448 POWELL, J., concurring fendant; that defendant's counterclaim for divorce be and the same is hereby granted, and the bonds of matrimony which have heretofore existed between the parties are hereby forever dissolved." App. 528. The remaining paragraphs in the order portion of the decision relate to child custody and support, disposition of certain property, attorney's fees, and the award of $3,000 per month to the wife (respondent) as alimony. There is no reference whatever in the "order" portion of the decision either to "extreme cruelty" or "adultery," the only grounds relied upon by the husband. But the divorce was granted to him following an express finding "that the equities are with the defendant [the husband]." Thus, on the face of the opinion itself, the husband had counterclaimed for divorce on the grounds of extreme cruelty and adultery, and the court had found the equities to be with him and had granted his counterclaim for divorce. Apart from the awarding of alimony to the wife there is no indication, either in the opinion or accompanying order, that the husband's counterclaim was not granted on both of the grounds asserted. This may be a redundant reading, as either ground would have sufficed. But the opinion that preceded the order was full of talk of adultery and made no explicit reference to any other type of cruelty. In these circumstances, the decision of the Circuit Court may have been sufficiently ambiguous to have caused reasonably prudent newsmen to read it as granting divorce on the ground of adultery. As I join the opinion of the Court remanding this case, it is unnecessary to decide whether the foregoing establishes as a matter of law that Time exercised the requisite care under the circumstances. Nor have I undertaken to identify all of the evidence that may be relevant or to POWELL, J., concurring 424 U.S. point out conflicts that arguably have been resolved against Time by the jury. My point in writing is to emphasize that, against the background of a notorious divorce case, see Curtis Publishing Co., 388 U. S., at 158159, and a decree that invited misunderstanding, there was substantial evidence supportive of Time's defense that it was not guilty of actionable negligence. At the very least the jury or court assessing liability in this case should have weighed these factors and this evidence before reaching a judgment. There is no indication in the record before us that this was done in accordance with Gertz.10 In its first opinion remanding the case to the District Court of Appeal, after referring to the general prominence of the Firestones, the Supreme Court of Florida indicated that "their marital difficulties were equally well known; and the charges and countercharges of meretriciousness, flowing from both sides of the controversy, made their divorce action a veritable cause celebre in social circles across the country." 271 So. 2d 745, 751 (1972). The District Court of Appeal similarly observed that in part due to the sensational and colorful testimony the 17-month divorce trial had been the object of national news coverage. 254 So. 2d 386, 389 (1971). The reports Time received that the decree was granted on the ground of adultery therefore were consistent with the well-publicized trial revelations. "Indeed, I agree with the view expressed by MR. JUSTICE MARSHALL in his dissenting opinion: Unless there exists some basis for a finding of fault other than that given by the Supreme Court of Florida there can be no liability. 10 The Florida District Court of Appeal, on the second appeal to it, reversed a judgment for respondent. In doing so, it applied the New York Times "actual malice" standard, but added: "Nowhere was there proof Time was even negligent, much less intentionally false or in reckless disregard of the truth." 254 So. 2d, at 390. A problem infecting the various decisions in the Florida courts is the understandable uncertainty as to exactly what standard should be applied. This case was in litigation several years before Gertz was decided. 448 BRENNAN, J., dissenting MR. JUSTICE BRENNAN, dissenting. In my view, the question presented by this case is the degree of protection commanded by the First Amendment's free expression guarantee where it is sought to hold a publisher liable under state defamation laws for erroneously reporting the results of a public judicial proceeding. I In a series of cases beginning with New York Times Co. v. Sullivan, 376 U. S. 254 (1964), this Court has held that the laws of libel and defamation, no less than other legal modes of restraint on the freedoms of speech and press, are subject to constitutional scrutiny under the First Amendment. The Court has emphasized that the central meaning of the free expression guarantee is that the body politic of this Nation shall be entitled to the communications necessary for self-governance, and that to place restraints on the exercise of expression is to deny the instrumental means required in order that the citizenry exercise that ultimate sovereignty reposed in its collective judgment by the Constitution.1 Accordingly, we have held that laws governing harm incurred by individuals through defamation or invasion of privacy, although directed to the worthy objective of ensuring the "essential dignity and worth of every human being" necessary to a civilized society, Rosenblatt v. Baer, 383 U. S. 75, 92 (1966) (STEWART, J., concurring), must be measured and limited by constitutional con 1 See Kalven, The New York Times Case: A Note on "The Central Meaning of the First Amendment," 1964 Sup. Ct. Rev. 191; Meiklejohn, The First Amendment Is An Absolute, 1961 Sup. Ct. Rev. 245. See also Bloustein, The First Amendment and Privacy: The Supreme Court Justice and the Philosopher, 28 Rutgers L. Rev. 41 (1974); Meiklejohn, Public Speech in the Supreme Court Since New York Times v. Sullivan, 26 Syracuse L. Rev. 819 (1975). BRENNAN, J., dissenting 424 U.S. straints assuring the maintenance and well-being of the system of free expression. Although "calculated falsehood" is no part of the expression protected by the central meaning of the First Amendment, Garrison v. Louisiana, 379 U. S. 64, 75 (1964), error and misstatement is recognized as inevitable in any scheme of truly free expression and debate. New York Times, supra, at 271-272. Therefore, in order to avoid the self-censorship that would necessarily accompany strict or simple fault liability for erroneous statements, rules governing liability for injury to reputation are required to allow an adequate margin for error-protecting some misstatements so that the "freedoms of expression . . . have the 'breathing space' that they 'need . . . to survive.'" Ibid. "[T]o insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones." St. Amant v. Thompson, 390 U. S. 727, 732 (1968). For this reason, New York Times held that liability for defamation of a public official may not be imposed in the absence of proof of actual malice on the part of the person making the erroneous statement. 376 U. S., at 279-280.2 2 The protection of the actual-malice test extends to erroneous statements that in any way "might touch on . . . [the] fitness for office" of a public official, Garrison v. Louisiana, 379 U. S. 64, 77 (1964), or a candidate for public office, Monitor Patriot Co. v. Roy, 401 U. S. 265, 274 (1971). The actual-malice standard has been applied "at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs," Rosenblatt v. Baer, 383 U. S. 75, 85 (1966), and further to "public figures" who are "intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large." Curtis Publishing Co. v. Butts, 388 U. S. 130, 164 (1967) (Warren, C. J., concurring in result). As an erroneous judgment of liability is, in view of the First 448 BRENNAN, J., dissenting Identical considerations led the Court last Term in Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975), to hold that the First Amendment commands an absolute privilege to truthfully report the contents of public records reflecting the subject matter of judicial proceedings. Recognizing the possibility of injury to legitimate privacy interests of persons affected by such proceedings, the Court was nevertheless constrained in light of the strong First Amendment values involved to conclude that no liability whatever could be imposed by the State for reports damaging to those concerns. Following the reasoning of New York Times and its progeny, the Court in Cox Broadcasting noted: "[I]n a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations. Great responsibility is accordingly placed upon the news media to report fully and accurately the proceedings of government, and official records and documents open to the public are the basic data of governmental operations. Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of governAmendment values at stake, of more serious concern than an erroneous judgment in the opposite direction, Rosenbloom v. Metromedia, Inc., 403 U. S. 29, 50 (1971), the Court has held that actual malice must be demonstrated with "convincing clarity." New York Times, 376 U. S., at 285-286. The actual-malice standard requires a showing that the erroneous statements were made in knowing or reckless disregard of their falsity, id., at 280, and has been otherwise defined as requiring a showing that the statements were made by a person who in fact was entertaining "serious doubts" as to their truth. St. Amant v. Thompson, 390 U. S. 727, 731 (1968). |