Sedition Act applied only to Congress and not to the state. It is true that the First Amendment was originally addressed only to action by the federal government and that Jefferson, for one, while denying the power of Congress, quote, to control the freedom of the press, end quote. Recognized such a power in the states. But this distinction was eliminated with the adoption of the 14th Amendment and the application to the states of the First Amendment's restrictions. What a state may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel. The fear of damage awards under a rule such as that invoked by the Alabama courts here may be markedly more inhibiting than the fear of prosecution under a criminal statute. Alabama, for example, has a criminal libel law which subjects to prosecution, quote, any person who speaks, writes, or prints of, and concerning another any accusation falsely and maliciously importing the commission by such person of a felony or any other indigable offense involving moral turpitude, end quote. And which allows as punishment upon conviction of fine not exceeding $500 and a prison sentence of six months. Presumably a person charged with violation of this statute enjoys ordinary criminal law safeguards such as the requirements of an indictment and of proof beyond a reasonable doubt. These safeguards are not available to the defendant in a civil action. The judgment awarded in this case without the need of any proof of actual pecuniary loss was 1,000 times greater than the maximum fine provided by the Alabama criminal statute and 100 times greater than that provided by the Sedition Act. And since there is no double jeopardy limitation applicable to civil lawsuits, this is not the only judgment that may be awarded against petitioners for the same publication. Footnote. The time states that four other libel suits based on the advertisement have been filed against it by others who have served as Montgomery City commissioners and by the governor of Alabama. That another $500,000 verdict has been awarded in the only one of those cases that has yet gone to trial and that the damages sought in the other three total $2 million. Footnote. Whether or not a newspaper can survive a succession of such judgments, the pall of fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot survive. Plainly, the Alabama law of civil libel is, quote, a form of regulation that creates hazards to protected freedoms markedly greater than those that attend reliance upon the criminal law, end quote. The state rule of law is not saved by its allowance of the defense of truth. A defense for erroneous statements honestly made is no less essential here than was the requirement of proof of guilty knowledge, which, in Smith v. California, we held indispensable to a valid conviction of a bookseller for possessing obscene writings for sale. We said, quote, for if the bookseller is criminally libel without knowledge of the contents, he will tend to restrict the books he sells to those he has inspected, and thus the state will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature. And the bookseller's burden would become the public's burden, for by restricting him, the public's access to reading matter would be restricted. His timidity in the face of his absolute criminal liability thus would tend to restrict the public's access to forms of the printed word, which the state could not constitutionally suppress directly. The bookseller's self-censorship compelled by the state would be a censorship affecting the whole public, hardly less virulent for being privately administered. Through it the distribution of all books, both obscene and not obscene, would be impeded, end quote. A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions, and to do so on peeing of liable judgments virtually unlimited in amount, leads to a comparable, quote, self-censorship, end quote. Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. Footnote Even a false statement may be deemed to make a valuable contribution to public debate, since it brings about, quote, the clearer perception and livelier impression of truth produced by its collision with air, end quote. End footnote Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs, that the alleged liable was true in all its factual particulars. Under such a rule would be critic of official conduct may be deterred from voicing their criticism, even though it is believed to be true, and even though it is, in fact, true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements, which, quote, steer far wider of the unlawful zone, end quote. The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments. The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with, quote, actual malice, end quote. That is, with knowledge that it was false or with reckless disregard of whether it was false or not. An oft-cited statement of a like rule, which has been adopted by a number of state courts, is found in the Kansas case of Coleman v. McClellan, 78, Kansas, 711, 98, page 281, 1908. The state attorney general, a candidate for reelection and a member of the commission charged with the management and control of the state school fund, sued a newspaper publisher for alleged libel in an article purporting to state facts relating to his official conduct in connection with a school fund transaction. The defendant pleaded privilege and the trial judge over the plaintiff's objection instructed the jury that, quote, where an article is published and circulated among voters for the sole purpose of giving what the defendant believes to be truthful information concerning a candidate for public office and for the purpose of enabling such voters to cast their ballot more intelligently than the legal thing is done in good faith and without malice, the article is privileged, although the principal matters contained in the article may be untrue. In fact, and derogatory to the character of the plaintiff, and in such a case the burden is on the plaintiff to show actual malice in the publication of the article, end quote. In answer to a special question, the jury found that the plaintiff had not proved actual malice, and a general verdict was returned for the defendant. Unappeal, the Supreme Court of Kansas in an opinion of Justice Birch, reasoned as follows, quote, It is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the state and to society of such discussions is so vast and the advantages derived are so great that they more than counterbalance the inconvenience of private persons whose conduct may be involved and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great. The public benefit from publicity is so great and the chance of injury to private characters so small that such discussion must be privileged. End quote. The Court thus sustained the trial court's instruction as a correct statement of the law, saying, quote, In such a case the occasion gives rise to a privilege qualified to this extent. Anyone claiming to be defamed by the communication must show actual malice or go remedial-less. This privilege extends to a great variety of subjects and includes matters of public concern, public men, and candidates for office. End quote. Such a privilege of criticism of official conduct is appropriately analogous to the protection afforded a public official when he is sued for liable by a private citizen. Footnote. The privilege immunizing honest misstatements of fact is often referred to as a quote conditional end quote privilege to distinguish it from the quote absolute end quote privilege recognized in judicial, legislative, administrative, and executive proceedings. End footnote. In bar v. Matteo, this court held the utterance of a federal official to be absolutely privileged if made, quote, within the outer perimeter end quote of his duties. The states accord the same immunity to statements of their highest officers, although some differentiate their lesser officials and qualify the privilege they enjoy. But all hold that all officials are protected unless actual malice can be proved. The reason for the official privilege is said to be that the threat of damage suits would otherwise, quote, inhibit the fearless, vigorous, and effective administration of policies of government. End quote. End quote. Dampen the ardor of all but the most resolute or the most irresponsible in the unflinching discharge of their duties. End quote. Analogous considerations support the privilege for the citizen critic of government. It is as much his duty to criticize as it is the official's duty to administer. As Madison said, quote, the sensorial power is in the people over the government and not in the government over the people, end quote. It would give public servants an unjustified preference over the public they serve if critics of official conduct did not have a fair equivalent of the immunity granted to the officials themselves. We conclude that such a privilege is required by the first and fourteenth amendments. Three. We hold today that the Constitution delimits a state's power to award damages for libel in actions brought by public officials against critics of their official conduct. Since this is such an action, the rule requiring proof of actual malice is applicable. While Alabama law apparently requires proof of actual malice for an award of punitive damages where general damages are concerned, malice is, quote, presumed, end quote. Such a presumption is inconsistent with the federal rule, quote, the power to create presumptions is not a means of escape from constitutional restrictions, end quote. Quote, the showing of malice required for the forfeiture of the privilege is not presumed, but is a matter for proof by the plaintiff, end quote. Footnote. We have no occasion here to determine how far down into the lower ranks of government employees the, quote, public official, end quote. Designation would extend for the purpose of this rule, or otherwise to specify categories of persons who would or would not be included. Nor need we here determine the boundaries of the, quote, official conduct, end quote, concept. It is enough for the present case that respondent's position as an elected city commissioner clearly made him a public official, and that the allegations in the advertisement concerned what was allegedly his official conduct as commissioner in charge of the police department. As to the statements alleging the assaulting of Dr. King and the bombing of his home, it is a material that they might not be considered to involve respondent's official conduct if he himself had been accused of perpetrating the assaulting and the bombing. Respondent does not claim that the statements charged him personally with these acts. His contention is that the advertisement connects him with them only in his official capacity as the commissioner supervising the police on the theory that the police might be equated with the, quote, they, end quote, who did the bombing and the assault. Thus, if these allegations can be read as referring to respondent at all, they must be read as describing his performance of his official duties. End footnote. Footnote. Thus the trial judge here instructed the jury that, quote, mere negligence or carelessness is not evidence of actual malice or malice. In fact, it does not justify an award of exemplary or punitive damages in an action for libel. End quote. The court refused, however, to give the following instruction which had been requested by the Times. Quote, I charge you that punitive damages, as the name indicates, are designed to punish the defendant, the New York Times Company, a corporation, and the other defendants in this case. And I further charge you that such punitive damages may be awarded only in the event that you, the jury, are convinced by a fair preponderance of the evidence that the defendant was motivated by personal ill will, that is, actual intent to do the plaintiff harm, or that the defendant was guilty of gross negligence and recklessness, and not of just ordinary negligence, or carelessness in publishing the matter complained of so as to indicate a wanton disregard to plaintiff's rights. End quote. The trial court's error in failing to require any finding of actual malice for an award of general damages makes it unnecessary for us to consider the sufficiency under the federal standard of the instructions regarding actual malice that were given as to punitive damages. End footnote. Since the trial judge did not instruct the jury to differentiate between general and punitive damages, it may be that the verdict was wholly in a word of one or the other, but it is impossible to know, in view of the general verdict returned. Because of this uncertainty, the judgment must be reversed, and the case remanded. Since respondent may seek a new trial, we deem that considerations of effective judicial administration require us to review the evidence in the present record to determine whether it could constitutionally support a judgment for a respondent. This court's duty is not limited to the elaboration of constitutional principles. We must also, in proper cases, review the evidence to make certain that those principles have been constitutionally applied. This is such a case, particularly since the question is one of alleged trespass across, quote, the line between speech unconditionally guaranteed and speech which may legitimately be regulated. End quote. In cases where the line must be drawn, the rule is that we, quote, examine for ourselves the statements in issue and the circumstances under which they were made to see whether they are of a character which the principles of the First Amendment as adopted by the due process clause of the Fourteenth Amendment protect. End quote. We must, quote, make an independent examination of the whole record, end quote, so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression. Footnote. The Seventh Amendment does not, as respondent contains, precludes such an examination by this court. That amendment providing that, quote, no fact tried by a jury shall be otherwise reexamined in any court of the United States, then according to the rules of the common law, end quote, is applicable to state cases coming here. But its ban on reexamination of facts does not preclude us from determining whether governing rules of federal law have been properly applied to the facts. Quote. This court will review the finding of facts by a state court, where a conclusion of law as to a federal right and a finding of fact are so intermingled as to make it necessary in order to pass upon the federal question to analyze the facts. End footnote. Applying these standards, we consider that the proof presented to show actual malice lacks the convincing clarity which the constitutional standard demands, and hints that it would not constitutionally sustain the judgment for a respondent under the proper rule of law. The case of the individual petitioners requires little discussion. Even assuming that they could constitutionally be found to have authorized the use of their names on the advertisement, there is no evidence, whatever, that they were aware of any erroneous statements or were in any way reckless in that regard. The judgment against them is thus without constitutional support. As to the times, we similarly conclude that the facts do not support a finding of actual malice. The statement by the Times Secretary that, apart from the padlocking allegation he thought the advertisement was, quote, substantially correct, end quote, affords no constitutional warrant for the Alabama Supreme Court's conclusion that it was a, quote, Cavalier ignoring of the falsity of the advertisement from which the jury could not have but been impressed with the bad faith of the Times and its maliciousness inferrable therefrom, end quote. The statement does not indicate malice at the time of the publication, even if the advertisement was not, quote, substantially correct, end quote, although the respondents' own proofs tend to show that it was. That opinion was at least a reasonable one, and there was no evidence to impeach the witness's good faith in holding it. The Times's failure to retract upon respondents' demand, although it later retracted upon the demand of Governor Patterson, is likewise not adequate evidence of malice for constitutional purposes. Whether or not a failure to retract may ever constitute such evidence, there are two reasons why it does not hear. First, the letter written by the Times reflected a reasonable doubt on its part as to whether the advertisement could reasonably be taken to refer to respondent at all. Second, it was not a final refusal, since it asked for an explanation on this point, a request that respondent chose to ignore. Nor does the retraction upon the demand of the Governor supply the necessary proof. It may be doubted that a failure to retract, which is not itself evidence of malice, can retroactively become such by virtue of a retraction subsequently made to another party. But in any event, that did not happen here, since the explanation given by the Times's secretary for the distinction drawn between respondent and the Governor was a reasonable one, the good faith of which was not impeached. Finally, there is evidence that the Times published the advertisement without checking its accuracy against the news stories of the Times's own files. The mere presence of the stories in the files does not, of course, establish that the Times, quote, knew, end quote, the advertisement was false, since the state of mind required for actual malice would have to be brought home to the persons in the Times's organization, having responsibility for the publication of the advertisement. With respect to the failure of those persons who make the check, the record shows that they relied upon their knowledge of the good reputation of many of those whose names were listed as sponsors of the advertisement, and upon the letter from A. Philip Randolph, known to them as a responsible individual, certifying that the use of the names was authorized. There was testimony that the persons handling the advertisement saw nothing in it that would render it unacceptable under the Times's policy of rejecting advertisements containing, quote, attacks of a personal character, end quote. Their failure to reject it on this ground was not unreasonable. We think that the evidence against the Times supports at most a finding of negligence in failing to discover the misstatements, and is constitutionally insufficient to show the recklessness that is required for a finding of actual malice. We also think the evidence was constitutionally defective in another respect. It was incapable of supporting the juries finding that the alleged libelous statements were made, quote, of, and concerning, end quote, respondent. Respondent relies on the words of the advertisement and the testimony of six witnesses to establish a connection between it and himself. Thus in his brief to this court he states, quote, the reference to respondent as police commissioner is clear from the ad. In addition, the jury heard the testimony of a newspaper editor, a real estate and insurance man, the sales manager of a men's clothing store, a food equipment man, a service station operator, and the operator of a truck line for whom respondent had formerly worked. Each of these witnesses stated that he associated the statements with respondent, end quote. There was no reference to respondent in the advertisement, either by name or official position. A number of the allegedly libelous statements, the charges that the dining hall was padlocked, and that Dr. King's home was bombed, his person assaulted, and a perjury prosecution instituted against him did not even concern the police. Despite the ingenuity of the arguments which would attach his significance to the word, quote, they, end quote, it is plain that these statements could not reasonably be read as accusing respondent of personal involvement in the acts, end question. The statement upon which respondent principally relies as referring to him are the two allegations that did concern the police or police functions. That, quote, truckloads of police ringed the Alabama State College campus, end quote, after the demonstration on the state capital steps, and that Dr. King had been, quote, arrested seven times, end quote. These statements were false only in that the police had been, quote, deployed near, end quote, the campus, but had not actually, quote, ringed, end quote, it, and had not gone there in connection with the state capital demonstration, and in that Dr. King had been arrested only four times. The ruling that these discrepancies between what was true and what was asserted were sufficient to injure respondent's reputation may itself raise constitutional problems, but we need not consider them here. Although the statements may be taken as referring to the police, they did not, on their face, make even an oblique reference to respondent as an individual. Support for asserted reference must therefore be sought in the testimony of respondent's witnesses, but none of them suggested any basis for the belief that respondent himself was attacked in the advertisement beyond the bare fact that he was in overall charge of the police department and thus bore official responsibility for police conduct. To the extent that some of the witnesses thought respondent to have been charged with ordering or approving the conduct or otherwise being personally involved in it, they based this notion, not on any statements in the advertisement, and not on any evidence that he had, in fact, been so involved, but solely on the unsupported assumption that, because of his official position, he must have been. This reliance on the bare fact of respondent's official position was made explicit by the Supreme Court of Alabama. That court, in holding that the trial court, quote, did not err in overruling the demurrer of the times in the aspect of the libelous matter, was not of and concerning the plaintiff, end, quote, based its ruling on the proposition that, quote, We think it common knowledge that the average person knows that municipal agents, such as police and firemen and others, are under the control and direction of the city governing body, and more particularly under the direction and control of a single commissioner. In measuring the performance or deficiencies of such groups, praise or criticism is usually attached to the official incomplete control of the body. This proposition has disquieting implications for criticism of governmental conduct. For good reason, no court of last resort in this country has ever held or even suggested that prosecutions for libel on government have any place in the American system of jurisprudence. The present proposition would sidestep this obstacle by transmuting criticism of government, however impersonal it may seem on its face into personal criticism and hence potential libel of the officials of whom the government is composed. There is no legal alchemy by which a state may thus create the cause of action that would otherwise be denied for a publication which, as respondent himself said of the advertisement, quote, reflects not only on me but on the other commissioners and the community, end quote. Reason as it does the possibility that a good faith critic of government will be penalized for his criticism, the proposition relied on by the Alabama court strikes at the very center of the constitutionally protected area of free expression. Footnote, insofar as the proposition means only that the statements about police conduct libeled respondent by implicitly criticizing his ability to run the police department, recovery is also precluded in this case by the doctrine of fair comment. Since the Fourteenth Amendment requires recognition of the conditional privilege for honest misstatements of fact, it follows that a defense of fair comment must be afforded for honest expression of opinion based upon privileged as well as true statements of fact. Those defenses are of course defeasible if the public official proves actual malice, as was not done here. Footnote We hold that such a proposition may not constitutionally be utilized to establish that an otherwise impersonal attack on government operations was a libel of any official responsible for those operations. Since it was relied on exclusively here and there was no other evidence to connect the statements with respondent, the evidence was constitutionally insufficient to support a finding that the statements referred to respondent. The judgment of the Supreme Court of Alabama is reversed, and the case is remanded to that court for further proceedings, not inconsistent with this opinion. Reversed and remanded. End of section 22