In The

Supreme Court of the United States

et al.


HEPPS et al.

Decided April 21, 1986

Justice O’Connor, For the Court


Philadelphia Newspapers v. Hepps, 475 U.S. 767 (1986), is a United States Supreme Court case decided April 21, 1986.

Topic: First Amendment*Court vote: 5–4
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Joining O'Connor opinion: Justice BLACKMUN Justice BLACKMUN Justice BRENNAN Justice BRENNAN Justice MARSHALL Justice MARSHALL Justice POWELL Justice POWELL
Holding: Libel plaintiffs must shoulder the burden of proving falsity when the article in question relates to public concern.
Citation: 475 U.S. 767 Docket: 84–1491Audio: Listen to this case's oral arguments at Oyez

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JUSTICE O'CONNOR delivered the opinion of the Court.

This case requires us once more to

struggl[e]... to define the proper accommodation between the law of defamation and the freedoms of speech and press protected by the First Amendment.

Gertz v. Robert Welch, Inc., 418 U. S. 323, 418 U. S. 325 (1974). In Gertz, the Court held that a private figure who brings a suit for defamation cannot recover without some showing that the media defendant was at fault in publishing the statements at issue. Id. at 418 U. S. 347. Here, we hold that, at least where a newspaper publishes speech of public concern, a private-figure plaintiff cannot recover damages without also showing that the statements at issue are false.


Maurice S. Hepps is the principal stockholder of General Programming, Inc. (GPI), a corporation that franchises a chain of stores -known at the relevant time as "Thrifty" stores -selling beer, soft drinks, and snacks. Mr. Hepps, GPI, and a number of its franchisees are the appellees here. [ Footnote 1 ] Appellant Philadelphia Newspapers, Inc., owns the Philadelphia Inquirer (Inquirer). The Inquirer published a series of articles, authored by appellants William Ecenbarger and William Lambert, containing the statements at issue here. The general theme of the five articles, which appeared in the Inquirer between May, 1975, and May, 1976, was that appellees had links to organized crime and used some of those links to influence the State's governmental processes, both legislative and administrative. The articles discussed a state legislator, described as "a Pittsburgh Democrat and convicted felon,"App. A60, whose actions displayed "a clear pattern of interference in state government by [the legislator] on behalf of Hepps and Thrifty," id. at A62-A63. The stories reported that federal "investigators have found connections between Thrifty and underworld figures," id. at A65; that "the Thrifty Beverage beer chain... had connections... with organized crime," id. at A80; and that Thrifty had "won a series of competitive advantages through rulings by the State Liquor Control Board," id. at A65. A grand jury was said to be investigating the "alleged relationship between the Thrifty chain and known Mafia figures," and "[w]hether the chain received special treatment from the [state Governor's] administration and the Liquor Control Board." Id. at A68.

Appellees brought suit for defamation against appellants in a Pennsylvania state court. Consistent with Gertz, supra, Pennsylvania requires a private figure who brings a suit for defamation to bear the burden of proving negligence or malice by the defendant in publishing the statements at issue. 42 Pa.Cons.Stat. § 8344 (1982). As to falsity, Pennsylvania follows the common law's presumption that an individual's reputation is a good one. Statements defaming that person are therefore presumptively false, although a publisher who bears the burden of proving the truth of the statements has an absolute defense. See 506 Pa. 304, 313-314, 485 A.2d 374, 379 (1984). See also 42 Pa.Cons.Stat. § 8343(b)(1) (1982) (defendant has the burden of proving the truth of a defamatory statement). Cf. Gertz, supra, at 418 U. S. 349 (common law presumes injury to reputation from publication of defamatory statements). See generally Eaton, The American Law of Defamation Through Gertz v. Robert Welch, Inc., and Beyond: An Analytical Primer, 61 Va.L.Rev. 1349, 1352-1357 (1975) (describing common law scheme of defamation law).

The parties first raised the issue of burden of proof as to falsity before trial, but the trial court reserved its ruling on the matter. Appellee Hepps testified at length that the statements at issue were false, Tr. 2221-2290, and he extensively cross-examined the author of the stories as to the veracity of the statements at issue. After all the evidence had been presented by both sides, the trial court concluded that Pennsylvania's statute giving the defendant the burden of proving the truth of the statements violated the Federal Constitution. Id. at 3589. The trial court therefore instructed the jury that the plaintiffs bore the burden of proving falsity. Id. at 3848.

During the trial, appellants took advantage of Pennsylvania's "shield law" on a number of occasions. That law allows employees of the media to refuse to divulge their sources. See 42 Pa.Cons.Stat. § 5942(a) (1982) ("No person... employed by any newspaper of general circulation... or any radio or television station, or any magazine of general circulation,... shall be required to disclose the source of any information procured or obtained by such person, in any legal proceeding, trial or investigation before any government unit"). See also 506 Pa. at 327, 485 A.2d at 387 ("This statute has been interpreted broadly"). Appellees requested an instruction stating that the jury could draw a negative inference from appellants' assertions of the shield law; appellants requested an instruction that the jury could not draw any inferences from those exercises of the shield law's privilege. The trial judge declined to give either instruction. Tr. 3806-3808. The jury ruled for appellants and therefore awarded no damages to appellees.

Pursuant to Pennsylvania statute, 42 Pa.Cons.Stat. § 722(7) (1982), the appellees here brought an appeal directly to the Pennsylvania Supreme Court. That court viewed Gertz as simply requiring the plaintiff to show fault in actions for defamation. It concluded that a showing of fault did not require a showing of falsity, held that to place the burden of showing truth on the defendant did not unconstitutionally inhibit free debate, and remanded the case for a new trial. [ Footnote 2 ] 506 Pa. at 318-329, 485 A.2d at 382-387. We noted probable jurisdiction, 472 U.S. 1025 (1985), and now reverse.


In New York Times Co. v. Sullivan, 376 U. S. 254 (1964), the Court

determin[ed] 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.

Id. at 376 U. S. 256. The State's trial court in that case believed the statements tended to injure the plaintiff's reputation or bring him into public contempt, id. at 376 U. S. 267, and were therefore libelous per se, id. at 376 U. S. 262. The trial court therefore instructed the jury that it could presume falsity, malice, and some damage to reputation, as long as it found that the defendant had published the statements and that the statements concerned the plaintiff. Ibid. The trial court also instructed the jury that an award of punitive damages required "malice" or "actual malice." Id. at 376 U. S. 262, 376 U. S. 267. The jury found for the plaintiff and made an award of damages that did not distinguish between compensatory and punitive damages. Id. at 376 U. S. 262. The Alabama Supreme Court upheld the judgment of the trial court in all respects. Id. at 376 U. S. 263.

This Court reversed, holding that "libel can claim no talismanic immunity from constitutional limitations." Id. at 376 U. S. 269. 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,

the Court noted that

[a]uthoritative 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.

Id. at 376 U. S. 270 -271. Freedoms of expression require " breathing space,'" id. at 376 U. S. 272 (quoting NAACP v. Button, 371 U. S. 415, 371 U. S. 433 (1963)):

A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions -and to do so on pain of libel judgments virtually unlimited in amount -leads to... 'self-censorship.'... Under such a rule, would-be critics 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.

376 U.S. at 376 U. S. 279.

The Court therefore held that the Constitution

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 'actual malice' -that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

Id. at 376 U. S. 279 -280. That showing must be made with "convincing clarity," id. at 376 U. S. 285 -286, or, in a later formulation, by "clear and convincing proof," Gertz, 418 U.S. at 418 U. S. 342. The standards of New York Times apply not only when a public official sues a newspaper, but also when a "public figure" sues a magazine or news service. See Curtis Publishing Co. v. Butts, 388 U. S. 130, 388 U. S. 162 -165 (1967) (Warren, C.J., concurring in result); id. at 388 U. S. 170 (opinion of Black, J.); id. at 388 U. S. 172 (opinion of BRENNAN, J.). See also Wolston v. Reader's Digest Assn., Inc., 443 U. S. 157, 443 U. S. 163 -169 (1979).

A decade after New York Times, the Court examined the constitutional limits on defamation suits by private-figure plaintiffs against media defendants. Gertz, supra. The Court concluded that the danger of self-censorship was a valid, but not the exclusive, concern in suits for defamation:

The need to avoid self-censorship by the news media is.... not the only societal value at issue... [or] this Court would have embraced long ago the view that publishers and broadcasters enjoy an unconditional and indefeasible immunity from liability for defamation.

Gertz, supra, at 418 U. S. 341. See also Rosenblatt v. Baer, 383 U. S. 75, 383 U. S. 92 (1966) (Stewart, J., concurring). Any analysis must also take into account the

legitimate state interest underlying the law of libel [in] the compensation of individuals for the harm inflicted on them by defamatory falsehood.

Gertz, supra, at 418 U. S. 341. See also Time, Inc. v. Firestone, 424 U. S. 448, 424 U. S. 456 (1976) (discussing the "appropriate accommodation between the public's interest in an uninhibited press and its equally compelling need for judicial redress of libelous utterances"). In light of that interest, and in light of the fact that private figures have lesser access to media channels useful for counteracting false statements, and have not voluntarily placed themselves in the public eye, Gertz, supra, at 418 U. S. 344 -345, the Court held that the Constitution

allows the States to impose liability on the publisher or broadcaster of defamatory falsehood on a less demanding showing than that required by New York Times,

418 U.S. at 418 U. S. 348 :

[S]o long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.

Id. at 418 U. S. 347. Nonetheless, even when private figures are involved, the constitutional requirement of fault supersedes the common law's presumptions as to fault and damages. In addition, the Court in Gertz expressly held that, although a showing of simple fault sufficed to allow recovery for actual damages, even a private-figure plaintiff was required to show actual malice in order to recover presumed or punitive damages. Id. at 418 U. S. 348 -350.

The Court most recently considered the constitutional limits on suits for defamation in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749 (1985). In sharp contrast to New York Times, Dun & Bradstreet involved not only a private-figure plaintiff but also speech of purely private concern. 472 U.S. at 472 U. S. 751 -752. A plurality of the Court in Dun & Bradstreet was convinced that, in a case with such a configuration of speech and plaintiff, the showing of actual malice needed to recover punitive damages under either New York Times or Gertz was unnecessary:

In light of the reduced constitutional value of speech involving no matters of public concern, we hold that the state interest [in preserving private reputation] adequately supports awards of presumed and punitive damages -even absent a showing of 'actual malice.'

472 U.S. at 472 U. S. 761 (opinion of POWELL, J.) (footnote omitted). See also id. at 472 U. S. 764 (BURGER, C.J., concurring in judgment); id. at 472 U. S. 774 (WHITE, J., concurring in judgment).

One can discern in these decisions two forces that may reshape the common law landscape to conform to the First Amendment. The first is whether the plaintiff is a public official or figure, or is instead a private figure. The second is whether the speech at issue is of public concern. When the speech is of public concern and the plaintiff is a public official or public figure, the Constitution clearly requires the plaintiff to surmount a much higher barrier before recovering damages from a media defendant than is raised by the common law. When the speech is of public concern but the plaintiff is a private figure, as in Gertz, the Constitution still supplants the standards of the common law, but the constitutional requirements are, in at least some of their range, less forbidding than when the plaintiff is a public figure and the speech is of public concern. When the speech is of exclusively private concern and the plaintiff is a private figure, as in Dun & Bradstreet, the constitutional requirements do not necessarily force any change in at least some of the features of the common law landscape.

Our opinions to date have chiefly treated the necessary showings of fault, rather than of falsity. Nonetheless, as one might expect given the language of the Court in New York Times, see supra, at 475 U. S. 772 -773, a public-figure plaintiff must show the falsity of the statements at issue in order to prevail in a suit for defamation. See Garrison v. Louisiana, 379 U. S. 64, 379 U. S. 74 (1964) (reading New York Times for the proposition that "a public official [is] allowed the civil [defamation] remedy only if he establishes that the utterance was false"). See also Herbert v. Lando, 441 U. S. 153, 441 U. S. 176 (1979) ("[T]he plaintiff must focus on the editorial process and prove a false publication attended by some degree of culpability").

Here, as in Gertz, the plaintiff is a private figure and the newspaper articles are of public concern. In Gertz, as in New York Times, the common law rule was superseded by a constitutional rule. We believe that the common law's rule on falsity -that the defendant must bear the burden of proving truth -must similarly fall here to a constitutional requirement that the plaintiff bear the burden of showing falsity, as well as fault, before recovering damages.

There will always be instances when the factfinding process will be unable to resolve conclusively whether the speech is true or false; it is in those cases that the burden of proof is dispositive. Under a rule forcing the plaintiff to bear the burden of showing falsity, there will be some cases in which plaintiffs cannot meet their burden despite the fact that the speech is, in fact, false. The plaintiff's suit will fail despite the fact that, in some abstract sense, the suit is meritorious. Similarly, under an alternative rule placing the burden of showing truth on defendants, there would be some cases in which defendants could not bear their burden despite the fact that the speech is in fact true. Those suits would succeed despite the fact that, in some abstract sense, those suits are unmeritorious. Under either rule, then, the outcome of the suit will sometimes be at variance with the outcome that we would desire if all speech were either demonstrably true or demonstrably false.

This dilemma stems from the fact that the allocation of the burden of proof will determine liability for some speech that is true and some that is false, but all of such speech is unknowably true or false. Because the burden of proof is the deciding factor only when the evidence is ambiguous, we cannot know how much of the speech affected by the allocation of the burden of proof is true and how much is false. In a case presenting a configuration of speech and plaintiff like the one we face here, and where the scales are in such an uncertain balance, we believe that the Constitution requires us to tip them in favor of protecting true speech. To ensure that true speech on matters of public concern is not deterred, we hold that the common law presumption that defamatory speech is false cannot stand when a plaintiff seeks damages against a media defendant for speech of public concern.

In the context of governmental restriction of speech, it has long been established that the government cannot limit speech protected by the First Amendment without bearing the burden of showing that its restriction is justified. See Consolidated Edison Co. v. Public Service Comm'n of N.Y., 447 U. S. 530, 447 U. S. 540 (1980) (content-based restriction); First National Bank of Boston v. Bellotti, 435 U. S. 765, 435 U. S. 786 (1978) (speaker-based restriction); Renton v. Playtime Theatres, Inc., ante at 475 U. S. 47 -54 (secondary-effects restriction). See also Speiser v. Randall, 357 U. S. 513 (1958) (striking down the precondition that a taxpayer sign a loyalty oath before receiving certain tax benefits). It is not immediately apparent from the text of the First Amendment, which by its terms applies only to governmental action, that a similar result should obtain here: a suit by a private party is obviously quite different from the government's direct enforcement of its own laws. Nonetheless, the need to encourage debate on public issues that concerned the Court in the governmental restriction cases is of concern in a similar manner in this case involving a private suit for damages: placement by state law of the burden of proving truth upon media defendants who publish speech of public concern deters such speech because of the fear that liability will unjustifiably result. See New York Times, 376 U.S. at 376 U. S. 279 ; Garrison, supra, at 379 U. S. 74 ("Truth may not be the subject of either civil or criminal sanctions where discussion of public affairs is concerned"). Because such a "chilling" effect would be antithetical to the First Amendment's protection of true speech on matters of public concern, we believe that 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. To do otherwise could "only result in a deterrence of speech which the Constitution makes free." Speiser, supra, at 357 U. S. 526.

We recognize that requiring the plaintiff to show falsity will insulate from liability some speech that is false, but unprovably so. Nonetheless, the Court's previous decisions on the restrictions that the First Amendment places upon the common law of defamation firmly support our conclusion here with respect to the allocation of the burden of proof. In attempting to resolve related issues in the defamation context, the Court has affirmed that "[t]he First Amendment requires that we protect some falsehood in order to protect speech that matters." Gertz, 418 U.S. at 418 U. S. 341. Here the speech concerns the legitimacy of the political process, and therefore clearly "matters." See Dun & Bradstreet, 472 U.S. at 472 U. S. 758 -759 (speech of public concern is at the core of the First Amendment's protections). To provide " breathing space,'" New York Times, supra, at 376 U. S. 272 (quoting NAACP v. Button, 371 U.S. at 371 U. S. 433 ), for true speech on matters of public concern, the Court has been willing to insulate even demonstrably false speech from liability, and has imposed additional requirements of fault upon the plaintiff in a suit for defamation. See, e.g., Garrison, 379 U.S. at 379 U. S. 75 ; Gertz, supra, at 418 U. S. 347. We therefore do not break new ground here in insulating speech that is not even demonstrably false.

We note that our decision adds only marginally to the burdens that the plaintiff must already bear as a result of our earlier decisions in the law of defamation. The plaintiff must show fault. A jury is obviously more likely to accept a plaintiff's contention that the defendant was at fault in publishing the statements at issue if convinced that the relevant statements were false. As a practical matter, then, evidence offered by plaintiffs on the publisher's fault in adequately investigating the truth of the published statements will generally encompass evidence of the falsity of the matters asserted. See Keeton, Defamation and Freedom of the Press, 54 Texas L.Rev. 1221, 1236 (1976). See also Franklin & Bussel, The Plaintiff's Burden in Defamation: Awareness and Falsity, 25 Wm. & Mary L.Rev. 825, 856-857 (1984).

We recognize that the plaintiff's burden in this case is weightier because of Pennsylvania's "shield" law, which allows employees of the media to refuse to divulge their sources. See supra at 475 U. S. 770 -771. [ Footnote 3 ] But we do not have before us the question of the permissible reach of such laws. Indeed, we do not even know the precise reach of Pennsylvania's statute. The trial judge refused to give any instructions to the jury as to whether it could, or should, draw an inference adverse to the defendant from the defendant's decision to use the shield law rather than to present affirmative evidence of the truthfulness of some of the sources. See supra at 475 U. S. 771. That decision of the trial judge was not addressed by Pennsylvania's highest court, nor was it appealed to this Court. [ Footnote 4 ] In the situation before us, we are unconvinced that the State's shield law requires a different constitutional standard than would prevail in the absence of such a law.

For the reasons stated above, the judgment of the Pennsylvania Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.


[ Footnote 1 ]

Appellants list nine entities as appellees in the proceedings in this Court: Maurice S. Hepps; General Programming, Inc.; A. David Fried, Inc.; Brookhaven Beverage Distributors, Inc.; Busy Bee Beverage Co.; ALMIK, Inc.; Lackawanna Beverage Distributors; N.F.O., Inc.; and Elemar, Inc. Brief for Appellants ii.

[ Footnote 2 ]

The state courts that have considered this issue since Gertz have reached differing conclusions. Compare, e.g., Denny v. Mertz, 106 Wis.2d 636, 654-658, 318 N.W.2d 141, 150-151 (defendant must bear burden of showing truth), cert. denied, 459 U.S. 883 (1982), and Memphis Publishing Co. v. Nichols, 569 S.W.2d 412 (Tenn.1978) (same), with Gazette, Inc. v. Harris, 229 Va. 1, 15-16, 325 S.E.2d 713, 725 (plaintiff must bear burden of showing falsity), cert. denied, 473 U.S. 905 (1985), and Madison v. Yunker, 180 Mont. 54, 67, 589 P.2d 126, 133 (1978) (same).

[ Footnote 3 ]

Pennsylvania is not alone in this choice. See, e.g., Ala.Code § 12-21-142 (1977); Cal.Const., Art. I, § 2(b); N.Y.Civ.Rights Law § 79-h (McKinney 1976).

[ Footnote 4 ]

We also have no occasion to consider the quantity of proof of falsity that a private-figure plaintiff must present to recover damages. Nor need we consider what standards would apply if the plaintiff sues a nonmedia defendant, see Hutchinson v. Proxmire, 443 U. S. 111, 443 U. S. 133, n. 16 (1979), or if a State were to provide a plaintiff with the opportunity to obtain a judgment that declared the speech at issue to be false, but did not give rise to liability for damages.

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