with whom The Chief Justice, Justice White, and Justice Rehnquist join, dissenting.
The issue the Court resolves today will make a difference in only one category of cases — those in which a private individual can prove that he was libeled by a defendant who was at least negligent. For unless such a plaintiff can overcome the burden imposed by Gertz v. Robert Welch, Inc., 418 U. S. 323, 347 (1974), he cannot recover regardless of how the burden of proof on the issue of truth or falsity is allocated. By definition, therefore, the only litigants — and the only publishers — who will benefit from today’s decision are those who act negligently or maliciously.
The Court, after acknowledging the need to “‘accommo-dat[e] . . . the law of defamation and the freedoms of speech and press protected by the First Amendment,’” ante, at 768 (quoting Gertz v. Robert Welch, Inc., 418 U. S., at 325), decides to override “the common-law presumption” retained by several States 1 that “defamatory speech is false” because of 781 the need “[t]o ensure that true speech on matters of public concern is not deterred.” Ante, at 776-777. I do not agree that our precedents require a private individual to bear the risk that a defamatory statement — uttered either with a mind toward assassinating his good name or -with careless indifference to that possibility — cannot be proven false. By attaching no weight to the State’s interest in protecting the private individual’s good name, the Court has reached a pernicious result.
The state interest in preventing and redressing injuries to reputation is obviously important. As Justice Stewart eloquently reminded us in his concurrence in Rosenblatt v. Baer, 383 U. S. 75, 92-94 (1966):
“The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.
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“. . . The First and Fourteenth Amendments have not stripped private citizens of all means of redress for inju782ries inflicted upon them by careless liars. The destruction that defamatory falsehood can bring is, to be sure, often beyond the capacity of the law to redeem. Yet, imperfect though it is, an action for damages is the only hope for vindication or redress the law gives to a man whose reputation has been falsely dishonored.
“Moreover, the preventive effect of liability for defamation serves an important public purpose. For the rights and values of private personality far transcend mere personal interests. Surely if the 1950’s taught us anything, they taught us that the poisonous atmosphere of the easy lie can infect and degrade a whole society.” 2
While deliberate or inadvertent libels vilify private personages, they contribute little to the marketplace of ideas. In assaying the First Amendment side of the balance, it helps to remember that the perpetrator of the libel suffers from its failure to demonstrate the truth of its accusation only if the “private-figure” plaintiff first establishes that the publisher is at “fault,” 418 U. S., at 347 — i. e., either that it published its libel with “actual malice” in the New York Times sense (“with knowledge that it was false or with reckless disregard of whether it was false or not,” New York Times Co. v. Sullivan, 376 U. S. 254, 279-280 (1964)), or that it published with that degree of careless indifference characteristic of negligence. Far from being totally in the dark about “how much 783 of the speech affected by the allocation of the burden of proof is true and how much is false,” ante, at 776, the antecedent fault determination makes irresistible the inference that a significant portion of this speech is beyond the constitutional pale. 3 This observation is almost tautologically true with regard to libels published with “actual malice.” For that standard to be met, the publisher must come close to willfully blinding itself to the falsity of its utterance. 4 The observation is also valid, albeit to a lesser extent, with respect to 784 defamations uttered with “fault.” 5 Thus, while the public’s interest in an uninhibited press is at its nadir when the publisher is at fault or worse, society’s “equally compelling” need 785 for judicial redress of libelous utterances is at its zenith. Time, Inc. v. Firestone, 424 U. S. 448, 456 (1976).
To appreciate the thrust of the Court’s holding, we must assume that a private-figure libel plaintiff can prove that a story about him was published with “actual malice” — that is, without the publisher caring in the slightest whether it was false or not. Indeed, in order to comprehend the full ramifications of today’s decision, we should assume that the publisher knew that it would be impossible for a court to verify or discredit the story and that it was published for no other purpose than to destroy the reputation of the plaintiff. Even if the plaintiff has overwhelming proof of malice — in both the common-law sense and as the term was used in New York Times Co. v. Sullivan — the Court today seems to believe that the character assassin has a constitutional license to defame. 6
In my opinion deliberate, malicious character assassination is not protected by the First Amendment to the United States Constitution. That Amendment does require the target of a defamatory statement to prove that his assailant was at fault, and I agree that it provides a constitutional shield for truthful statements. I simply do not understand, however, why a character assassin should be given an absolute license to defame by means of statements that can be neither verified nor disproved. The danger of deliberate defamation by reference to unprovable facts is not a merely speculative or hypothetical concern. Lack of knowledge about third parties, the loss of critical records, an uncertain recollection about events that occurred long ago, perhaps during a period of special stress, the absence of eyewitnesses — a host of fac 786 tors — may make it impossible for an honorable person to disprove malicious gossip about his past conduct, his relatives, his friends, or his business associates.
The danger of which I speak can be illustrated within the confines of this very case. Appellants published a series of five articles proclaiming that “Federal authorities . . . have found connections between Thrifty and underworld figures,” App. A65; that “Federal agents have evidence of direct financial involvement in Thrifty by [Joseph] Scalleat,” a “leader of organized crime in northeastern Pennsylvania,” id., at A72; and that “the Thrifty Beverage beer chain . . . had connections itself with organized crime,” id., at A80. 7 The defamatory character of these statements is undisputed. Yet the factual basis for the one specific allegation contained in them is based on an admitted relationship between appellees and a third party. The truth or falsity of that statement depends on the character and conduct of that third party — a matter which the jury may well have resolved against the plaintiffs on the ground that they could not disprove the allegation on which they bore the burden of proof. 8
Despite the obvious blueprint for character assassination provided by the decision today, the Court’s analytical approach — by attaching little or no weight to the strong state interest in redressing injury to private reputation — provides a wholly unwarranted protection for malicious gossip. As I understand the Court’s opinion, its counterintuitive result is derived from a straightforward syllogism. The major premise seems to be that “the First Amendment’s protection of true speech on matters of public concern,” ante, at 777, is 787 tantamount to a command that no rule of law can stand if it will exclude any true speech from the public domain. The minor premise is that although “we cannot know how much of the speech affected by the allocation of the burden of proof is true and how much is false,” ante, at 776, at least some unverifiable gossip is true. From these premises it necessarily follows that a rule burdening the dissemination of such speech would contravene the First Amendment. Accordingly, “a private-figure plaintiff must bear the burden of showing that the speech at issue is false before recovering damages for defamation from a media defendant.” Ante, at 777.
The Court’s result is plausible however, only because it grossly undervalues the strong state interest in redressing injuries to private reputations. The error lies in its initial premise, with its mistaken belief that doubt regarding the veracity of a defamatory statement must invariably be resolved in favor of constitutional protection of the statement and against vindication of the reputation of the private individual. To support its premise, the Court relies exclusively on our precedents requiring the government to bear the burden of proving that a restriction of speech is justified. See ante, at 777-778. Whether such restrictions appear in the form of legislation burdening the speech of particular speakers or of particular points of view, or of common-law actions punishing seditious libel, the Court is doubtlessly correct that the government or its agents must at a minimum shoulder the burden of proving that the speech is false and must do so with sufficient reliability that we can be confident that true speech is not suppressed. It was to achieve this reliability that the Court, in New York Times Co. v. Sullivan, 376 U. S. 254 (1964), incorporated into the First Amendment the then-emergent common-law “privilege for [good-faith] criticism of official conduct.” Id., at 282. See id., at 282, n. 21. Because “erroneous statement is inevitable in free debate, and [because] it must be protected if the freedoms of expres 788 sion are to have the ‘breathing space’ that they ‘need ... to survive, N.A.A.C.P. v. Button, 371 U. S. 415, 433 [1963],” id., at 271-272, this privilege is defeasible only if the defamatory statement “was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not,” id., at 279-280. “Allowance of the defense of truth, with the burden of proving it on the defendant,” was found wanting because it did not “mean that only false speech [would] be deterred” — doubts regarding whether truth “can be proved in court or fear of the expense of having to do so” would force good-faith critics of official conduct to “ ‘steer far wider of the unlawful zone,’ ” id., at 279 (quoting Speiser v. Randall, 357 U. S. 513, 526 (1958)). 9
Even assuming that attacks on the reputation of a public figure should be presumed to be true, however, a different calculus is appropriate when a defamatory statement disparages the reputation of a private individual. 10 In that case, the overriding concern for reliable protection of truthful statements must make room for “[t]he legitimate state interest underlying the law of libel” — “the compensation of individuals for the harm inflicted on them by defamatory falsehood.” Gertz v. Robert Welch, Inc., 418 U. S., at 341. A public official, of course, has no “less interest in protecting his reputation than an individual in private life.” Rosenbloom v. Metromedia, 403 U. S. 29, 46 (1971) (opinion of 789 Brennan, J.). But private persons are “more vulnerable to injury” and “more deserving of recovery” — more vulnerable because they lack “access to the channels of effective communication ... to counteract false statements”; more deserving because they have “relinquished no part of [their] good name[s]” by “thrust[ing] themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” Gertz v. Robert Welch, Inc., 418 U. S., at 344-345.
Recognition of the “strong and legitimate [state] interest in compensating private individuals for injury to reputation,” id., at 348-349, exposes the untenability of the Court’s methodology: the burden of proof in “private-figure” libel suits simply cannot be determined by reference to our precedents having the reputations of “public figures” in mind. In libel cases brought by the latter category of plaintiffs,
“we view an erroneous verdict for the plaintiff as most serious. Not only does it mulct the defendant for an innocent misstatement . . . but the possibility of such error . . . would create a strong impetus toward self-censorship, which the First Amendment cannot tolerate.” Rosenbloom v. Metromedia, 403 U. S., at 50 (opinion of Brennan, J.).
In libel suits brought by private individuals, in contrast, “the state interest in compensating injury to the reputation of private individuals requires that a different rule should obtain.” Gertz v. Robert Welch, Inc., 418 U. S., at 343. To be sure, both categories of cases involve “speech that matters.” Id., at 341. But “[t]he extension of the New York Times test” to every item of public interest “would abridge this legitimate state interest to a degree that we find unacceptable. ” Id., at 346. 11 Accordingly, in Gertz v. Robert Welch, Inc., this 790 Court rejected the Rosenbloom plurality’s assumption that the risk of error must invariably be borne by the libel plaintiff, regardless of his or her status, as long as the defamatory statement touches “matters of public or general concern.” Rosenbloom v. Metromedia, 403 U. S., at 44. Gertz thus forecloses the Court’s unacknowledged reliance on the discredited analysis of the Rosenbloom plurality; where private-figure libel plaintiffs are involved, the First Amendment does not “requir[e] us to tip [the scales] in favor of protecting true speech” merely because that speech addresses “matters of public concern.” Ante, at 776. See 418 U. S., at 345-346. See also Time, Inc. v. Firestone, 424 U. S., at 454-456 (refusing to “reinstate the doctrine advanced in the plurality opinion in Rosenbloom” in the guise of protection for inaccurate reporting on “public controversies” or on judicial proceedings).
In my view, as long as publishers are protected by the requirement that the plaintiff has the burden of proving fault, there can be little, if any, basis for a concern that a significant amount of true speech will be deterred unless the private person victimized by a malicious libel can also carry the burden of proving falsity. The Court’s decision trades on the good names of private individuals with little First Amendment coin to show for it.
I respectfully dissent.
