1.

Syllabus

Respondent, an elected official in Montgomery, Alabama, brought suit in a state

court alleging that he had been libeled by an advertisement in corporate
petitioner's newspaper, the text of which appeared over the names of the four
individual petitioners and many others. The advertisement included statements,
some of which were false, about police action allegedly directed against students
who participated in a civil rights demonstration and against a leader of the civil
rights movement; respondent claimed the statements referred to him because his
duties included supervision of the police department. The trial judge instructed the
jury that such statements were "libelous per se," legal injury being implied without
proof of actual damages, and that, for the purpose of compensatory damages,
malice was presumed, so that such damages could be awarded against petitioners if
the statements were found to have been published by them and to have related to
respondent. As to punitive damages, the judge instructed that mere negligence was
not evidence of actual malice, and would not justify an award of punitive damages;
he refused to instruct that actual intent to harm or recklessness had to be found
before punitive damages could be awarded, or that a verdict for respondent should
differentiate between compensatory and punitive damages. The jury found for
respondent, and the State Supreme Court affirmed.

Held: A State cannot, under the First and Fourteenth Amendments, award damages
to a public official for defamatory falsehood relating to his official conduct unless he
proves "actual malice" -- that the statement was made with knowledge of its falsity
or with reckless disregard of whether it was true or false. Pp. 265-292.

(a) Application by state courts of a rule of law, whether statutory or not, to award a
judgment in a civil action, is "state action" under the Fourteenth Amendment. P.
265.

(b) Expression does not lose constitutional protection to which it would otherwise be
entitled because it appears in the form of a paid advertisement. Pp. 265-266. [p255]

(c) Factual error, content defamatory of official reputation, or both, are insufficient
to warrant an award of damages for false statements unless "actual malice" --
knowledge that statements are false or in reckless disregard of the truth -- is
alleged and proved. Pp. 279-283.
(d) State court judgment entered upon a general verdict which does not
differentiate between punitive damages, as to which, under state law, actual malice
must be proved, and general damages, as to which it is "presumed," precludes any
determination as to the basis of the verdict, and requires reversal, where
presumption of malice is inconsistent with federal constitutional requirements. P.
284.

(e) The evidence was constitutionally insufficient to support the judgment for
respondent, since it failed to support a finding that the statements were made with
actual malice or that they related to respondent. Pp. 285-292.

[p256]

TOP

Opinion

BRENNAN, J., Opinion of the Court

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, a New York corporation which publishes the New York Times, a daily
newspaper. A jury 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. 273 Ala. 656, 144 So.2d 25.

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. [n1]
Entitled "Heed Their Rising Voices," the advertisement began by stating that,

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.

It went on to charge that,

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. . . .

Succeeding [p257] 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, "the struggle for the right to
vote," 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 "We in the south who are struggling daily for
dignity and freedom warmly endorse this appeal," 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 10 paragraphs of text in the advertisement, the third and a portion of the
sixth were the basis of respondent's claim of libel. They read as follows:

Third paragraph:

In Montgomery, Alabama, after students sang "My Country, 'Tis of Thee" on the
State Capitol 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
reregister, their dining hall was padlocked in an attempt to starve them into
submission.

Sixth paragraph:

Again and again, the Southern violators have answered Dr. King's peaceful protests
with intimidation and violence. They have bombed his home, almost killing his wife
and child. They have [p258] 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. . . .

Although neither of these statements mentions respondent by name, he contended

that the word "police" in the third paragraph referred to him as the Montgomery
Commissioner who supervised the Police Department, so that he was being accused
of "ringing" 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. [n2] As to the sixth paragraph, he
contended that, since arrests are ordinarily made by the police, the statement
"They have arrested [Dr. King] seven times" 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 protests with "intimidation and violence,"
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 not "My [p259] 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 padlocked on any occasion, and
the only students who may have been barred from eating there were the few who
had neither signed a preregistration 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 "ring" 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 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. [p260]

Respondent made no effort to prove that he suffered actual pecuniary loss as a

result of the alleged libel. [n3] One of his witnesses, a former employer, testified
that, if he had believed the statements, he doubted whether he "would want to be
associated with anybody who would be a party to such things that are stated in that
ad," and that he would not reemploy respondent if he believed "that he allowed the
Police Department to do the things that the paper say he did." 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 $4800, 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'
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, "We in
the south . . . warmly endorse this appeal," and the list of names thereunder, 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 a retraction. The manager of the
Advertising Acceptability [p261] 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 "a number of
people who are well known and whose reputation" he "had no reason to question."
Neither he nor anyone else at the 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. Alabama Code, Tit. 7, 914. 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 "we . . . are somewhat puzzled as to how you think the statements in any way
reflect on you," and "you might, if you desire, let us know in what respect you claim
that the statements in the advertisement reflect on you." 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
grave misconduct and . . . improper actions and omissions as Governor of Alabama
and Ex-Officio Chairman of the State Board of Education of Alabama.

When asked to explain why there had been a retraction for the Governor but not for
respondent, the [p262] Secretary of the Times testified:

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
and purported to recite and, finally, the ad did refer to the action of the State
authorities and the Board of Education, presumably of which the Governor is the ex-
officio chairman. . . .

On the other hand, he testified that he did not think that "any of the language in
there referred to Mr. Sullivan."

The trial judge submitted the case to the jury under instructions that the statements
in the advertisement were "libelous per se," 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 "of and concerning" respondent.
The jury was instructed that, because the statements were libelous per se, "the
law . . . implies legal injury from the bare fact of publication itself," "falsity and
malice are presumed," "general damages need not be alleged or proved, but are
presumed," and "punitive damages may be awarded by the jury even though the
amount of actual damages is neither found nor shown." An award of punitive
damages -- as distinguished from "general" damages, which are compensatory in
nature -- apparently requires proof of actual malice under Alabama law, and the
judge charged that

mere negligence or carelessness is not evidence of actual malice or malice in fact,

and does not justify an award of exemplary or punitive damages.

He refused to charge, however, that the jury must be "convinced" of malice, in the
sense of "actual intent" to harm or "gross negligence and recklessness," to make
such an award, and he also refused to require that a verdict for respondent
differentiate between compensatory and punitive damages. The judge rejected
petitioners' contention [p263] that his rulings abridged the freedoms 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. 273 Ala. 656, 144 So.2d 25. It held that,

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"; that "the matter complained of is, under the above
doctrine, libelous per se, if it was published of and concerning the plaintiff", and that
it was actionable without "proof of pecuniary injury . . . . such injury being implied."
Id. at 673, 676, 144 So.2d at 37, 41. It approved the trial court's ruling that the jury
could find the statements to have been made "of and concerning" respondent,
stating:

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.

Id. at 674-675, 144 So.2d at 39. In sustaining the trial court's determination that the
verdict was not excessive, the court said that malice could be inferred from the
Times' "irresponsibility" in printing the advertisement while

the Times, in its own files, had articles already published which would have
demonstrated the falsity of the allegations in the advertisement;

from the Times' failure to retract for respondent while retracting for the Governor,
whereas the falsity of some of the allegations was then known to the Times and "the
matter contained in the advertisement was equally false as to both parties", and
from the testimony of the Times' Secretary that, [p264] apart from the statement
that the dining hall was padlocked, he thought the two paragraphs were
"substantially correct." Id. at 686-687, 144 So.2d at 50-51. The court reaffirmed a
statement in an earlier opinion that "There is no legal measure of damages in cases
of this character." Id. at 686, 144 So.2d at 50. It rejected petitioners' constitutional
contentions with the brief statements that "The First Amendment of the U.S.
Constitution does not protect libelous publications," and "The Fourteenth
Amendment is directed against State action, and not private action." Id. at 676, 144
So.2d at 40.

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 reverse 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 public official against critics of his official
conduct. [n4] We [p265] further hold that, under the proper safeguards, the
evidence presented in this case is constitutionally insufficient to support the
judgment for respondent.

I.

We may dispose at the outset of two grounds asserted to insulate the judgment of
the Alabama courts from constitutional scrutiny. The first is the proposition relied on
by the State Supreme Court -- that "The Fourteenth Amendment is directed against
State action, and not private action." 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. See, e.g., Alabama Code, Tit. 7, 908-917. 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. See Ex parte Virginia, 100 U.S.
339, 346-347; American Federation of Labor v. Swing. 312 U.S. 321.

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,
"commercial" advertisement. The argument relies on Valentine v. Chrestensen, 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 handbill 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 Chrestensen reaffirmed the constitutional protection for
"the freedom of communicating [p266] information and disseminating opinion"; its
holding was based upon the factual conclusions that the handbill was "purely
commercial advertising" and that the protest against official action had been added
only to evade the ordinance.

The publication here was not a "commercial" advertisement in the sense in which
the word was used in Chrestensen. 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. See NAACP v. Button, 371 U.S. 415, 435. That the Times
was paid for publishing the advertisement is as immaterial in this connection as is
the fact that newspapers and books are sold. Smith v. California, 361 U.S. 147, 150;
cf. Bantam Books, Inc., v. Sullivan, 372 U.S. 58, 64, n. 6. Any other conclusion would
discourage newspapers from carrying "editorial advertisements" 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.
Cf. Lovell v. Griffin, 303 U.S. 444, 452; Schneider v. State, 308 U.S. 147, 164. The
effect would be to shackle the First Amendment in its attempt to secure "the widest
possible dissemination of information from diverse and antagonistic sources."
Associated Press v. United States, 326 U.S. 1, 20. 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. [n5] [p267]

II

Under Alabama law, as applied in this case, a publication is "libelous per se" if the
words "tend to injure a person . . . in his reputation" or to "bring [him] into public
contempt"; the trial court stated that the standard was met if the words are such as
to "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. . . ." The jury must find that
the words were published "of and concerning" 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. Alabama Ride Co. v. Vance, 235 Ala. 263,
178 So. 438 (1938); Johnson Publishing Co. v. Davis, 271 Ala. 474, 494 495, 124
So.2d 441, 457-458 (1960). His privilege of "fair comment" for expressions of
opinion depends on the truth of the facts upon which the comment is based.
Parsons v. Age-Herald Publishing Co., 181 Ala. 439, 450, 61 So. 345, 350 (1913).
Unless he can discharge the burden of proving truth, general damages are
presumed, and may be awarded without proof of pecuniary injury. A 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. Johnson Publishing Co. v. Davis, supra, 271 Ala., at 495, 124
So.2d at 458. [p268]

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
Amendments.

Respondent relies heavily, as did the Alabama courts, on statements of this Court to
the effect that the Constitution does not protect libelous publications. [n6] 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 Pennekamp v. Florida, 328 U.S. 331, 348-349, that
"when the statements amount to defamation, a judge has such remedy in damages
for libel as do other public servants," implied no view as to what remedy might
constitutionally be afforded to public officials. In Beauharnais v. Illinois, 343 U.S.
250, the Court sustained an Illinois criminal libel statute as applied to a publication
held to be both defamatory of a racial group and "liable to cause violence and
disorder." But the Court was careful to note that it "retains and exercises authority
to nullify action which encroaches on freedom of utterance under the guise of
punishing libel"; for "public men are, as it were, public property," and "discussion
cannot be denied, and the right, as well as the duty, of criticism must not be
stifled." Id. at 263-264, and n. 18. 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.
Schenectady Union Pub. Co. v. Sweeney, 316 U.S. 642. [p269] In deciding the
question now, we are compelled by neither precedent nor policy to give any more
weight to the epithet "libel" than we have to other "mere labels" of state law. NAACP
v. Button, 371 U.S. 415, 429. Like insurrection, [n7] contempt, [n8] advocacy of
unlawful acts, [n9] breach of the peace, [n10] obscenity, [n11] solicitation of legal
business, [n12] and the various other formulae for the repression of expression that
have been challenged in this 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, "was fashioned to assure unfettered interchange of ideas
for the bringing about of political and social changes desired by the people." Roth v.
United States, 354 U.S. 476, 484.

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, an opportunity essential to the security of the Republic,
is a fundamental principle of our constitutional system.

Stromberg v. California, 283 U.S. 359, 369. "[I]t is a prized American privilege to
speak one's mind, although not always with perfect good taste, on all public
institutions," Bridges v. California, 314 U.S. 252, 270, and this opportunity is to be
afforded for "vigorous advocacy" no less than "abstract discussion." NAACP v.
Button, 371 U.S. 415, 429. [p270] The First Amendment, said Judge Learned 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.

United States v. Associated Press, 52 F.Supp. 362, 372 (D.C.S.D.N.Y.1943). Mr. Justice
Brandeis, in his concurring opinion in Whitney v. California, 274 U.S. 357, 375-376,
gave the principle its classic formulation:

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 coerced 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.

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. See
Terminiello v. Chicago, 337 U.S. 1, 4; De Jonge v. Oregon, 299 U.S. 353, [p271] 365.
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. Cf. Speiser v. Randall, 357 U.S. 513, 525-526. The
constitutional protection does not turn upon "the truth, popularity, or social utility of
the ideas and beliefs which are offered." NAACP v. Button, 371 U.S. 415, 445. As
Madison said, "Some degree of abuse is inseparable from the proper use of every
thing, and in no instance is this more true than in that of the press." 4 Elliot's
Debates on the Federal Constitution (1876), p. 571. In Cantwell v. Connecticut, 310
U.S. 296, 310, the Court declared:

In the realm of religious faith, and in that of political belief, sharp differences arise.
In both fields, the tenets of one man may seem the rankest error 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 freedoms of expression [p272] are to have the "breathing space" that they
"need . . . to survive," NAACP v. Button, 371 U.S. 415, 433, was also recognized by
the Court of Appeals for the District of Columbia Circuit in Sweeney v. Patterson, 76
U.S.App.D.C. 23, 24, 128 F.2d 457, 458 (1942), cert. denied, 317 U.S. 678. 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:

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. Errors of fact,
particularly in regard to a man's mental states and processes, are inevitable. . . .
Whatever is added to the field of libel is taken from the field of free debate. [n13]

Injury to official reputation affords no more warrant for repressing speech that would
otherwise be free than does factual error. Where judicial officers are involved, this
Court has held that concern for the dignity and [p273] reputation of the courts does
not justify the punishment as criminal contempt of criticism of the judge or his
decision. Bridges v. California, 314 U.S. 252. This is true even though the utterance
contains "half-truths" and "misinformation." Pennekamp v. Florida, 328 U.S. 331,
342, 343, n. 5, 345. Such repression can be justified, if at all, only by a clear and
present danger of the obstruction of justice. See also Craig v. Harney, 331 U.S. 367;
Wood v. Georgia, 370 U.S. 375. If judges are to be treated as "men of fortitude, able
to thrive in a hardy climate," Craig v. Harney, supra, 331 U.S. at 376, surely the
same must be true of other government officials, such as elected city
commissioners. [n14] 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 error nor defamatory content suffices to remove the constitutional
shield from criticism 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, 1 Stat. 596, which first crystallized a national awareness of the
central meaning of the First Amendment. See Levy, Legacy of Suppression (1960),
at 258 et seq.; Smith, Freedom's Fetters (1956), at 426, 431, and passim. That
statute made it a crime, punishable by a $5,000 fine and five years in prison,

if any person shall write, print, utter or publish . . . any false, scandalous and
malicious [p274] 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 or any of them, the hatred of the good people of the United States.

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

doth 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. . . . [The Sedition Act] exercises . . . a power not delegated by
the Constitution, but, on the contrary, expressly and positively forbidden by one of
the amendments thereto -- 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 of free communication among the people thereon,
which has ever been justly deemed the only effectual guardian of every other right.

4 Elliot's Debates, supra, pp. 553-554. Madison prepared the Report in support of
the protest. His premise was that the Constitution created a form of government
under which "The people, not the government, possess the absolute sovereignty."
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 "altogether different" from the British form, under which the Crown
was sovereign and the people were subjects. "Is [p275] it not natural and
necessary, under such different circumstances," he asked, "that a different degree
of freedom in the use of the press should be contemplated?" Id., pp. 569-570.
Earlier, in a debate in the House of Representatives, Madison had said:
If we advert to the nature of Republican Government, we shall find that the
censorial power is in the people over the Government, and not in the Government
over the people.

4 Annals of Congress, p. 934 (1794). Of the exercise of that power by the press, his
Report said:

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. . . .

4 Elliot's Debates, supra, p. 570. 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. [n15] [p276]

Although the Sedition Act was never tested in this Court, [n16] 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. See, e.g.,
Act of July 4, 1840, c. 45, 6 Stat. 802, accompanied by H.R.Rep. No. 86, 26th Cong.,
1st Sess. (1840). Calhoun, reporting to the Senate on February 4, 1836, assumed
that its invalidity was a matter "which no one now doubts." Report with Senate bill
No. 122, 24th Cong., 1st Sess., p. 3. Jefferson, as President, pardoned those who
had been convicted and sentenced under the Act and remitted their fines, stating:

I discharged every person under punishment or prosecution under the sedition law
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.

Letter to Mrs. Adams, July 22, 1804, 4 Jefferson's Works (Washington ed.), pp. 555,
556. The invalidity of the Act has also been assumed by Justices of this Court. See
Holmes, J., dissenting and joined by Brandeis, J., in Abrams v. United States, 250
U.S. 616, 630; Jackson, J., dissenting in Beauharnais v. Illinois, 343 U.S. 250, 288-
289; Douglas, The Right of the People (1958), p. 47. See also Cooley, Constitutional
Limitations (8th ed., Carrington, 1927), pp. 899-900; Chafee, Free Speech in the
United States (1942), pp. 27-28. 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 respondent's argument that the constitutional limitations

implicit in the history of the Sedition Act apply only to Congress, and not to the
States. It is true that the First Amendment was originally addressed only to action
by the Federal Government, and [p277] that Jefferson, for one, while denying the
power of Congress "to controul the freedom of the press," recognized such a power
in the States. See the 1804 Letter to Abigail Adams quoted in Dennis v. United
States, 341 U.S. 494, 522, n. 4 (concurring opinion). But this distinction was
eliminated with the adoption of the Fourteenth Amendment and the application to
the States of the First Amendment's restrictions. See, e.g., Gitlow v. New York, 268
U.S. 652, 666; Schneider v. State, 308 U.S. 147, 160; Bridges v. California, 314 U.S.
252, 268; Edwards v. South Carolina, 372 U.S. 229, 235.

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. [n17] 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. See City of
Chicago v. Tribune Co., 307 Ill. 595, 607, 139 N.E. 86, 90 (1923). Alabama, for
example, has a criminal libel law which subjects to prosecution "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
indictable offense involving moral turpitude," and which allows as punishment upon
conviction a fine not exceeding $500 and a prison sentence of six months. Alabama
Code, Tit. 14, 350. 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
for any proof of actual pecuniary loss -- was one thousand times greater than the
maximum fine provided by the Alabama criminal statute, and one hundred times
greater than that provided by the Sedition Act. [p278] 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. [n18] 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
a form of regulation that creates hazards to protected freedoms markedly greater
than those that attend reliance upon the criminal law.

Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70.

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, 361 U.S. 147,
we held indispensable to a valid conviction of a bookseller for possessing obscene
writings for sale. We said:

For, if the bookseller is criminally liable 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. . . . [H]is 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 [p279] 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.

( 361 U.S. 147, 153-154.) 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 a comparable "self-censorship." 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. [n19] Even courts accepting this
defense as an adequate safeguard have recognized the difficulties of adducing legal
proofs that the alleged libel was true in all its factual particulars. See, e.g., Post
Publishing Co. v. Hallam, 59 F. 530, 540 (C.A. 6th Cir. 1893); see also Noel,
Defamation of Public Officers and Candidates, 49 Col.L.Rev. 875, 892 (1949). 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. They tend to make only statements which "steer far wider of the unlawful
zone." Speiser v. Randall, supra, 357 U.S. at 526. 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 [p280] with "actual malice" -- 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, [n20] is found in the
Kansas case of Coleman v. MacLennan, 78 Kan. 711, 98 P. 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

where an article is published and circulated among voters for the sole purpose of
giving what the defendant [p281] 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, and the whole 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.

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. On appeal, the
Supreme Court of Kansas, in an opinion by Justice Burch, reasoned as follows (78
Kan., at 724, 98 P. at 286):

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
character so small, that such discussion must be privileged.
The court thus sustained the trial court's instruction as a correct statement of the
law, saying:

In such a case the occasion gives rise to a privilege, qualified to this extent: any one
claiming to be defamed by the communication must show actual malice or go
remediless. This privilege extends to a great variety of subjects, and includes
matters of [p282] public concern, public men, and candidates for office.

78 Kan. at 723, 98 P. at 285.

Such a privilege for criticism of official conduct [n21] is appropriately analogous to

the protection accorded a public official when he is sued for libel by a private
citizen. In Barr v. Matteo, 360 U.S. 564, 575, this Court held the utterance of a
federal official to be absolutely privileged if made "within the outer perimeter" 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.
[n22] 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 "inhibit the fearless, vigorous, and effective administration of
policies of government" and "dampen the ardor of all but the most resolute, or the
most irresponsible, in the unflinching discharge of their duties." Barr v. Matteo,
supra, 360 U.S. at 571. 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. See Whitney v. California, 274 U.S. 357, 375 (concurring opinion
of Mr. Justice Brandeis), quoted supra, p. 270. As Madison said, see supra p. 275,
"the censorial power is in the people over the Government, and not in the
Government over the people." It would give public servants an unjustified
preference over the public they serve, if critics of official conduct [p283] 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.

III
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, [n23] the rule requiring proof of actual malice is
applicable. While Alabama law apparently requires proof of actual malice for an
award of punitive damages, [n24] where general damages are concerned malice is
"presumed." Such a presumption is inconsistent [p284] with the federal rule. "The
power to create presumptions is not a means of escape from constitutional
restrictions," Bailey v. Alabama, 219 U.S. 219, 239, "the showing of malice required
for the forfeiture of the privilege is not presumed but is a matter for proof by the
plaintiff. . . ." Lawrence v. Fox, 357 Mich. 134, 146, 97 N.W.2d 719, 725 (1959).
[n25] Since the trial judge did not instruct the jury to differentiate between general
and punitive damages, it may be that the verdict was wholly an award 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.
Stromberg v. California, 283 U.S. 359, 367-368; Williams v. North Carolina, 317 U.S.
287, 291-292; see Yates v. United States, 354 U.S. 298, 311-312; Cramer v. United
States, 325 U.S. 1, 36, n. 45.

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 [p285] whether it could constitutionally support a judgment for
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 "the line between speech
unconditionally guaranteed and speech which may legitimately be regulated."
Speiser v. Randall, 357 U.S. 513, 525. In cases where that line must be drawn, the
rule is that we

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.

Pennekamp v. Florida, 328 U.S. 331, 335; see also One, Inc., v. Olesen, 355 U.S.
371; Sunshine Book Co. v. Summerfield, 355 U.S. 372. We must "make an
independent examination of the whole record," Edwards v. South Carolina, 372 U.S.
229, 235, so as to assure ourselves that the judgment does not constitute a
forbidden intrusion on the field of free expression. [n26]
Applying these standards, we consider that the proof presented to show actual
malice lacks the convincing [p286] clarity which the constitutional standard
demands, and hence that it would not constitutionally sustain the judgment for
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 was 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 "substantially correct,"
affords no constitutional warrant for the Alabama Supreme Court's conclusion that it
was a

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
inferable therefrom.

The statement does not indicate malice at the time of the publication; even if the
advertisement was not "substantially correct" -- although respondent's 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' good faith in holding it. The Times' failure to
retract upon respondent's 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 here. 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 [p287]
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' 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 in the Times' own files. The mere
presence of the stories in the files does not, of course, establish that the Times
"knew" 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' organization
having responsibility for the publication of the advertisement. With respect to the
failure of those persons to 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' policy of rejecting
advertisements containing "attacks of a personal character"; [n27] their failure to
reject it on this ground was not unreasonable. We think [p288] 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. Cf. Charles Parker Co. v. Silver City Crystal
Co., 142 Conn. 605, 618, 116 A.2d 440, 446 (1955); Phoenix Newspapers, Inc., v.
Choisser, 82 Ariz. 271, 277-278, 312 P.2d 150, 154-155 (1957).

We also think the evidence was constitutionally defective in another respect: it was
incapable of supporting the jury's finding that the allegedly libelous statements
were made "of and concerning" 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:

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. . . .

(Citations to record omitted.) 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 this significance to the word "They," it is plain that
these statements could not reasonably be read as accusing respondent of personal
involvement in the acts [p289] in question. The statements upon which respondent
principally relies as referring to him are the two allegations that did concern the
police or police functions: that "truckloads of police . . . ringed the Alabama State
College Campus" after the demonstration on the State Capitol steps, and that Dr.
King had been "arrested . . . seven times." These statements were false only in that
the police had been "deployed near" the campus, but had not actually "ringed" it,
and had not gone there in connection with the State Capitol 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 the 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. [n28] This reliance on the bare [p290] fact of
respondent's official position [n29] was made explicit by the Supreme Court of
Alabama. That court, in holding that the trial court "did not err in overruling the
demurrer [of the Times] in the aspect that the libelous [p291] matter was not of and
concerning the [plaintiff,]" based its ruling on the proposition that:

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.

273 Ala., at 674-675, 144 So.2d at 39.

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.

City of Chicago v. Tribune Co., 307 Ill. 595, 601, 139 N.E. [p292] 86, 88 (1923). 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, "reflects not only on me but on the other Commissioners and the
community." Raising 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 courts
strikes at the very center of the constitutionally protected area of free expression.
[n30] We hold that such a proposition may not constitutionally be utilized to
establish that an otherwise impersonal attack on governmental operations was a
libel of an 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

9. Syllabus

Respondent's radio station, which broadcast news reports every half hour, broadcast
news stories of petitioner's arrest for possession of obscene literature and the police
seizure of "obscene books," and stories concerning petitioner's lawsuit against
certain officials alleging that the magazines he distributed were not obscene and
seeking injunctive relief from police interference with his business. These latter
stories did not mention petitioner's name, but used the terms "smut literature
racket" and "girlie-book peddlers." Following petitioner's acquittal of criminal
obscenity charges, he filed this diversity action in District Court seeking damages
under Pennsylvania's libel law. The jury found for petitioner and awarded $25,000 in
general damages; and $725,000 in punitive damages, which was reduced by the
court on remittitur to $250,000. The Court of Appeals reversed, holding that the
New York Times Co. v. Sullivan, 376 U.S. 254, standard applied, and "the fact that
plaintiff was not a public figure cannot be accorded decisive significance."

Held: The judgment is affirmed. Pp. 40-62.

MR. JUSTICE BRENNAN, joined by THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN,
concluded that the New York Times standard of knowing or reckless falsity applies in
a state civil libel action brought by a private individual for a defamatory falsehood
uttered in a radio news broadcast about the individual's involvement in an event of
public or general interest. Pp. 40-57.

MR. JUSTICE BLACK concluded that the First Amendment protects the news media
from libel judgments even when statements are made with knowledge that they are
false. P. 57.

MR. JUSTICE WHITE concluded that, in the absence of actual malice as defined in
New York Times, supra, the First Amendment gives the news media a privilege to
report and comment upon the official actions of public servants in full detail, without
sparing from public view the reputation or privacy of an individual involved in or
affected by any official action. Pp. 59-62. [p30]

BRENNAN, J., announced the Court's judgment and delivered an opinion in which
BURGER, C.J., and BLACKMUN, J., joined. BLACK, J., post, p. 57, and WHITE, J., post,
p. 57, filed opinions concurring in the judgment. HARLAN, J., filed a dissenting
opinion, post, p. 62. MARSHALL, J., filed a dissenting opinion in which STEWART, J.,
joined, post, p. 78. DOUGLAS, J., took no part in the consideration or decision of this
case.

TOP

Opinion

BRENNAN, J., Judgment of the Court

MR. JUSTICE BRENNAN announced the judgment of the Court and an opinion in
which THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join.

In a series of cases beginning with New York Times Co. v. Sullivan, 376 U.S. 254
(1964), the Court has considered the limitations upon state libel laws imposed by
the constitutional guarantees of freedom of speech and of the press. New York
Times held that in a civil libel action by a public official against a newspaper those
guarantees required clear and convincing proof that a defamatory falsehood alleged
as libel was uttered with "knowledge that it was false or with reckless disregard of
whether it was false or not." Id. at 280. The same requirement was later held to
apply to "public figures" who sued in libel on the basis of alleged defamatory
falsehoods. The several cases considered since New York Times involved actions of
"public officials" or "public figures," usually, but not always, against newspapers or
magazines. [n1] Common to all the cases was a [p31] defamatory falsehood in the
report of an event of "public or general interest." [n2] The instant case presents the
question whether the New York Times' "knowing or reckless falsity standard" applies
in a state civil libel action brought not by a "public official" or a "public figure," but
by a private individual for a defamatory falsehood uttered in a news broadcast by a
radio station about the individual's involvement in an event of public or general
[p32] interest. [n3] The District Court for the Eastern District of Pennsylvania held
that the New York Times standard did not apply. and that Pennsylvania law
determined respondent's liability in this diversity case, 289 F.Supp. 737 (1968). The
Court of Appeals for the Third Circuit held that the New York Times standard did
apply, and reversed the judgment for damages awarded to petitioner by the jury.
415 F.2d 892 (1969). We granted certiorari, 397 U.S. 904 (1970). We agree with the
Court of Appeals, and affirm that court's judgment.

In 1963, petitioner was a distributor of nudist magazines in the Philadelphia

metropolitan area. During the fall of that year, in response to citizen complaints, the
Special Investigations Squad of the Philadelphia Police Department initiated a series
of enforcement actions under the city's obscenity laws. The police, under the
command of Captain Ferguson, purchased various magazines from more than 20
newsstands throughout the city. Based upon Captain Ferguson's determination that
the magazines were obscene, [n4] police, on October 1, 1963, arrested most of the
newsstand operators [n5] on charges of selling obscene material. While the police
were making an arrest at one newsstand, petitioner arrived to deliver some of his
nudist magazines, and was immediately arrested [p33] along with the newsboy. [n6]
Three days later, on October 4, the police obtained a warrant to search petitioner's
home and the rented barn he used as a warehouse, and seized the inventory of
magazines and books found at these locations. Upon learning of the seizures,
petitioner, who had been released on bail after his first arrest, surrendered to the
police and was arrested for a second time.

Following the second arrest, Captain Ferguson telephoned respondent's radio

station WIP and another local radio station, a wire service, and a local newspaper to
inform them of the raid on petitioner's home and of his arrest. WIP broadcast news
reports every half hour to the Philadelphia metropolitan area. These news programs
ran either five or ten minutes, and generally contained from six to twenty different
items that averaged about thirty seconds each. WIP's 6 p.m. broadcast on October
4, 1963, included the following item:

City Cracks Down on Smut Merchants

The Special Investigations Squad raided the home of George Rosenbloom in the
1800 block of Vesta Street this afternoon. Police confiscated 1,000 allegedly
obscene books at Rosenbloom's home and arrested him on charges of possession of
obscene literature. The Special Investigations Squad also raided a barn in the 20
Hundred block of Welsh Road near Bustleton Avenue and confiscated 3,000 obscene
books. Capt. Ferguson says he believes they have hit the supply of a main
distributor of obscene material in Philadelphia. [p34]

This report was rebroadcast in substantially the same form at 6:30 p.m., but at 8
p.m., when the item was broadcast for the third time, WIP corrected the third
sentence to read "reportedly obscene." News of petitioner's arrest was broadcast
five more times in the following twelve hours, but each report described the seized
books as "allegedly" or "reportedly" obscene. From October 5 to October 21, WIP
broadcast no further reports relating to petitioner.

On October 16, petitioner brought an action in Federal District Court against various
city and police officials and against several local news media. [n7] The suit alleged
that the magazines petitioner distributed were not obscene, and sought injunctive
relief prohibiting further police interference with his business, as well as further
publicity of the earlier arrests. The second series of allegedly defamatory
broadcasts related to WIP's news reports of the lawsuit. There were ten broadcasts
on October 21, two on October 25, and one on November 1. None mentioned
petitioner by name. The first, at 6:30 a.m. on October 21, was pretty much like
those that followed:

Federal District Judge Lord, will hear arguments today from two publishers and a
distributor all seeking an injunction against Philadelphia Police Commissioner
Howard Leary . . . District Attorney James C. Crumlish . . . a local television station
and a newspaper . . . ordering them to lay off the smut literature racket.

The girlie-book peddlers say the police crackdown [p35] and continued reference to
their borderline literature as smut or filth is hurting their business. Judge Lord
refused to issue a temporary injunction when he was first approached. Today he'll
decide the issue. It will set a precedent . . . and if the injunction is not granted . . . it
could signal an even more intense effort to rid the city of pornography.

On October 27, petitioner went to WIP's studios after hearing from a friend that the
station had broadcast news about his lawsuit. Using a lobby telephone to talk with a
part-time newscaster, petitioner inquired what stories WIP had broadcast about him.
The newscaster asked him to be more specific about dates and times. Petitioner
then asked for the noon news broadcast on October 21, 1963, which the newscaster
read to him over the phone; it was similar to the above 6:30 a.m. broadcast.
According to petitioner, the ensuing interchange was brief. Petitioner told the
newscaster that his magazines were "found to be completely legal and legitimate by
the United States Supreme Court." When the newscaster replied the district
attorney had said the magazines were obscene, petitioner countered that he had a
public statement of the district attorney declaring the magazines legal. At that
point, petitioner testified, "the telephone conversation was terminated. . . . He just
hung up." Petitioner apparently made no request for a retraction or correction, and
none was forthcoming. WIP's final report on petitioner's lawsuit -- the only one after
petitioner's unsatisfactory conversation at the station -- occurred on November 1
after the station had checked the story with the judge involved. [n8] [p36]

II

In May, 1964 a jury acquitted petitioner in state court of the criminal obscenity
charges under instructions of the trial judge that, as a matter of law, the nudist
magazines distributed by petitioner were not obscene. Following his acquittal,
petitioner filed this diversity action in District Court seeking damages under
Pennsylvania's libel law. Petitioner alleged that WIP's unqualified characterization of
the books seized as "obscene" in the 6 and 6:30 p.m. broadcasts of October 4,
describing his arrest, constituted libel per se and was proved false by petitioner's
subsequent acquittal. In addition, he alleged that the broadcasts in the second
series describing his court suit for injunctive relief were also false and defamatory in
that WIP characterized petitioner and his business associates as "smut distributors"
and "girlie-book peddlers" and, further, falsely characterized the suit as an attempt
to force the defendants "to lay off the smut literature racket."

At the trial, WIP's defenses were truth and privilege. WIP's news director testified
that his eight-man staff of reporters prepared their own newscasts and broadcast
their material themselves, and that material for the news programs usually came
either from the wire services or from telephone tips. None of the writers or
broadcasters involved in preparing the broadcasts in this case testified. The news
director's recollection was that the primary source of information for the first series
of broadcasts [p37] about petitioner's arrest was Captain Ferguson, but that, to the
director's knowledge, the station did not have any further verification. Captain
Ferguson testified that he had informed WIP and other media of the police action,
and that WIP had accurately broadcast what he told the station. The evidence
regarding WIP's investigation of petitioner's lawsuit in the second series of
broadcasts was even more sparse. The news director testified that he was "sure we
would check with the District Attorney's office also and with the Police Department,"
but "it would be difficult for me to specifically state what additional corroboration we
had." In general, he testified that WIP's half-hour deadlines required it to rely on
wire service copy and oral reports from previously reliable sources, subject to the
general policy that "we will contact as many sources as we possibly can on any kind
of a story."

III

Pennsylvania's libel law tracks almost precisely the Restatement (First) of Torts
provisions on the subject. Pennsylvania holds actionable any unprivileged
"malicious" [n9] publication of matter which tends to harm a person's reputation
and expose him to public hatred, contempt, or ridicule. Schnabel v. Meredith, 378
Pa. 609, 107 A.2d 860 (1954); Restatement of Torts 558, 559 (1938).
Pennsylvania law recognizes truth as a complete defense to a libel action. Schonek
v. WJAC, Inc., 436 Pa. 78, 84, 258 A.2d 504, 507 (1969); Restatement of Torts 582.
It recognizes an absolute immunity for defamatory statements made by high state
officials, even if published with an improper motive, actual malice, or knowing
falsity. Montgomery v. Philadelphia, 392 Pa. 178, 140 A.2d 100 (1958); Restatement
of Torts 591, [p38] and it recognizes a conditional privilege for news media to
report judicial, administrative, or legislative proceedings if the account is fair and
accurate, and not published solely for the purpose of causing harm to the person
defamed, even though the official information is false or inaccurate. Sciandra v.
Lynett, 409 Pa. 595, 600-601, 187 A.2d 586, 588-589 (1963); Restatement of Torts
611. The conditional privilege of the news media may be defeated, however, by

"want of reasonable care and diligence to ascertain the truth, before giving currency
to an untrue communication." The failure to employ such "reasonable care and
diligence" can destroy a privilege which otherwise would protect the utterer of the
communication.

Purcell v. Westinghouse Broadcasting Co., 411 Pa. 167, 179, 191 A.2d 662, 668
(1963). Pennsylvania has also enacted verbatim the Restatement's provisions on
burden of proof, which place the burden of proof for the affirmative defenses of
truth and privilege upon the defendant. [n10] [p39]

At the close of the evidence, the District Court denied respondent's motion for a
directed verdict and charged the jury, in conformity with Pennsylvania law, that four
findings were necessary to return a verdict for petitioner: (1) that one or more of the
broadcasts were defamatory; (2) that a reasonable listener would conclude that the
defamatory statement referred to petitioner; (3) that WIP had forfeited its privilege
to report official proceedings fairly and accurately, either because it intended to
injure the plaintiff personally or because it exercised the privilege unreasonably and
without reasonable care; and (4) that the reporting was false. The jury was
instructed that petitioner had the burden of proof on the first three issues, but that
respondent had the burden of proving that the reporting was true. The jury was
further instructed that, "as a matter of law," petitioner was not entitled to actual
damages claimed for loss of business "not because it wouldn't ordinarily be, but
because there has been evidence that this same subject matter was the subject" of
broadcasts over other television and radio stations and of newspaper reports, "so if
there was any business lost . . . we have no proof . . . that [it] resulted directly from
the broadcasts by WIP. . . ." App. 331a. On the question of punitive damages, the
judge gave the following instruction:
[I]f you find that this publication arose from a bad motive or malice toward the
plaintiff, or if you find that it was published with reckless indifference to the truth, if
you find that it was not true, you would be entitled to award punitive damages, and
punitive damages are awarded as a deterrent from future conduct of the same sort.

They really are awarded only for outrageous conduct, as I have said, with a bad
motive or with reckless disregard of the interests of others, and before [p40] you
would award punitive damages, you must find that these broadcasts were published
with a bad motive or with reckless disregard of the rights of others, or reckless
indifference to the rights of others. . . .

The jury returned a verdict for petitioner and awarded $25,000 in general damages,
and $725,000 in punitive damages. The District Court reduced the punitive
damages award to $250,000 on remittitur, but denied respondent's motion for
judgment n.o.v. In reversing, the Court of Appeals emphasized that the broadcasts
concerned matters of public interest, and that they involved "hot news" prepared
under deadline pressure. The Court of Appeals concluded that

the fact that plaintiff was not a public figure cannot be accorded decisive
importance if the recognized important guarantees of the First Amendment are to
be adequately implemented.

415 F.2d at 896. For that reason, the court held that the New York Times standard
applied and, further, directed that judgment be entered for respondent, holding
that, as a matter of law, petitioner's evidence did not meet that standard.

IV

Petitioner concedes that the police campaign to enforce the obscenity laws was an
issue of public interest, and, therefore, that the constitutional guarantees for
freedom of speech and press imposed limits upon Pennsylvania's power to apply its
libel laws to compel respondent to compensate him in damages for the alleged
defamatory falsehoods broadcast about his involvement. As noted, the narrow
question he raises is whether, because he is not a "public official" or a "public
figure," but a private individual, those limits required that he prove that the
falsehoods resulted from a failure of respondent to exercise reasonable care, or
required that he prove that [p41] the falsehoods were broadcast with knowledge of
their falsity or with reckless disregard of whether they were false or not. That
question must be answered against the background of the functions of the
constitutional guarantees for freedom of expression. Rosenblatt v. Baer, 383 U.S.
75, at 84-85, n. 10 (1966).

Self-governance in the United States presupposes far more than knowledge and
debate about the strictly official activities of various levels of government. The
commitment of the country to the institution of private property, protected by the
Due Process and Just Compensation Clauses in the Constitution, places in private
hands vast areas of economic and social power that vitally affect the nature and
quality of life in the Nation. Our efforts to live and work together in a free society
not completely dominated by governmental regulation necessarily encompass far
more than politics in a narrow sense. "The guarantees for speech and press are not
the preserve of political expression or comment upon public affairs." Time, Inc. v.
Hill, 385 U.S. 374, 388 (1967).

Freedom of discussion, if it would fulfill its historic function in this nation, must
embrace all issues about which information is needed or appropriate to enable the
members of society to cope with the exigencies of their period.

Thornhill v. Alabama, 310 U.S. 88, 102 (1940). Although the limitations upon civil
libel actions, first held in New York Times to be required by the First Amendment,
were applied in that case in the context of defamatory falsehoods about the official
conduct of a public official, later decisions have disclosed the artificiality, in terms of
the public's interest, of a simple distinction between "public" and "private"
individuals or institutions:

Increasingly in this country, the distinctions between governmental and private

sectors are blurred. . . . In many situations, policy determinations [p42] which
traditionally were channeled through formal political institutions are now originated
and implemented through a complex array of boards, committees, commissions,
corporations, and associations, some only loosely connected with the Government.
This blending of positions and power has also occurred in the case of individuals so
that many who do not hold public office at the moment are nevertheless intimately
involved in the resolution of important public questions. . . .
. . . Our citizenry has a legitimate and substantial interest in the conduct of such
persons, and freedom of the press to engage in uninhibited debate about their
involvement in public issues and events is as crucial as it is in the case of "public
officials."

Curtis Publishing Co. v. Butts, 388 U.S. 130, 163-164 (1967) (Warren, C.J., concurring
in result).

Moreover, the constitutional protection was not intended to be limited to matters

bearing broadly on issues of responsible government.

[T]he Founders . . . felt that a free press would advance "truth, science, morality,
and arts in general," as well as responsible government.

Id. at 147 (opinion of HARLAN, J.). Comments in other cases reiterate this judgment
that the First Amendment extends to myriad matters of public interest. In Time, Inc.
v. Hill, supra, we had "no doubt that the . . . opening of a new play linked to an
actual incident, is a matter of public interest," 385 U.S. at 388, which was entitled to
constitutional protection. Butts held that an alleged "fix" of a college football game
was a public issue. Associated Press v. Walker, 388 U.S. 130 (1967), a companion
case to Butts, established that the public had a similar interest in the events and
personalities involved in federal efforts to enforce a court decree ordering the
enrollment of a Negro student in the University of Mississippi. Thus, these cases
underscore the vitality, as [p43] well as the scope, of the "profound national
commitment to the principle that debate on public issues should be uninhibited,
robust, and wide-open." New York Times Co. v. Sullivan, 376 U.S. at 270-271
(emphasis added).

If a matter is a subject of public or general interest, it cannot suddenly become less

so merely because a private individual is involved, or because, in some sense, the
individual did not "voluntarily" choose to become involved. The public's primary
interest is in the event; the public focus is on the conduct of the participant and the
content, effect, and significance of the conduct, not the participant's prior
anonymity or notoriety. [n11] The present case illustrates the point. The community
has a vital interest in the proper enforcement of its criminal laws, particularly in an
area such as obscenity, where a number of highly important values are potentially
in conflict: the public has an interest both in seeing that the criminal law is
adequately enforced and in assuring that the law is not used unconstitutionally to
suppress free expression. Whether the person involved is a famous large-scale
magazine distributor or a "private" businessman running a corner newsstand has no
relevance in ascertaining whether the public has an interest in the issue. We honor
the commitment to robust debate on public issues, which is embodied in the First
Amendment, [p44] by extending constitutional protection to all discussion and
communication involving matters of public or general concern, without regard to
whether the persons involved are famous or anonymous. [n12]

Our Brother WHITE agrees that the protection afforded by the First Amendment
depends upon whether the issue involved in the publication is an issue of public or
general concern. He would, however, confine our holding to the situation raised by
the facts in this case, that is, limit it to issues involving "official actions of public
servants." In our view, that might be misleading. It is clear that there has emerged
from our cases decided since New York Times the concept that the First
Amendment's impact upon state libel laws derives not so much from whether the
plaintiff is a "public official," "public figure," or "private individual," as it derives from
the question whether the allegedly defamatory publication concerns a matter of
public or general interest. See T. Emerson, The System of Freedom of Expression
531-532, 540 (1970). In that circumstance, we think the time has come forthrightly
to announce that the determinant whether the First Amendment applies to state
libel actions is whether the utterance involved concerns an issue of public or
general concern, albeit leaving the [p45] delineation of the reach of that term to
future cases. As our Brother WHITE observes, that is not a problem in this case,
since police arrest of a person for distributing allegedly obscene magazines clearly
constitutes an issue of public or general interest. [n13]

We turn then to the question to be decided. Petitioner's argument that the

Constitution should be held to require that the private individual prove only that the
publisher failed to exercise "reasonable care" in publishing defamatory falsehoods
proceeds along two lines. First, he argues that the private individual, unlike the
public figure, does not have access to the media to counter the defamatory
material, and that the private individual, unlike the public figure, has not assumed
the risk of defamation by thrusting himself into the public arena. Second, petitioner
focuses on the important values served by the law of defamation in preventing and
redressing attacks upon reputation.
We have recognized the force of petitioner's arguments, Time, Inc. v. Hill, supra, at
391, and we adhere to the caution expressed in that case against "blind application"
of the New York Times standard. Id. at 390. Analysis of the particular factors
involved, however, convinces us that petitioner's arguments cannot be reconciled
with the purposes of the First Amendment, with our cases, and with the traditional
doctrines of libel law itself. Drawing a distinction between "public" [p46] and
"private" figures makes no sense in terms of the First Amendment guarantees. [n14]
The New York Times standard was applied to libel of a public official or public figure
to give effect to the Amendment's function to encourage ventilation of public issues,
not because the public official has any less interest in protecting his reputation than
an individual in private life. While the argument that public figures need less
protection because they can command media attention to counter criticism may be
true for some very prominent people, even then, it is the rare case where the denial
overtakes the original charge. Denials, retractions, and corrections are not "hot"
news, and rarely receive the prominence of the original story. When the public
official or public figure is a minor functionary, or has left the position that put him in
the public eye, see Rosenblatt v. Baer, supra, the argument loses all of its force. In
the vast majority of libels involving public officials or public figures, the ability to
respond through the media will depend on the same complex factor on which the
ability of a private individual depends: the unpredictable event of the media's
continuing interest in the story. Thus, the unproved, and highly improbable,
generalization that an as-yet undefined class of "public figures" involved in matters
of public concern will be better able to respond [p47] through the media than
private individuals also involved in such matters seems too insubstantial a reed on
which to rest a constitutional distinction. Furthermore, in First Amendment terms,
the cure seems far worse than the disease. If the States fear that private citizens
will not be able to respond adequately to publicity involving them, the solution lies
in the direction of ensuring their ability to respond, rather than in stifling public
discussion of matters of public concern. [n15]

Further reflection over the years since New York Times was decided persuades us
that the view of the "public official" or "public figure" as assuming the risk of
defamation by voluntarily thrusting himself into the public eye bears little
relationship either to the values protected by the First Amendment or to the nature
of our society. We have recognized that "[e]xposure of the self to others in varying
degrees is a concomitant of life in a civilized community." Time, Inc. v. Hill, [p48]
supra at 388. Voluntarily or not, we are all "public" men to some degree.
Conversely, some aspects of the lives of even the most public men fall outside the
area of matters of public or general concern. See n. 12, supra; Griswold v.
Connecticut, 381 U.S. 479 (1965). [n16] Thus, the idea that certain "public" figures
have voluntarily exposed their entire lives to public inspection, while private
individuals have kept theirs carefully shrouded from public view is, at best, a legal
fiction. In any event, such a distinction could easily produce the paradoxical result
of dampening discussion of issues of public or general concern because they
happen to involve private citizens while extending constitutional encouragement to
discussion of aspects of the lives of "public figures" that are not in the area of public
or general concern.

General references to the values protected by the law of libel conceal important
distinctions. Traditional arguments suggest that libel law protects two separate
interests of the individual: first, his desire to preserve a certain privacy around his
personality from unwarranted intrusion, and, second, a desire to preserve his public
good name and reputation. See Rosenblatt v. Baer, 383 U.S. at 92 (STEWART, J.,
concurring). The individual's interest in privacy -- in preventing unwarranted
intrusion upon the private aspects of his life -- is not involved in this case, or even in
the class of cases under consideration, since, by hypothesis, the individual is
involved in matters of public or general concern. [n17] In [p49] the present case,
however, petitioner's business reputation is involved, and thus the relevant
interests protected by state libel law are petitioner's public reputation and good
name.

These are important interests. Consonant with the libel laws of most of the States,
however, Pennsylvania's libel law subordinates these interests of the individual in a
number of circumstances. Thus, high government officials are immune from liability
-- absolutely privileged -- even if they publish defamatory material from an improper
motive, with actual malice, and with knowledge of its falsity. Montgomery v.
Philadelphia, 392 Pa. 178, 140 A.2d 100 (1958). This absolute privilege attaches to
judges, attorneys at law in connection with a judicial proceeding, parties and
witnesses to judicial proceedings, Congressmen and state legislators, and high
national and state executive officials. Restatement of Torts 585-592. Moreover, a
conditional privilege allows newspapers to report the false defamatory material
originally published under the absolute privileges listed above, if done accurately.
Sciandra v. Linett, 409 Pa. 595, 187 A.2d 586 (1963).

Even without the presence of a specific constitutional command, therefore,

Pennsylvania libel law recognizes that society's interest in protecting individual
reputation [p50] often yields to other important social goals. In this case, the vital
needs of freedom of the press and freedom of speech persuade us that allowing
private citizens to obtain damage judgments on the basis of a jury determination
that a publisher probably failed to use reasonable care would not provide adequate
"breathing space" for these great freedoms. Reasonable care is an "elusive
standard" that
would place on the press the intolerable burden of guessing how a jury might assess
the reasonableness of steps taken by it to verify the accuracy of every reference to
a name, picture or portrait.

Time, Inc. v. Hill, 385 U.S. at 389. Fear of guessing wrong must inevitably cause self-
censorship, and thus create the danger that the legitimate utterance will be
deterred. Cf. Speer v. Randall, 357 U.S. 513, 526 (1958).

Moreover, we ordinarily decide civil litigation by the preponderance of the evidence.

Indeed, the judge instructed the jury to decide the present case by that standard. In
the normal civil suit where this standard is employed,

we view it as no more serious in general for there to be an erroneous verdict in the

defendant's favor than for there to be an erroneous verdict in the plaintiff's favor.

In re Winship, 397 U.S. 358, 371 (1970) (HARLAN, J., concurring). In libel cases,
however, we view an erroneous verdict for the plaintiff as most serious. Not only
does it mulct the defendant for an innocent misstatement -- the three-quarter
million dollar jury verdict in this case could rest on such an error -- but the
possibility of such error, even beyond the vagueness of the negligence standard
itself, would create a strong impetus toward self-censorship, which the First
Amendment cannot tolerate. These dangers for freedom of speech and press led us
to reject the "reasonable man" standard of liability as "simply inconsistent" with our
national commitment under the First Amendment when sought to be applied to the
[p51] conduct of a political campaign. Monitor Patriot Co. v. Roy, 401 U.S. 265, 276
(1971). The same considerations lead us to reject that standard here.

We are aware that the press has, on occasion, grossly abused the freedom it is
given by the Constitution. All must deplore such excesses. In an ideal world, the
responsibility of the press would match the freedom and public trust given it. But
from the earliest days of our history, this free society, dependent as it is for its
survival upon a vigorous free press, has tolerated some abuse. In 1799, James
Madison made the point in quoting (and adopting) John Marshall's answer to
Talleyrand's complaints about American newspapers, American State Papers, 2
Foreign Relations 196 (U.S. Cong. 1832):
"Among those principles deemed sacred in America, among those sacred rights
considered as forming the bulwark of their liberty, which the Government
contemplates with awful reverence and would approach only with the most cautious
circumspection, there is no one of which the importance is more deeply impressed
on the public mind than the liberty of the press. That this liberty is often carried to
excess, that it has sometimes degenerated into licentiousness, is seen and
lamented, but the remedy has not yet been discovered. Perhaps it is an evil
inseparable from the good with which it is allied; perhaps it is a shoot which cannot
be stripped from the stalk without wounding vitally the plant from which it is torn.
However desirable those measures might be which might correct without enslaving
the press, they have never yet been devised in America."

6 Writings of James Madison, 1790-1802, p. 336 (G. Hunt ed.1906) (emphasis in

original).

This Court has recognized this imperative:

[T]o insure the ascertainment and publication of the truth about public affairs, it is
essential that the First Amendment [p52] protect some erroneous publications as
well as true ones.

St. Amant v. Thompson, 390 U.S. 727, 732 (1968). We thus hold that a libel action,
as here, by a private individual against a licensed radio station for a defamatory
falsehood in a newscast relating to his involvement in an event of public or general
concern may be sustained only upon clear and convincing proof that the defamatory
falsehood was published with knowledge that it was false or with reckless disregard
of whether it was false or not. [n18] Calculated falsehood, of course, falls outside
"the fruitful exercise of the right of free speech." Garrison v. Louisiana, 379 U.S. 64,
75 (1964).

Our Brothers HARLAN and MARSHALL reject the "knowing or reckless falsehood
standard" in favor of a test that would require, at least, that the person defamed
establish that the publisher negligently failed to ascertain the truth of his story; they
would also limit any recovery to "actual" damages. For the reasons we have stated,
the negligence standard gives insufficient breathing space to First Amendment
values. Limiting recovery to actual damages has the same defects. In the first
instance, that standard, too, leaves the First Amendment insufficient elbow room
within which to function. It is not simply the possibility of a judgment for damages
that results in self-censorship. The very possibility of having to engage in litigation,
an expensive and protracted process, [p53] is threat enough to cause discussion
and debate to "steer far wider of the unlawful zone," thereby keeping protected
discussion from public cognizance. Speiser v. Randall, 357 U.S. at 526. Cf. Blonder-
Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 334-339
(1971). Too, a small newspaper suffers equally from a substantial damage award,
whether the label of the award be "actual" or "punitive." The real thrust of Brothers
HARLAN's and MARSHALL's position, however, is their assertion that their proposal
will not "constitutionalize" the factfinding process. But this clearly is not the way
their test would work in practice. Their approach means only that factfinding will
shift from an inquiry into whether the defamatory statements were knowingly or
recklessly uttered to the inquiry whether they were negligently uttered, and if so, to
an inquiry whether plaintiff suffered "actual" damages. This latter inquiry will
involve judges even more deeply in factfinding. Would the mere announcement by a
state legislature that embarrassment and pain and suffering are measurable actual
losses mean that such damages may be awarded in libel actions? No matter how
the problem is approached, this Court would ultimately have to fashion
constitutional definitions of "negligence" and of "actual damages."

Aside from these particularized considerations, we have repeatedly recognized that

courts may not avoid an excursion into factfinding in this area simply because it is
time-consuming or difficult. We stated in Pennekamp v. Florida, 328 U.S. 331, 335
(1946), that:

The Constitution has imposed upon this Court final authority to determine the
meaning and application of those words of that instrument which require
interpretation to resolve judicial issues. With that responsibility, we are compelled to
examine for ourselves the statements in issue and the circumstances [p54] under
which they were made to see whether or not they . . . are of a character which the
principles of the First Amendment, as adopted by the Due Process Clause of the
Fourteenth Amendment, protect.

(Footnote omitted.) Clearly, then, this Court has an "obligation to test challenged
judgments against the guarantees of the First and Fourteenth Amendments," and, in
doing so, "this Court cannot avoid making an independent constitutional judgment
on the facts of the case." Jacobellis v. Ohio, 378 U.S. 184, 190 (1964). The simple
fact is that First Amendment questions of "constitutional fact" compel this Court's
de novo review. See Edwards v. South Carolina, 372 U.S. 229, 235 (1963); Blackburn
v. Alabama, 361 U.S. 199, 205 n. 5 (1960).

VI

Petitioner argues that the instructions on punitive damages either cured or rendered
harmless the instructions permitting an award of general damages based on a
finding of failure of WIP to exercise reasonable care. We have doubts of the merits of
the premise, [n19] but even [p55] assuming that instructions were given satisfying
the standard of knowing or reckless falsity, the evidence was insufficient to sustain
an award for that petitioner under that standard. In these cases, our

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.

New York Times Co. v. Sullivan, 376 U.S. at 285. Our independent analysis of the
record leads us to agree with the Court of Appeals that none of the proofs,
considered either singly or cumulatively, satisfies the constitutional standard with
the convincing clarity necessary to raise a jury question whether the defamatory
falsehoods were broadcast with knowledge that they were false or with reckless
disregard of whether they were false or not.

The evidence most strongly supporting petitioner is that concerning his visit to
WIP's studio where a part-time newscaster hung up the telephone when petitioner
disputed the newscaster's statement that the District Attorney had characterized
petitioner's magazines as obscene. This contact occurred, however, after all but one
of the second series of broadcasts had been aired. The incident has no probative
value insofar as it bears on petitioner's case as to the first series of broadcasts. That
portion of petitioner's case was based upon the omission from the first two
broadcasts at 6 and 6:30 p.m. on October 4 of the word "alleged" preceding a
characterization of the magazines distributed by petitioner. But that omission was
corrected with the 8 p.m. broadcast, and was not repeated in the five broadcasts
that followed. And we agree with the analysis of the Court of Appeals that led that
court, and leads us, to conclude that the episode failed to provide evidence
satisfying the New York Times standard insofar as it bore on petitioner's [p56] case
based upon the broadcasts on and after October 21 concerning petitioner's lawsuit:
Only one broadcast took place after this conversation. It is attacked on the ground
that it contains an inaccurate statement concerning plaintiff's injunction action in
that it Stated that the district attorney considered plaintiff's publications to be smut
and immoral literature. The transcript of the testimony shows that plaintiff's own
attorney, when questioning defendant' representative concerning the allegedly
defamatory portion of the last broadcast, said that he was not questioning its
"accuracy." Furthermore, his examination of the same witness brought out that
defendant's representative confirmed the story with the judge involved before the
broadcast was made. We think that the episode described failed to provide evidence
of actual malice with the requisite convincing clarity to create a jury issue under
federal standards.

415 F.2d at 897.

Petitioner argues finally that WIP's failure to communicate with him to learn his side
of the case and to obtain a copy of the magazine for examination, sufficed to
support a verdict under the New York Times standard. But our

cases are clear that reckless conduct is not measured by whether a reasonably
prudent man would have published, or would have investigated before publishing.
There must be sufficient evidence to permit the conclusion that the defendant in
fact, entertained serious doubts as to the truth of his publication.

St. Amant v. Thompson, 390 U.S. at 731. Respondent here relied on information
supplied by police officials. Following petitioner's complaint about the accuracy of
the broadcasts, WIP checked its last report with the judge who presided in the case.
While we may assume that the District Court correctly held to be defamatory [p57]
respondent's characterizations of petitioner's business as "the smut literature
racket," and of those engaged in it as "girlie-book peddlers," there is no evidence in
the record to support a conclusion that respondent "in fact entertained serious
doubts as to the truth" of its reports.

Affirmed.

10. JAPAN AIRLINES, petitioner,

vs.

JESUS SIMANGAN, respondent.

DECISION

REYES R.T., J.:

WHEN an airline issues a ticket to a passenger confirmed on a particular flight on a

certain date, a contract of carriage arises, and the passenger has every right to
expect that he would fly on that flight and on that date. If he does not, then the
carrier opens itself to a suit for breach of contract of carriage.1

The power to admit or not an alien into the country is a sovereign act which cannot
be interfered with even by Japan Airlines (JAL).2

In this petition for review on certiorari,3 petitioner JAL appeals the: (1) Decision4
dated May 31, 2005 of the Court of Appeals (CA) ordering it to pay respondent Jesus
Simangan moral and exemplary damages; and (2) Resolution5 of the same court
dated September 28, 2005 denying JAL's motion for reconsideration.

The Facts

In 1991, respondent Jesus Simangan decided to donate a kidney to his ailing cousin,
Loreto Simangan, in UCLA School of Medicine in Los Angeles, California, U.S.A. Upon
request of UCLA, respondent undertook a series of laboratory tests at the National
Kidney Institute in Quezon City to verify whether his blood and tissue type are
compatible with Loreto's.6 Fortunately, said tests proved that respondent's blood
and tissue type were well-matched with Loreto's.7

Respondent needed to go to the United States to complete his preliminary work-up

and donation surgery. Hence, to facilitate respondent's travel to the United States,
UCLA wrote a letter to the American Consulate in Manila to arrange for his visa. In
due time, respondent was issued an emergency U.S. visa by the American Embassy
in Manila.8

Having obtained an emergency U.S. visa, respondent purchased a round trip plane
ticket from petitioner JAL for US$1,485.00 and was issued the corresponding
boarding pass.9 He was scheduled to a particular flight bound for Los Angeles,
California, U.S.A. via Narita, Japan.10

On July 29, 1992, the date of his flight, respondent went to Ninoy Aquino
International Airport in the company of several relatives and friends.11 He was
allowed to check-in at JAL's counter.12 His plane ticket, boarding pass, travel
authority and personal articles were subjected to rigid immigration and security
routines.13 After passing through said immigration and security procedures,
respondent was allowed by JAL to enter its airplane.14

While inside the airplane, JAL's airline crew suspected respondent of carrying a
falsified travel document and imputed that he would only use the trip to the United
States as a pretext to stay and work in Japan.15 The stewardess asked respondent
to show his travel documents. Shortly after, the stewardess along with a Japanese
and a Filipino haughtily ordered him to stand up and leave the plane.16 Respondent
protested, explaining that he was issued a U.S. visa. Just to allow him to board the
plane, he pleaded with JAL to closely monitor his movements when the aircraft stops
over in Narita.17 His pleas were ignored. He was then constrained to go out of the
plane.18 In a nutshell, respondent was bumped off the flight.

Respondent went to JAL's ground office and waited there for three hours. Meanwhile,
the plane took off and he was left behind.19 Afterwards, he was informed that his
travel documents were, indeed, in order.20 Respondent was refunded the cost of his
plane ticket less the sum of US$500.00 which was deducted by JAL.21
Subsequently, respondent's U.S. visa was cancelled.22

Displeased by the turn of events, respondent filed an action for damages against JAL
with the Regional Trial Court (RTC) in Valenzuela City, docketed as Civil Case No.
4195-V-93. He claimed he was not able to donate his kidney to Loreto; and that he
suffered terrible embarrassment and mental anguish.23 He prayed that he be
awarded P3 million as moral damages, P1.5 million as exemplary damages and
P500,000.00 as attorney's fees.24
JAL denied the material allegations of the complaint. It argued, among others, that
its failure to allow respondent to fly on his scheduled departure was due to "a need
for his travel documents to be authenticated by the United States Embassy"25
because no one from JAL's airport staff had encountered a parole visa before.26 It
posited that the authentication required additional time; that respondent was
advised to take the flight the following day, July 30, 1992. JAL alleged that
respondent agreed to be rebooked on July 30, 1992.27

JAL also lodged a counterclaim anchored on respondent's alleged wrongful

institution of the complaint. It prayed for litigation expenses, exemplary damages
and attorney's fees.28

On September 21, 2000, the RTC presided by Judge Floro P. Alejo rendered its
decision in favor of respondent (plaintiff), disposing as follows:

WHEREFORE, judgment is hereby rendered ordering the defendant to pay the

plaintiff the amount of P1,000,000.00 as moral damages, the amount of
P500,000.00 as exemplary damages and the amount of P250,000.00 as attorney's
fees, plus the cost of suit.29

The RTC explained:

In summarily and insolently ordering the plaintiff to disembark while the latter was
already settled in his assigned seat, the defendant violated the contract of carriage;
that when the plaintiff was ordered out of the plane under the pretext that the
genuineness of his travel documents would be verified it had caused him
embarrassment and besmirched reputation; and that when the plaintiff was finally
not allowed to take the flight, he suffered more wounded feelings and social
humiliation for which the plaintiff was asking to be awarded moral and exemplary
damages as well as attorney's fees.

The reason given by the defendant that what prompted them to investigate the
genuineness of the travel documents of the plaintiff was that the plaintiff was not
then carrying a regular visa but just a letter does not appear satisfactory. The
defendant is engaged in transporting passengers by plane from country to country
and is therefore conversant with the travel documents. The defendant should not be
allowed to pretend, to the prejudice of the plaintiff not to know that the travel
documents of the plaintiff are valid documents to allow him entry in the United
States.

The foregoing act of the defendant in ordering the plaintiff to deplane while already
settled in his assigned seat clearly demonstrated that the defendant breached its
contract of carriage with the plaintiff as passenger in bad faith and as such the
plaintiff is entitled to moral and exemplary damages as well as to an award of
attorney's fees.30

Disagreeing with the RTC judgment, JAL appealed to the CA contending that it is not
guilty of breach of contract of carriage, hence, not liable for damages.31 It posited
that it is the one entitled to recover on its counterclaim.32

CA Ruling

In a Decision33 dated May 31, 2005, the CA affirmed the decision of the RTC with
modification in that it lowered the amount of moral and exemplary damages and
deleted the award of attorney's fees. The fallo of the CA decision reads:

WHEREFORE, the appealed Decision is AFFIRMED with MODIFICATION. Appellant

JAPAN AIR LINES is ordered to pay appellee JESUS SIMANGAN the reduced sums, as
follows: Five Hundred Thousand Pesos (P500,000.00) as moral damages, and Two
Hundred Fifty Thousand Pesos (P250,000.00) as exemplary damages. The award of
attorney's fees is hereby DELETED.34

The CA elucidated that since JAL issued to respondent a round trip plane ticket for a
lawful consideration, "there arose a perfected contract between them."35 It found
that respondent was "haughtily ejected"36 by JAL and that "he was certainly
embarrassed and humiliated"37 when, in the presence of other passengers, JAL's
airline staff "shouted at him to stand up and arrogantly asked him to produce his
travel papers, without the least courtesy every human being is entitled to";38 and
that "he was compelled to deplane on the grounds that his papers were fake."39
The CA ratiocinated:

While the protection of passengers must take precedence over convenience, the
implementation of security measures must be attended by basic courtesies.

In fact, breach of the contract of carriage creates against the carrier a presumption
of liability, by a simple proof of injury, relieving the injured passenger of the duty to
establish the fault of the carrier or of his employees; and placing on the carrier the
burden to prove that it was due to an unforeseen event or to force majeure.

That appellee possessed bogus travel documents and that he might stay illegally in
Japan are allegations without substantiation. Also, appellant's attempt to rebook
appellee the following day was too late and did not relieve it from liability. The
damage had been done. Besides, its belated theory of novation, i.e., that appellant's
original obligation to carry appellee to Narita and Los Angeles on July 29, 1992 was
extinguished by novation when appellant and appellant agreed that appellee will
instead take appellant's flight to Narita on the following day, July 30, 1992, deserves
little attention. It is inappropriate at bar. Questions not taken up during the trial
cannot be raised for the first time on appeal.40 (Underscoring ours and citations
were omitted)

Citing Ortigas, Jr. v. Lufthansa German Airlines,41 the CA declared that "(i)n
contracts of common carriage, inattention and lack of care on the part of the carrier
resulting in the failure of the passenger to be accommodated in the class contracted
for amounts to bad faith or fraud which entitles the passengers to the award of
moral damages in accordance with Article 2220 of the Civil Code."42

Nevertheless, the CA modified the damages awarded by the RTC. It explained:

Fundamental in the law on damages is that one injured by a breach of a contract, or

by a wrongful or negligent act or omission shall have a fair and just compensation
commensurate to the loss sustained as consequence of the defendant's act. Being
discretionary on the court, the amount, however, should not be palpably and
scandalously excessive.
Here, the trial court's award of P1,000,000.00 as moral damages appears to be
overblown. No other proof of appellee's social standing, profession, financial
capabilities was presented except that he was single and a businessman. To Us, the
sum of 500,000.00 is just and fair. For, moral damages are emphatically not
intended to enrich a complainant at the expense of the defendant. They are
awarded only to enable the injured party to obtain means, diversion or amusements
that will serve to alleviate the moral suffering he has undergone, by reason of the
defendant's culpable action.

Moreover, the grant of P500,000.00 as exemplary damages needs to be reduced to

a reasonable level. The award of exemplary damages is designed to permit the
courts to mould behavior that has socially deleterious consequences and its
imposition is required by public policy to suppress the wanton acts of the offender.
Hence, the sum of P250,000.00 is adequate under the circumstances.

The award of P250,000.00 as attorney's fees lacks factual basis. Appellee was
definitely compelled to litigate in protecting his rights and in seeking relief from
appellant's misdeeds. Yet, the record is devoid of evidence to show the cost of the
services of his counsel and/or the actual expenses incurred in prosecuting his
action.43 (Citations were omitted)

When JAL's motion for reconsideration was denied, it resorted to the petition at bar.

Issues

JAL poses the following issues -

I.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN RULING THAT RESPONDENT

WAS ENTITLED TO MORAL DAMAGES, CONSIDERING THAT:
A. JAL WAS NOT GUILTY OF BREACH OF CONTRACT.

B. MORAL DAMAGES MAY BE AWARDED IN BREACH OF CONTRACT CASES ONLY

WHEN THE BREACH IS ATTENDED BY FRAUD OR BAD FAITH. ASSUMING ARGUENDO
THAT JAL WAS GUILTY OF BREACH, JAL DID NOT ACT FRAUDULENTLY OR IN BAD
FAITH AS TO ENTITLE RESPONDENT TO MORAL DAMAGES.

C. THE LAW DISTINGUISHES A CONTRACTUAL BREACH EFFECTED IN GOOD FAITH

FROM ONE ATTENDED BY BAD FAITH.

II.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN RULING THAT RESPONDENT

WAS ENTITLED TO EXEMPLARY DAMAGES CONSIDERING THAT:

A. EXEMPLARY DAMAGES ARE NOT RECOVERABLE IN BREACH OF CONTRACT OF

CARRIAGE UNLESS THE CARRIER IS GUILTY OF WANTON, FRAUDULENT, RECKLESS,
OPPRESSIVE OR MALEVOLENT CONDUCT.

B. ASSUMING ARGUENDO THAT JAL WAS GUILTY OF BREACH, JAL DID NOT ACT IN A
WANTON FRAUDULENT, RECKLESS, OPPRESSIVE OR MALEVOLENT MANNER AS TO
ENTITLE RESPONDENT TO EXEMPLARY DAMAGES.

III.

ASSUMING ARGUENDO THAT RESPONDENT WAS ENTITLED TO AN AWARD OF

DAMAGES, WHETHER OR NOT THE COURT OF APPEALS AWARD OF P750,000 IN
DAMAGES WAS EXCESSIVE AND UNPRECEDENTED.

IV.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN NOT FINDING FOR JAL ON ITS
COUNTERCLAIM.44 (Underscoring Ours)

Basically, there are three (3) issues to resolve here: (1) whether or not JAL is guilty
of contract of carriage; (2) whether or not respondent is entitled to moral and
exemplary damages; and (3) whether or not JAL is entitled to its counterclaim for
damages.

Our Ruling

This Court is not a trier of facts.

Chiefly, the issues are factual. The RTC findings of facts were affirmed by the CA.
The CA also gave its nod to the reasoning of the RTC except as to the awards of
damages, which were reduced, and that of attorney's fees, which was deleted.

We are not a trier of facts. We generally rely upon, and are bound by, the
conclusions on this matter of the lower courts, which are better equipped and have
better opportunity to assess the evidence first-hand, including the testimony of the
witnesses.45

We have repeatedly held that the findings of fact of the CA are final and conclusive
and cannot be reviewed on appeal to the Supreme Court provided they are based
on substantial evidence.46 We have no jurisdiction, as a rule, to reverse their
findings.47 Among the exceptions to this rule are: (a) when the conclusion is a
finding grounded entirely on speculations, surmises or conjectures; (b) when the
inference made is manifestly mistaken, absurd or impossible; (c) where there is
grave abuse of discretion; (d) when the judgment is based on a misapprehension of
facts; (e) when the findings of facts are conflicting; (f) when the CA, in making its
findings, went beyond the issues of the case and the same is contrary to the
admissions of both appellant and appellee.48

The said exceptions, which are being invoked by JAL, are not found here. There is no
indication that the findings of the CA are contrary to the evidence on record or that
vital testimonies of JAL's witnesses were disregarded. Neither did the CA commit
misapprehension of facts nor did it fail to consider relevant facts. Likewise, there
was no grave abuse of discretion in the appreciation of facts or mistaken and absurd
inferences.

We thus sustain the coherent facts as established by the courts below, there being
no sufficient showing that the said courts committed reversible error in reaching
their conclusions.

JAL is guilty of breach of

contract of carriage.

That respondent purchased a round trip plane ticket from JAL and was issued the
corresponding boarding pass is uncontroverted.49 His plane ticket, boarding pass,
travel authority and personal articles were subjected to rigid immigration and
security procedure.50 After passing through said immigration and security
procedure, he was allowed by JAL to enter its airplane to fly to Los Angeles,
California, U.S.A. via Narita, Japan.51 Concisely, there was a contract of carriage
between JAL and respondent.

Nevertheless, JAL made respondent get off the plane on his scheduled departure on
July 29, 1992. He was not allowed by JAL to fly. JAL thus failed to comply with its
obligation under the contract of carriage.

JAL justifies its action by arguing that there was "a need to verify the authenticity of
respondent's travel document."52 It alleged that no one from its airport staff had
encountered a parole visa before.53 It further contended that respondent agreed to
fly the next day so that it could first verify his travel document, hence, there was
novation.54 It maintained that it was not guilty of breach of contract of carriage as
respondent was not able to travel to the United States due to his own voluntary
desistance.55

We cannot agree. JAL did not allow respondent to fly. It informed respondent that
there was a need to first check the authenticity of his travel documents with the
U.S. Embassy.56 As admitted by JAL, "the flight could not wait for Mr. Simangan
because it was ready to depart."57

Since JAL definitely declared that the flight could not wait for respondent, it gave
respondent no choice but to be left behind. The latter was unceremoniously bumped
off despite his protestations and valid travel documents and notwithstanding his
contract of carriage with JAL. Damage had already been done when respondent was
offered to fly the next day on July 30, 1992. Said offer did not cure JAL's default.

Considering that respondent was forced to get out of the plane and left behind
against his will, he could not have freely consented to be rebooked the next day. In
short, he did not agree to the alleged novation. Since novation implies a waiver of
the right the creditor had before the novation, such waiver must be express.58 It
cannot be supposed, without clear proof, that respondent had willingly done away
with his right to fly on July 29, 1992.

Moreover, the reason behind the bumping off incident, as found by the RTC and CA,
was that JAL personnel imputed that respondent would only use the trip to the
United States as a pretext to stay and work in Japan.59

Apart from the fact that respondent's plane ticket, boarding pass, travel authority
and personal articles already passed the rigid immigration and security routines,60
JAL, as a common carrier, ought to know the kind of valid travel documents
respondent carried. As provided in Article 1755 of the New Civil Code: "A common
carrier is bound to carry the passengers safely as far as human care and foresight
can provide, using the utmost diligence of very cautious persons, with a due regard
for all the circumstances."61 Thus, We find untenable JAL's defense of "verification
of respondent's documents" in its breach of contract of carriage.

It bears repeating that the power to admit or not an alien into the country is a
sovereign act which cannot be interfered with even by JAL.62

In an action for breach of contract of carriage, all that is required of plaintiff is to

prove the existence of such contract and its non-performance by the carrier through
the latter's failure to carry the passenger safely to his destination.63 Respondent
has complied with these twin requisites.
Respondent is entitled to moral and exemplary damages and attorney's fees plus
legal interest.

With reference to moral damages, JAL alleged that they are not recoverable in
actions ex contractu except only when the breach is attended by fraud or bad faith.
It is contended that it did not act fraudulently or in bad faith towards respondent,
hence, it may not be held liable for moral damages.

As a general rule, moral damages are not recoverable in actions for damages
predicated on a breach of contract for it is not one of the items enumerated under
Article 2219 of the Civil Code.64 As an exception, such damages are recoverable:
(1) in cases in which the mishap results in the death of a passenger, as provided in
Article 1764, in relation to Article 2206(3) of the Civil Code; and (2) in the cases in
which the carrier is guilty of fraud or bad faith, as provided in Article 2220.65

The acts committed by JAL against respondent amounts to bad faith. As found by
the RTC, JAL breached its contract of carriage with respondent in bad faith. JAL
personnel summarily and insolently ordered respondent to disembark while the
latter was already settled in his assigned seat. He was ordered out of the plane
under the alleged reason that the genuineness of his travel documents should be
verified.

These findings of facts were upheld by the CA, to wit:

x x x he was haughtily ejected by appellant. He was certainly embarrassed and

humiliated when, in the presence of other passengers, the appellant's airline staff
shouted at him to stand up and arrogantly asked him to produce his travel papers,
without the least courtesy every human being is entitled to. Then, he was
compelled to deplane on the grounds that his papers were fake. His protestation of
having been issued a U.S. visa coupled with his plea to appellant to closely monitor
his movements when the aircraft stops over in Narita, were ignored. Worse, he was
made to wait for many hours at the office of appellant only to be told later that he
has valid travel documents.66 (Underscoring ours)
Clearly, JAL is liable for moral damages. It is firmly settled that moral damages are
recoverable in suits predicated on breach of a contract of carriage where it is proved
that the carrier was guilty of fraud or bad faith, as in this case. Inattention to and
lack of care for the interests of its passengers who are entitled to its utmost
consideration, particularly as to their convenience, amount to bad faith which
entitles the passenger to an award of moral damages. What the law considers as
bad faith which may furnish the ground for an award of moral damages would be
bad faith in securing the contract and in the execution thereof, as well as in the
enforcement of its terms, or any other kind of deceit.67

JAL is also liable for exemplary damages as its above-mentioned acts constitute
wanton, oppressive and malevolent acts against respondent. Exemplary damages,
which are awarded by way of example or correction for the public good, may be
recovered in contractual obligations, as in this case, if defendant acted in wanton,
fraudulent, reckless, oppressive, or malevolent manner.68

Exemplary damages are designed by our civil law to permit the courts to reshape
behaviour that is socially deleterious in its consequence by creating negative
incentives or deterrents against such behaviour. In requiring compliance with the
standard of extraordinary diligence, a standard which is, in fact, that of the highest
possible degree of diligence, from common carriers and in creating a presumption of
negligence against them, the law seeks to compel them to control their employees,
to tame their reckless instincts and to force them to take adequate care of human
beings and their property.69

Neglect or malfeasance of the carrier's employees could give ground for an action
for damages. Passengers have a right to be treated by the carrier's employees with
kindness, respect, courtesy and due consideration and are entitled to be protected
against personal misconduct, injurious language, indignities and abuses from such
employees.70

The assessment of P500,000.00 as moral damages and P100,000.00 as exemplary

damages in respondent's favor is, in Our view, reasonable and realistic. This award
is reasonably sufficient to indemnify him for the humiliation and embarrassment he
suffered. This also serves as an example to discourage the repetition of similar
oppressive acts.
With respect to attorney's fees, they may be awarded when defendant's act or
omission has compelled plaintiff to litigate with third persons or to incur expenses to
protect his interest.71 The Court, in Construction Development Corporation of the
Philippines v. Estrella,72 citing Traders Royal Bank Employees Union-Independent v.
National Labor Relations Commission,73 elucidated thus:

There are two commonly accepted concepts of attorney's fees, the so-called
ordinary and extraordinary. In its ordinary concept, an attorney's fee is the
reasonable compensation paid to a lawyer by his client for the legal services he has
rendered to the latter. The basis of this compensation is the fact of his employment
by and his agreement with the client.

In its extraordinary concept, an attorney's fee is an indemnity for damages ordered

by the court to be paid by the losing party in a litigation. The basis of this is any of
the cases provided by law where such award can be made, such as those authorized
in Article 2208, Civil Code, and is payable not to the lawyer but to the client, unless
they have agreed that the award shall pertain to the lawyer as additional
compensation or as part thereof.74

It was therefore erroneous for the CA to delete the award of attorney's fees on the
ground that the record is devoid of evidence to show the cost of the services of
respondent's counsel. The amount is actually discretionary upon the Court so long
as it passes the test of reasonableness. They may be recovered as actual or
compensatory damages when exemplary damages are awarded and whenever the
court deems it just and equitable,75 as in this case.

Considering the factual backdrop of this case, attorney's fees in the amount of
P200,000.00 is reasonably modest.

The above liabilities of JAL in the total amount of P800,000.00 earn legal interest
pursuant to the Court's ruling in Construction Development Corporation of the
Philippines v. Estrella,76 citing Eastern Shipping Lines, Inc. v. Court of Appeals,77 to
wit:

Regarding the imposition of legal interest at the rate of 6% from the time of the
filing of the complaint, we held in Eastern Shipping Lines, Inc. v. Court of Appeals,
that when an obligation, regardless of its source, i.e., law, contracts, quasi-
contracts, delicts or quasi-delicts is breached, the contravenor can be held liable for
payment of interest in the concept of actual and compensatory damages, subject to
the following rules, to wit -

1. When the obligation is breached, and it consists in the payment of a sum of

money, i.e., a loan or forbearance of money, the interest due should be that which
may have been stipulated in writing. Furthermore, the interest due shall itself earn
legal interest from the time it is judicially demanded. In the absence of stipulation,
the rate of interest shall be 12% per annum to be computed from default, i.e., from
judicial or extrajudicial demand under and subject to the provisions of Article 1169
of the Civil Code.

2. When an obligation, not constituting a loan or forbearance of money, is breached,

an interest on the amount of damages awarded may be imposed at the discretion of
the court at the rate of 6% per annum. No interest, however, shall be adjudged on
unliquidated claims or damages except when or until the demand can be
established with reasonable certainty. Accordingly, where the demand is established
with reasonable certainty, the interest shall begin to run from the time the claim is
made judicially or extrajudicially (Art. 1169, Civil Code) but when such certainty
cannot be so reasonably established at the time the demand is made, the interest
shall begin to run only from the date the judgment of the court is made (at which
time the quantification of damages may be deemed to have been reasonably
ascertained). The actual base for the computation of legal interest shall, in any
case, be on the amount finally adjudged.

3. When the judgment of the court awarding a sum of money becomes final and
executory, the rate of legal interest, whether the case falls under paragraph 1 or
paragraph 2, above, shall be 12% per annum from such finality until its satisfaction,
this interim period being deemed to be by then an equivalent to a forbearance of
credit.78 (Emphasis supplied and citations omitted)

Accordingly, in addition to the said total amount of P800,000.00, JAL is liable to pay
respondent legal interest. Pursuant to the above ruling of the Court, the legal
interest is 6% and it shall be reckoned from September 21, 2000 when the RTC
rendered its judgment. From the time this Decision becomes final and executory,
the interest rate shall be 12% until its satisfaction.
JAL is not entitled to its counterclaim for damages.

The counterclaim of JAL in its Answer79 is a compulsory counterclaim for damages

and attorney's fees arising from the filing of the complaint. There is no mention of
any other counter claims.

This compulsory counterclaim of JAL arising from the filing of the complaint may not
be granted inasmuch as the complaint against it is obviously not malicious or
unfounded. It was filed by respondent precisely to claim his right to damages
against JAL. Well-settled is the rule that the commencement of an action does not
per se make the action wrongful and subject the action to damages, for the law
could not have meant to impose a penalty on the right to litigate.80

We reiterate case law that if damages result from a party's exercise of a right, it is
damnum absque injuria.81 Lawful acts give rise to no injury. Walang perhuwisyong
maaring idulot ang paggamit sa sariling karapatan.

During the trial, however, JAL presented a witness who testified that JAL suffered
further damages. Allegedly, respondent caused the publications of his subject
complaint against JAL in the newspaper for which JAL suffered damages.82

Although these additional damages allegedly suffered by JAL were not incorporated
in its Answer as they arose subsequent to its filing, JAL's witness was able to testify
on the same before the RTC.83 Hence, although these issues were not raised by the
pleadings, they shall be treated in all respects as if they had been raised in the
pleadings.

As provided in Section 5, Rule 10 of the Rules of Court, "(w)hen issues not raised by
the pleadings are tried with the express or implied consent of the parties, they shall
be treated in all respects as if they had been raised in the pleadings."

Nevertheless, JAL's counterclaim cannot be granted.

JAL is a common carrier. JAL's business is mainly with the traveling public. It invites
people to avail themselves of the comforts and advantages it offers.84 Since JAL
deals with the public, its bumping off of respondent without a valid reason naturally
drew public attention and generated a public issue.

The publications involved matters about which the public has the right to be
informed because they relate to a public issue. This public issue or concern is a
legitimate topic of a public comment that may be validly published.

Assuming that respondent, indeed, caused the publication of his complaint, he may
not be held liable for damages for it. The constitutional guarantee of freedom of the
speech and of the press includes fair commentaries on matters of public interest.
This is explained by the Court in Borjal v. Court of Appeals,85 to wit:

To reiterate, fair commentaries on matters of public interest are privileged and

constitute a valid defense in an action for libel or slander. The doctrine of fair
comment means that while in general every discreditable imputation publicly made
is deemed false, because every man is presumed innocent until his guilt is judicially
proved, and every false imputation is deemed malicious, nevertheless, when the
discreditable imputation is directed against a public person in his public capacity, it
is not necessarily actionable. In order that such discreditable imputation to a public
official may be actionable, it must either be a false allegation of fact or a comment
based on a false supposition. If the comment is an expression of opinion, based on
established facts, then it is immaterial that the opinion happens to be mistaken, as
long as it might reasonably be inferred from the facts.86 (Citations omitted and
underscoring ours)

Even though JAL is not a public official, the rule on privileged commentaries on
matters of public interest applies to it. The privilege applies not only to public
officials but extends to a great variety of subjects, and includes matters of public
concern, public men, and candidates for office.87

Hence, pursuant to the Borjal case, there must be an actual malice in order that a
discreditable imputation to a public person in his public capacity or to a public
official may be actionable. To be considered malicious, the libelous statements must
be shown to have been written or published with the knowledge that they are false
or in reckless disregard of whether they are false or not.88
Considering that the published articles involve matters of public interest and that its
expressed opinion is not malicious but based on established facts, the imputations
against JAL are not actionable. Therefore, JAL may not claim damages for them.

WHEREFORE, the petition is DENIED. The appealed Decision of the Court of Appeals
is AFFIRMED WITH MODIFICATION. As modified, petitioner Japan Airlines is ordered
to pay respondent Jesus Simangan the following: (1) P500,000.00 as moral
damages; (2) P100,000.00 as exemplary damages; and (3) P200,000.00 as
attorney's fees.

The total amount adjudged shall earn legal interest at the rate of 6% per annum
from the date of judgment of the Regional Trial Court on September 21, 2000 until
the finality of this Decision. From the time this Decision becomes final and
executory, the unpaid amount, if any, shall earn legal interest at the rate of 12% per
annum until its satisfaction.

SO ORDERED.

11. D E C I S I O N

VELASCO, JR., J.:

The freedom of the press is one of the cherished hallmarks of our democracy; but even as we strive
to protect and respect the fourth estate, the freedom it enjoys must be balanced with responsibility.
There is a fine line between freedom of expression and libel, and it falls on the courts to determine
whether or not that line has been crossed.

The Facts

On the complaint of Atty. Carlos "Ding" So of the Bureau of Customs, four (4) separate informations
were filed on September 8, 1999 with the Regional Trial Court in (RTC) Pasay City. These were
assigned to Branch 112 and docketed as Criminal Case Nos. 99-1597 to 99-1600, and charged
petitioners Erwin Tulfo, as author/writer, Susan Cambri, as managing editor, Rey Salao, as national
editor, Jocelyn Barlizo, as city editor, and Philip Pichay, as president of the Carlo Publishing House,
Inc., of the daily tabloid Remate, with the crime of libel in connection with the publication of the
articles in the column "Direct Hit" in the issues of May 11, 1999; May 12, 1999; May 19, 1999; and
June 25, 1999.1 The four informations read as follows:

Criminal Case No. 99-1598

That on or about the 11th day of May, 1999 in Pasay City, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating
together and mutually helping one another, being then the columnist, publisher and managing editor,
respectively of "REMATE", a tabloid published daily and of general circulation in the Philippines, did
then and there willfully, unlawfully and feloniously and with malicious intent to discredit or dishonor
complainant, ATTY. CARLOS "DING" SO, and with the malicious intent of injuring and exposing said
complainant to public hatred, contempt and ridicule, write and publish in the regular issue of said
publication on May 11, 1999, its daily column "DIRECT HIT", quoted hereunder, to wit:

PINAKAMAYAMAN SA CUSTOMS

Ito palang si Atty. Ding So ng Intelligence Division ng Bureau of Customs and [sic] pinakamayaman
na yata na government official sa buong bansa sa pangungurakot lamang diyan sa South Harbor.

Hindi matibag ang gagong attorney dahil malakas daw ito sa Iglesia ni Kristo.

Hoy, So! . . nakakahiya ka sa mga INC, ikaw na yata ang pinakagago at magnanakaw na miyembro
nito.

Balita ko, malapit ka nang itiwalag ng nasabing simbahan dahil sa mga kalokohan mo.

Abangan bukas ang mga raket ni So sa BOC.

WHEREIN said complainant was indicated as an extortionist, a corrupt public official, smuggler and
having illegally acquired wealth, all as already stated, with the object of destroying his reputation,
discrediting and ridiculing him before the bar of public opinion. 2

Criminal Case No. 99-1599

That on or about the 12th day of May, 1999 in Pasay City, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating
together and mutually helping one another, being then the columnist, publisher and managing editor,
respectively of "REMATE", a tabloid published daily and of general circulation in the Philippines, did
then and there willfully, unlawfully and feloniously and with malicious intent to discredit or dishonor
complainant, ATTY. CARLOS "DING" SO, and with the malicious intent of injuring and exposing said
complainant to public hatred, contempt and ridicule, write and publish in the regular issue of said
publication on May 12, 1999, in daily column "DIRECT HIT", quoted hereunder, to wit:

SI ATTY. SO NG BOC

"LINTEK" din sa pangungurakot itong Ding So ng Bureau of Customs Intelligence Unit sa South
Harbor.

Daan-daang libong piso ang kinikita ng masiba at matakaw na si So sa mga importer na ayaw
ideklara ang totoong laman ng mga container para makaiwas sa pagbayad ng malaking customs
duties at taxes.

Si So ang nagpapadrino sa mga pag-inspection ng mga container na ito. Siyempre-binibigyan din

niya ng salapi yung ibang mga ahensiya para pumikit na lang at itikom ang kanilang nga [sic] bibig
diyan sa mga buwayang taga BOC.
Awang-awa ako sa ating gobyerno. Bankrupt na nga, ninanakawan pa ng mga kawatan tulad ni So.

Ewan ko ba rito kay Atty. So, bakit hindi na lang tumayo ng sarili niyang robbery-hold-up gang para
kumita ng mas mabilis.

Hoy So.. hindi bagay sa iyo ang pagiging attorney . . . Mas bagay sa iyo ang pagiging buwayang
naka korbata at holdaper. Magnanakaw ka So!!"

WHEREIN said complainant was indicated as an extortionist, a corrupt public official, smuggler and
having illegally acquired wealth, all as already stated, with the object of destroying his reputation,
discrediting and ridiculing him before the bar of public opinion. 3

Criminal Case No. 99-1600

That on or about 19th day of May, 1999 in Pasay City, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating
together and mutually helping one another, being then the columnist, publisher and managing editor,
respectively of "REMATE", a tabloid published daily and of general circulation in the Philippines, did
then and there willfully, unlawfully and feloniously and with malicious intent to discredit or dishonor
complainant, ATTY. CARLOS "DING" SO, and with the malicious intent of injuring and exposing said
complainant to public hatred, contempt and ridicule, write and publish in the regular issue of said
publication on May 19, 1999, in daily column "DIRECT HIT", quoted hereunder, to wit:

xxxx

"Tulad ni Atty. Ding So ng Bureau of Customs Intelligence Division, saksakan din ng lakas itong si
Daniel Aquino ng Presidential Anti-Smuggling Unit na nakatalaga sa South Harbor.

Tulad ni So, magnanakaw na tunay itong si Aquino.

Panghihingi ng pera sa mga brokers, ang lakad nito.

Pag hindi nagbigay ng pera ang mga brokers, maiipit ang pagre-release ng kanilang kargamento."

WHEREIN said complainant was indicated as an extortionist, a corrupt public official, smuggler and
having illegally acquired wealth, all as already stated, with the object of destroying his reputation,
discrediting and ridiculing him before the bar of public opinion. 4

Criminal Case No. 99-1597

That on or about 25th day of June, 1999 in Pasay City, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating
together and mutually helping one another, being then the columnist, publisher and managing editor,
respectively of "REMATE", a tabloid published daily and of general circulation in the Philippines, did
then and there willfully, unlawfully and feloniously and with malicious intent to discredit or dishonor
complainant, ATTY. CARLOS "DING" T. SO, and with the malicious intent of injuring and exposing
said complainant to public hatred, contempt and ridicule, write and publish in the regular issue of
said publication on June 25, 1999, its daily column "DIRECT HIT", quoted hereunder, to wit:

xxxx
Nagfile ng P10 M na libel suit itong si Atty. Carlos So ng Bureau of Customs laban sa inyong lingkod
at ilang opisyales ng Remate sa Pasay City Court. Nagalit itong tarantadong si Atty. So dahil
binanatan ko siya at inexpose ang kagaguhan niya sa BOC.

Hoy, So . . . dagdagan mo pa ang pagnanakaw mo dahil hindi kita tatantanan. Buhay ka pa

sinusunog na ang iyong kaluluwa sa impyerno.

WHEREIN said complainant was indicated as an extortionist, a corrupt public official, smuggler and
having illegally acquired wealth, all as already stated, with the object of destroying his reputation,
discrediting and ridiculing him before the bar of public opinion. 5

On November 3, 1999, Tulfo, Salao, and Cambri were arraigned, while Barlizo and Pichay were
arraigned on December 15, 1999. They all pleaded not guilty to the offenses charged.

At pre-trial, the following were admitted by petitioners: (1) that during the four dates of the publication
of the questioned articles, the complaining witness was not assigned at South Harbor; (2) that the
accused and complaining witness did not know each other during all the time material to the four
dates of publication; (3) that Remate is a newspaper/tabloid of general circulation in the Philippines;
(4) the existence and genuineness of the Remate newspaper; (5) the column therein and its
authorship and the alleged libelous statement as well as the editorial post containing the designated
positions of the other accused; and (6) the prosecutions qualified admission that it is the duty of
media persons to expose corruption.6

The prosecution presented four witnesses, namely: Oscar M. Ablan, Atty. James Fortes, Jr., Gladys
Fontanilla, and complainant Atty. So. The prosecution presented documentary evidence as well.

Ablan testified that he had read the four columns written by Tulfo, and that the articles were untrue
because he had known Atty. So since 1992 and had worked with him in the Customs Intelligence
and Investigation Service Division of the Bureau of Customs. He further testified that upon reading
the articles written by Tulfo, he concluded that they referred to Atty. So because the subject articles
identified "Atty. Carlos" as "Atty. Ding So" of the Customs Intelligence and Investigation Service
Division, Bureau of Customs and there was only one Atty. Carlos "Ding" So of the Bureau of
Customs.7

Fontanilla, Records Officer I of the Bureau of Customs, testified that she issued a certification in
connection with these cases upon the request of Atty. So.8 This certification stated that as per
records available in her office, there was only one employee by the name of "Atty. Carlos T. So" who
was also known as "Atty. Ding So" in the Intelligence Division of the Customs Intelligence and
Investigation Service or in the entire Bureau of Customs.9

Atty. Fortes testified that he knew Atty. So as a fellow member of the Iglesia Ni Kristo and as a
lawyer, and that having read the articles of Tulfo, he believed that these were untrue, as he knew
Atty. Carlos "Ding" So.10

Atty. So testified that he was the private complainant in these consolidated cases. He further testified
that he is also known as Atty. "Ding" So, that he had been connected with the Bureau of Customs
since October 1981, and that he was assigned as Officer-in-Charge (OIC) of the Customs
Intelligence and Investigation Service Division at the Manila International Container Port since
December 27, 1999. He executed two complaint-affidavits, one dated June 4, 1999 and the other
dated July 5, 1999, for Criminal Case Nos. 99-1598 to 99-1600. Prior to this, he also filed 14 cases
of libel against Raffy Tulfo, brother of petitioner Erwin Tulfo. He testified that petitioner Tulfos act of
imputing upon him criminality, assailing his honesty and integrity, caused him dishonor, discredit, and
contempt among his co-members in the legal profession, co-officers of the Armed Forces of the
Philippines, co-members and peers in the Iglesia ni Kristo, his co-officers and employees and
superior officers in the Bureau of Customs, and among ordinary persons who had read said articles.
He said it also caused him and his family sleepless nights, mental anguish, wounded feelings,
intrigues, and embarrassment. He further testified that he included in his complaint for libel the
officers of Remate such as the publisher, managing editor, city editor, and national editor because
under Article 360 of the Revised Penal Code (RPC), they are equally responsible and liable to the
same extent as if they were the author of the articles. He also testified that "Ding" is his nickname
and that he is the only person in the entire Bureau of Customs who goes by the name of Atty. Carlos
T. So or Atty. Carlos "Ding" So.11

In his defense, petitioner Tulfo testified that he did not write the subject articles with malice, that he
neither knew Atty. So nor met him before the publication of the articles. He testified that his criticism
of a certain Atty. So of the South Harbor was not directed against the complainant, but against a
person by the name of Atty. "Ding" So at the South Harbor. Tulfo claimed that it was the practice of
certain people to use other peoples names to advance their corrupt practices. He also claimed that
his articles had neither discredited nor dishonored the complainant because as per his source in the
Bureau of Customs, Atty. So had been promoted. He further testified that he did not do any research
on Atty. So before the subject articles, because as a columnist, he had to rely on his source, and that
he had several sources in the Bureau of Customs, particularly in the South Harbor.12

Petitioner Salao testified that he came to know Atty. Carlos "Ding" So when the latter filed a case
against them. He testified that he is an employee of Carlo Publishing House, Inc.; that he was
designated as the national editor of the newspaper Remate since December 1999; that the duties of
the position are to edit, evaluate, encode, and supervise layout of the news from the provinces; and
that Tulfo was under the supervision of Rey Briones, Vice President for Editorial and Head of the
Editorial Division. Salao further testified that he had no participation in the subject articles of Tulfo,
nor had he anything to do with the latters column.13

Petitioner Cambri, managing editor of Remate, testified that she classifies the news articles written
by the reporters, and that in the Editorial Division, the officers are herself; Briones, her supervisor;
Lydia Bueno, as news and city editor; and Salao as national editor. She testified that petitioner
Barlizo is her subordinate, whose duties and responsibilities are the typesetting, editing, and layout
of the page assigned to her, the Metro page. She further testified that she had no participation in the
writing, editing, or publication of the column of Tulfo because the column was not edited. She
claimed that none among her co-accused from the Remate newspaper edited the columns of Tulfo,
that the publication and editing of the subject articles were the responsibility of Tulfo, and that he
was given blanket authority to write what he wanted to write. She also testified that the page wherein
Tulfos column appeared was supervised by Bueno as news editor.14

Petitioner Pichay testified that he had been the president of Carlo Publishing House, Inc. since
December 1998. He testified that the company practice was to have the columnists report directly to
the vice-president of editorials, that the columnists were given autonomy on their columns, and that
the vice-president for editorials is the one who would decide what articles are to be published and
what are not. He further testified that Tulfo was already a regular contributor.15

The Ruling of the RTC

In a Decision dated November 17, 2000, the RTC found petitioners guilty of the crime of Libel. The
dispositive portion reads as follows:
WHEREFORE, the Court finds the accused ERWIN TULFO, SUSAN CAMBRI, REY SALAO,
JOCELYN BARLIZO and PHILIP PICHAY guilty beyond reasonable doubt of four (4) counts of the
crime of LIBEL, as defined in Article 353 of the Revised Penal Code, and penalized by prision
correccional in its minimum and medium periods, or a fine ranging from P200.00 Pesos to P6,000.00
Pesos or both, under Article 355 of the same Code.

Applying the Indeterminate Sentence Law, the Court hereby sentences EACH of the accused to
suffer imprisonment of SIX (6) MONTHS of arresto mayor, as minimum, to FOUR (4) YEARS and
TWO (2) MONTHS of prision correccional, as maximum, for EACH count with accessory penalties
provided by law.

Considering that the accused Erwin Tulfo, Susan Cambri, Rey Salao, Jocelyn Barlizo and Philip
Pichay wrote and published the four (4) defamatory articles with reckless disregard, being, in the
mind of the Court, of whether it was false or not, the said articles libelous per se, they are hereby
ordered to pay, jointly and severally, the sum of EIGHT HUNDRED THOUSAND (P800,000.00)
PESOS, as actual damages, the sum of ONE MILLION PESOS (P1,000,000.00), as moral
damages, and an additional amount of FIVE HUNDRED THOUSAND PESOS (P500,000.00), by
way of exemplary damages, all with subsidiary imprisonment, in case of insolvency, and to pay the
costs.

SO ORDERED.16

The Ruling of the Court of Appeals

Before the Court of Appeals (CA), Tulfo assigned the following errors:

1. THE LOWER COURT ERRED IN IGNORING THE UNREBUTTED TESTIMONY OF THE

APPELLANT THAT HE DID NOT CRITICIZE THE PRIVATE COMPLAINANT WORKING AT THE
NAIA. HE CRITICIZED ANOTHER PERSON WORKING AT THE SOUTH HARBOR. HENCE, THE
ELEMENT OF IDENTITY IS LACKING.

2. THE LOWER COURT ERRED IN IGNORING THE LACK OF THE ESSENTIAL ELEMENT OF
DISCREDIT OR DISHONOR, AS DEFINED BY JURISPRUDENCE.

3. THERE WAS NO MALICE AGAINST THE PRIVATE COMPLAINANT ATTY. CARLOS "DING"
SO.17

His co-accused assigned the following errors:

The trial court seriously erred in holding accused Susan Cambri, Rey Salao, Jocelyn Barlizo and
Philip Pichay liable for the defamations contained in the questioned articles despite the fact that the
trial court did not have any finding as to their participation in the writing, editing and/or publication of
the questioned articles.

The trial court seriously erred in concluding that libel was committed by all of the accused on the
basis of its finding that the elements of libel have been satisfactorily established by evidence on
record.
C

The trial court seriously erred in considering complainant to be the one referred to by Erwin Tulfo in
his articles in question.18

In a Decision19 dated June 17, 2003, the Eighth Division of the CA dismissed the appeal and affirmed
the judgment of the trial court. A motion for reconsideration dated June 30, 2003 was filed by Tulfo,
while the rest of his co-accused filed a motion for reconsideration dated July 2, 2003. In a Resolution
dated December 11, 2003, both motions were denied for lack of merit.20

Petitions for Review on Certiorari under Rule 45

Tulfo brought this petition docketed as G.R. No. 161032, seeking to reverse the Decision of the CA
in CA-G.R. CR No. 25318 which affirmed the decision of the RTC. Petitioners Cambri, Salao,
Barlizo, and Pichay brought a similar petition docketed as G.R. No. 161176, seeking the nullification
of the same CA decision.

In a Resolution dated March 15, 2004, the two cases were consolidated since both cases arise from
the same set of facts, involve the same parties, assail the same decision of the CA, and seek
identical reliefs.21

Assignment of Errors

Petitioner Tulfo submitted the following assignment of errors:

Assuming that the Prosecution presented credible and relevant evidence, the Honorable CA erred in
not declaring the assailed articles as privileged; the CA erred in concluding that malice in law exists
by the courts having incorrectly reasoned out that malice was presumed in the instant case.

II

Even assuming arguendo that the articles complained of are not privileged, the lower court,
nonetheless, committed gross error as defined by the provisions of Section 6 of Rule 45 by its
misappreciation of the evidence presented on matters substantial and material to the guilt or
innocence of the petitioner.22

Petitioners Cambri, Salao, Barlizo, and Pichay submitted their own assignment of errors, as follows:

A - The Court of Appeals Seriously Erred In Its Application of Article 360 Of The Revised Penal Code
By Holding Cambri, Salao And Barlizo Liable For The Defamatory Articles In The May 11, 12, 19 And
June 25, 1999 Issues Of Remate Simply Because They Were Managing Editor, National Editor And
City Editor Respectively Of Remate And By Holding Pichay Also Liable For Libel Merely Because He
Was The President Of Carlo Publishing House, Inc. Without Taking Into Account The Unrebutted
Evidence That Petitioners Had No Participation In The Editing Or Publication Of The Defamatory
Articles In Question.

B - The Court Of Appeals Committed Grave Abuse Of Discretion In Manifestly Disregarding The
Unrebutted Evidence That Petitioners Had No Participation In The Editing Or Publication Of The
Defamatory Articles In Question.
C - The Court Of Appeals Seriously Misappreciated The Evidence In Holding That The Person
Referred To In The Published Articles Was Private Complainant Atty. Carlos So.23

Our Ruling

The petitions must be dismissed.

The assignment of errors of petitioner Tulfo shall be discussed first.

In his appeal, Tulfo claims that the CA erred in not applying the ruling in Borjal v. Court of
Appeals.24 In essence, he argues that the subject articles fall under "qualifiedly privileged
communication" under Borjal and that the presumption of malice in Art. 354 of the RPC does not
apply. He argues that it is the burden of the prosecution to prove malice in fact.

This case must be distinguished from Borjal on several points, the first being that Borjal stemmed
from a civil action for damages based on libel, and was not a criminal case. Second, the ruling in
Borjal was that there was no sufficient identification of the complainant, which shall be differentiated
from the present case in discussing the second assignment of error of Tulfo. Third, the subject in
Borjal was a private citizen, whereas in the present case, the subject is a public official. Finally, it
was held in Borjal that the articles written by Art Borjal were "fair commentaries on matters of public
interest."25 It shall be discussed and has yet to be determined whether or not the articles fall under
the category of "fair commentaries."

In passing, it must be noted that the defense of Tulfos articles being qualifiedly privileged
communication is raised for the first time in the present petition, and this particular issue was never
brought before either the RTC or the CA. Thus, neither the RTC nor the CA had a chance to properly
consider and evaluate this defense. Tulfo now draws parallels between his case and that of Art
Borjal, and argues that the prosecution should have proved malice in fact, and it was error on the
part of the trial and appellate courts to use the presumption of malice in law in Art. 354 of the RPC.
This lays an unusual burden on the part of the prosecution, the RTC, and the CA to refute a defense
that Tulfo had never raised before them. Whether or not the subject articles are privileged
communications must first be established by the defense, which it failed to do at the level of the RTC
and the CA. Even so, it shall be dealt with now, considering that an appeal in a criminal proceeding
throws the whole case open for review.

There is no question of the status of Atty. So as a public official, who served as the OIC of the
Bureau of Customs Intelligence and Investigation Service at the Ninoy Aquino International Airport
(NAIA) at the time of the printing of the allegedly libelous articles. Likewise, it cannot be refuted that
the goings-on at the Bureau of Customs, a government agency, are matters of public interest. It is
now a matter of establishing whether the articles of Tulfo are protected as qualified privileged
communication or are defamatory and written with malice, for which he would be liable.

Freedom of the Press v. Responsibility of the Press

The Court has long respected the freedom of the press, and upheld the same when it came to
commentaries made on public figures and matters of public interest. Even in cases wherein the
freedom of the press was given greater weight over the rights of individuals, the Court, however, has
stressed that such freedom is not absolute and unbounded. The exercise of this right or any right
enshrined in the Bill of Rights, indeed, comes with an equal burden of responsible exercise of that
right. The recognition of a right is not free license for the one claiming it to run roughshod over the
rights of others.
The Journalists Code of Ethics adopted by the National Union of Journalists of the Philippines
shows that the press recognizes that it has standards to follow in the exercise of press freedom; that
this freedom carries duties and responsibilities. Art. I of said code states that journalists "recognize
the duty to air the other side and the duty to correct substantive errors promptly." Art. VIII states that
journalists "shall presume persons accused of crime of being innocent until proven otherwise."

In the present case, it cannot be said that Tulfo followed the Journalists Code of Ethics and
exercised his journalistic freedom responsibly.

In his series of articles, he targeted one Atty. "Ding" So of the Bureau of Customs as being involved
in criminal activities, and was using his public position for personal gain. He went even further than
that, and called Atty. So an embarrassment to his religion, saying "ikaw na yata ang pinakagago at
magnanakaw sa miyembro nito."26 He accused Atty. So of stealing from the government with his
alleged corrupt activities.27 And when Atty. So filed a libel suit against him, Tulfo wrote another article,
challenging Atty. So, saying, "Nagalit itong tarantadong si Atty. So dahil binabantayan ko siya at in-
expose ang kagaguhan niya sa [Bureau of Customs]."28

In his testimony, Tulfo admitted that he did not personally know Atty. So, and had neither met nor
known him prior to the publication of the subject articles. He also admitted that he did not conduct a
more in-depth research of his allegations before he published them, and relied only on his source at
the Bureau of Customs.

In his defense before the trial court, Tulfo claimed knowledge of people using the names of others for
personal gain, and even stated that he had been the victim of such a practice. He argued then that it
may have been someone else using the name of Atty. So for corrupt practices at the South Harbor,
and this person was the target of his articles. This argument weakens his case further, for even with
the knowledge that he may be in error, even knowing of the possibility that someone else may have
used Atty. Sos name, as Tulfo surmised, he made no effort to verify the information given by his
source or even to ascertain the identity of the person he was accusing.

The trial court found Tulfos accusations against Atty. So to be false, but Tulfo argues that the falsity
of contents of articles does not affect their privileged character. It may be that the falsity of the
articles does not prove malice. Neither did Borjal give journalists carte blanche with regard to their
publications. It cannot be said that a false article accusing a public figure would always be covered
by the mantle of qualified privileged communication. The portion of Borjal cited by Tulfo must be
scrutinized further:

Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone
does not prove actual malice. Errors or misstatements are inevitable in any scheme of truly free
expression and debate. Consistent with good faith and reasonable care, the press should not be
held to account, to a point of suppression, for honest mistakes or imperfections in the choice of
language. There must be some room for misstatement of fact as well as for misjudgment. Only by
giving them much leeway and tolerance can they courageously and effectively function as critical
agencies in our democracy. In Bulletin Publishing Corp. v. Noel we held

A newspaper especially one national in reach and coverage, should be free to report on events and
developments in which the public has a legitimate interest with minimum fear of being hauled to
court by one group or another on criminal or civil charges for libel, so long as the newspaper
respects and keeps within the standards of morality and civility prevailing within the general
community.
To avoid the self-censorship that would necessarily accompany strict liability for erroneous
statements, rules governing liability for injury to reputation are required to allow an adequate margin
of error by protecting some inaccuracies. It is for the same reason that the New York
Times doctrinerequires that liability for defamation of a public official or public figure may not be
imposed in the absence of proof of "actual malice" on the part of the person making the libelous
statement.29 (Emphasis supplied.)

Reading more deeply into the case, the exercise of press freedom must be done "consistent with
good faith and reasonable care." This was clearly abandoned by Tulfo when he wrote the subject
articles. This is no case of mere error or honest mistake, but a case of a journalist abdicating his
responsibility to verify his story and instead misinforming the public. Journalists may be allowed an
adequate margin of error in the exercise of their profession, but this margin does not expand to
cover every defamatory or injurious statement they may make in the furtherance of their profession,
nor does this margin cover total abandonment of responsibility.

Borjal may have expanded the protection of qualified privileged communication beyond the
instances given in Art. 354 of the RPC, but this expansion does not cover Tulfo. The addition to the
instances of qualified privileged communications is reproduced as follows:

To reiterate, fair commentaries on matters of public interest are privileged and constitute a valid
defense in an action for libel or slander. The doctrine of fair comment means that while in general
every discreditable imputation publicly made is deemed false, because every man is presumed
innocent until his guilt is judicially proved, and every false imputation is deemed malicious,
nevertheless, when the discreditable imputation is directed against a public person in his public
capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official
may be actionable, it must either be a false allegation of fact or a comment based on a false
supposition. If the comment is an expression of opinion, based on established facts, then it is
immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from
the facts.30 (Emphasis supplied.)

The expansion speaks of "fair commentaries on matters of public interest." While Borjal places fair
commentaries within the scope of qualified privileged communication, the mere fact that the subject
of the article is a public figure or a matter of public interest does not automatically exclude the author
from liability. Borjal allows that for a discreditable imputation to a public official to be actionable, it
must be a false allegation of fact or a comment based on a false supposition. As previously
mentioned, the trial court found that the allegations against Atty. So were false and that Tulfo did not
exert effort to verify the information before publishing his articles.

Tulfo offered no proof for his accusations. He claimed to have a source in the Bureau of Customs
and relied only on this source for his columns, but did no further research on his story. The records
of the case are bereft of any showing that Atty. So was indeed the villain Tulfo pictured him to be.
Tulfos articles related no specific details or acts committed to prove Atty. So was indeed a corrupt
public official. These columns were unsubstantiated attacks on Atty. So, and cannot be
countenanced as being privileged simply because the target was a public official. Although wider
latitude is given to defamatory utterances against public officials in connection with or relevant to
their performance of official duties, or against public officials in relation to matters of public interest
involving them, such defamatory utterances do not automatically fall within the ambit of
constitutionally protected speech.31 Journalists still bear the burden of writing responsibly when
practicing their profession, even when writing about public figures or matters of public interest. As
held in In Re: Emil P. Jurado:
Surely it cannot be postulated that the law protects a journalist who deliberately prints lies or distorts
the truth; or that a newsman may ecape liability who publishes derogatory or defamatory allegations
against a person or entity, but recognizes no obligation bona fide to establish beforehand the factual
basis of such imputations and refuses to submit proof thereof when challenged to do so. It outrages
all notions of fair play and due process, and reduces to uselessness all the injunctions of the
Journalists Code of Ethics to allow a newsman, with all the potential of his profession to influence
popular belief and shape public opinion, to make shameful and offensive charges destructive of
personal or institutional honor and repute, and when called upon to justify the same, cavalierly beg
off by claiming that to do so would compromise his sources and demanding acceptance of his word
for the reliability of those sources.32

The prosecution showed that Tulfo could present no proof of his allegations against Atty. So, only
citing his one unnamed source. It is not demanded of him that he name his source. The
confidentiality of sources and their importance to journalists are accepted and respected. What
cannot be accepted are journalists making no efforts to verify the information given by a source, and
using that unverified information to throw wild accusations and besmirch the name of possibly an
innocent person. Journalists have a responsibility to report the truth, and in doing so must at least
investigate their stories before publication, and be able to back up their stories with proof. The
rumors and gossips spread by unnamed sources are not truth. Journalists are not storytellers or
novelists who may just spin tales out of fevered imaginings, and pass them off as reality. There must
be some foundation to their reports; these reports must be warranted by facts.

Jurado also established that the journalist should exercise some degree of care even when writing
about public officials. The case stated:

Clearly, the public interest involved in freedom of speech and the individual interest of judges (and
for that matter, all other public officials) in the maintenance of private honor and reputation need to
be accommodated one to the other. And the point of adjustment or accommodation between these
two legitimate interests is precisely found in the norm which requires those who, invoking freedom of
speech, publish statements which are clearly defamatory to identifiable judges or other public
officials to exercise bona fide care in ascertaining the truth of the statements they publish. The norm
does not require that a journalist guarantee the truth of what he says or publishes. But the norm
does prohibit the reckless disregard of private reputation by publishing or circulating defamatory
statements without any bona fide effort to ascertain the truth thereof. That this norm represents the
generally accepted point of balance or adjustment between the two interests involved is clear from a
consideration of both the pertinent civil law norms and the Code of Ethics adopted by the journalism
profession in the Philippines.33

Tulfo has clearly failed in this regard. His articles cannot even be considered as qualified privileged
communication under the second paragraph of Art. 354 of the RPC which exempts from the
presumption of malice "a fair and true report, made in good faith, without any comments or remarks,
of any judicial, legislative, or other official proceedings which are not of confidential nature, or any
statement, report, or speech delivered in said proceedings, or of any other act performed by public
officers in the exercise of their functions." This particular provision has several elements which must
be present in order for the report to be exempt from the presumption of malice. The provision can be
dissected as follows:

In order that the publication of a report of an official proceeding may be considered privileged, the
following conditions must exist:
(a) That it is a fair and true report of a judicial, legislative, or other official proceedings which are not
of confidential nature, or of a statement, report or speech delivered in said proceedings, or of any
other act performed by a public officer in the exercise of his functions;

(b) That it is made in good faith; and

(c) That it is without any comments or remarks.34

The articles clearly are not the fair and true reports contemplated by the provision. They provide no
details of the acts committed by the subject, Atty. So. They are plain and simple baseless
accusations, backed up by the word of one unnamed source. Good faith is lacking, as Tulfo failed to
substantiate or even attempt to verify his story before publication. Tulfo goes even further to attack
the character of the subject, Atty. So, even calling him a disgrace to his religion and the legal
profession. As none of the elements of the second paragraph of Art. 354 of the RPC is present in
Tulfos articles, it cannot thus be argued that they are qualified privileged communications under the
RPC.

Breaking down the provision further, looking at the terms "fair" and "true," Tulfos articles do not meet
the standard. "Fair" is defined as "having the qualities of impartiality and honesty." 35"True" is defined
as "conformable to fact; correct; exact; actual; genuine; honest."36 Tulfo failed to satisfy these
requirements, as he did not do research before making his allegations, and it has been shown that
these allegations were baseless. The articles are not "fair and true reports," but merely wild
accusations.

Even assuming arguendo that the subject articles are covered by the shield of qualified privileged
communication, this would still not protect Tulfo.

In claiming that his articles were covered by qualified privileged communication, Tulfo argues that
the presumption of malice in law under Art. 354 of the RPC is no longer present, placing upon the
prosecution the burden of proving malice in fact. He then argues that for him to be liable, there
should have been evidence that he was motivated by ill will or spite in writing the subject articles.

The test to be followed is that laid down in New York Times Co. v. Sullivan, 37 and reiterated in Flor v.
People, which should be to determine whether 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.38

The trial court found that Tulfo had in fact written and published the subject articles with reckless
disregard of whether the same were false or not, as proven by the prosecution. There was the
finding that Tulfo failed to verify the information on which he based his writings, and that the defense
presented no evidence to show that the accusations against Atty. So were true. Tulfo cannot argue
that because he did not know the subject, Atty. So, personally, there was no malice attendant in his
articles. The test laid down is the "reckless disregard" test, and Tulfo has failed to meet that test.

The fact that Tulfo published another article lambasting respondent Atty. So can be considered as
further evidence of malice, as held in U.S. vs. Montalvo,39 wherein publication after the
commencement of an action was taken as further evidence of a malicious design to injure the victim.
Tulfo did not relent nor did he pause to consider his actions, but went on to continue defaming
respondent Atty. So. This is a clear indication of his intent to malign Atty. So, no matter the cost, and
is proof of malice.
Leaving the discussion of qualified privileged communication, Tulfo also argues that the lower court
misappreciated the evidence presented as to the identity of the complainant: that Tulfo wrote about
Atty. "Ding" So, an official of the Bureau of Customs who worked at the South Harbor, whereas the
complainant was Atty. Carlos So who worked at the NAIA. He claims that there has arisen a cloud of
doubt as to the identity of the real party referred to in the articles.

This argument is patently without merit.

The prosecution was able to present the testimonies of two other witnesses who identified Atty. So
from Tulfos articles. There is the certification that there is only one Atty. So in the Bureau of
Customs. And most damning to Tulfos case is the last column he wrote on the matter, referring to
the libel suit against him by Atty. So of the Bureau of Customs. In this article, Tulfo launched further
attacks against Atty. So, stating that the libel case was due to the exposs Tulfo had written on the
corrupt acts committed by Atty. So in the Bureau of Customs. This last article is an admission on the
part of Tulfo that Atty. So was in fact the target of his attacks. He cannot now point to a putative "Atty.
Ding So" at South Harbor, or someone else using the name of Atty. So as the real subject of his
attacks, when he did not investigate the existence or non-existence of an Atty. So at South Harbor,
nor investigate the alleged corrupt acts of Atty. So of the Bureau of Customs. Tulfo cannot say that
there is doubt as to the identity of the Atty. So referred to in his articles, when all the evidence points
to one Atty. So, the complainant in the present case.

Having discussed the issue of qualified privileged communication and the matter of the identity of the
person referred to in the subject articles, there remains the petition of the editors and president of
Remate, the paper on which the subject articles appeared.

In sum, petitioners Cambri, Salao, Barlizo, and Pichay all claim that they had no participation in the
editing or writing of the subject articles, and are thus not liable.

The argument must fail.

The language of Art. 360 of the RPC is plain. It lists the persons responsible for libel:

Art. 360. Persons responsible.Any person who shall publish, exhibit, or cause the publication or
exhibition of any defamation in writing or by similar means, shall be responsible for the same.

The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper,
magazine or serial publication, shall be responsible for the defamations contained therein to the
same extent as if he were the author thereof.

The claim that they had no participation does not shield them from liability. The provision in the RPC
does not provide absence of participation as a defense, but rather plainly and specifically states the
responsibility of those involved in publishing newspapers and other periodicals. It is not a matter of
whether or not they conspired in preparing and publishing the subject articles, because the law
simply so states that they are liable as they were the author.

Neither the publisher nor the editors can disclaim liability for libelous articles that appear on their
paper by simply saying they had no participation in the preparation of the same. They cannot say
that Tulfo was all alone in the publication of Remate, on which the subject articles appeared, when
they themselves clearly hold positions of authority in the newspaper, or in the case of Pichay, as the
president in the publishing company.
As Tulfo cannot simply say that he is not liable because he did not fulfill his responsibility as a
journalist, the other petitioners cannot simply say that they are not liable because they did not fulfill
their responsibilities as editors and publishers. An editor or manager of a newspaper, who has active
charge and control of its management, conduct, and policy, generally is held to be equally liable with
the owner for the publication therein of a libelous article.40 On the theory that it is the duty of the
editor or manager to know and control the contents of the paper,41 it is held that said person cannot
evade responsibility by abandoning the duties to employees,42 so that it is immaterial whether or not
the editor or manager knew the contents of the publication. 43 In Fermin v. People of the
Philippines,44 the Court held that the publisher could not escape liability by claiming lack of
participation in the preparation and publication of a libelous article. The Court cited U.S. v. Ocampo,
stating the rationale for holding the persons enumerated in Art. 360 of the RPC criminally liable, and
it is worth reiterating:

According to the legal doctrines and jurisprudence of the United States, the printer of a publication
containing libelous matter is liable for the same by reason of his direct connection therewith and his
cognizance of the contents thereof. With regard to a publication in which a libel is printed, not only is
the publisher but also all other persons who in any way participate in or have any connection with its
publication are liable as publishers.

xxxx

In the case of State vs. Mason (26 L.R.A., 779; 26 Oreg., 273, 46 Am. St. Rep., 629), the question of
the responsibility of the manager or proprietor of a newspaper was discussed. The court said,
among other things (pp. 782, 783):

"The question then recurs as to whether the manager or proprietor of a newspaper can escape
criminal responsibility solely on the ground that the libelous article was published without his
knowledge or consent. When a libel is published in a newspaper, such fact alone is sufficient
evidence prima facie to charge the manager or proprietor with the guilt of its publication.

"The manager and proprietor of a newspaper, we think ought to be held prima facie criminally for
whatever appears in his paper; and it should be no defense that the publication was made without
his knowledge or consent, x x x.

"One who furnishes the means for carrying on the publication of a newspaper and entrusts its
management to servants or employees whom he selects and controls may be said to cause to be
published what actually appears, and should be held responsible therefore, whether he was
individually concerned in the publication or not, x x x. Criminal responsibility for the acts of an agent
or servant in the course of his employment necessarily implies some degree of guilt or delinquency
on the part of the publisher; x x x.

"We think, therefore, the mere fact that the libelous article was published in the newspaper without
the knowledge or consent of its proprietor or manager is no defense to a criminal prosecution
against such proprietor or manager."

In the case of Commonwealth vs. Morgan (107 Mass., 197), this same question was considered and
the court held that in the criminal prosecution of a publisher of a newspaper in which a libel appears,
he is prima facie presumed to have published the libel, and that the exclusion of an offer by the
defendant to prove that he never saw the libel and was not aware of its publication until it was
pointed out to him and that an apology and retraction were afterwards published in the same paper,
gave him no ground for exception. In this same case, Mr. Justice Colt, speaking for the court, said:
"It is the duty of the proprietor of a public paper, which may be used for the publication of improper
communications, to use reasonable caution in the conduct of his business that no libels be
published." (Whartons Criminal Law, secs. 1627, 1649; 1 Bishops Criminal Law, secs. 219, 221;
People vs. Wilson, 64 Ill., 195; Commonwealth vs. Damon, 136 Mass., 441.)

The above doctrine is also the doctrine established by the English courts. In the case of Rex vs.
Walter (3 Esp., 21) Lord Kenyon said that he was "clearly of the opinion that the proprietor of a
newspaper was answerable criminally as well as civilly for the acts of his servants or agents for
misconduct in the management of the paper."

This was also the opinion of Lord Hale, Mr. Justice Powell, and Mr. Justice Foster.

Lofft, an English author, in his work on Libel and Slander, said:

"An information for libel will lie against the publisher of a papers, although he did not know of its
being put into the paper and stopped the sale as soon as he discovered it."

In the case of People vs. Clay (86 Ill., 147) the court held that

"A person who makes a defamatory statement to the agent of a newspaper for publication, is liable
both civilly and criminally, and his liability is shared by the agent and all others who aid in publishing
it."45

Under Art. 360 of the RPC, as Tulfo, the author of the subject articles, has been found guilty of libel,
so too must Cambri, Salao, Barlizo, and Pichay.

Though we find petitioners guilty of the crime charged, the punishment must still be tempered with
justice. Petitioners are to be punished for libel for the first time. They did not apply for probation to
avoid service of sentence possibly in the belief that they have not committed any crime. In Buatis, Jr.
v. People,46 the Court, in a criminal case for libel, removed the penalty of imprisonment and instead
imposed a fine as penalty. In Sazon v. Court of Appeals,47 the accused was merely fined in lieu of the
original penalty of imprisonment and fine. Freedom of expression as well as freedom of the press
may not be unrestrained, but neither must it be reined in too harshly. In light of this, considering the
necessity of a free press balanced with the necessity of a responsible press, the penalty of a fine of
PhP 6,000 for each count of libel, with subsidiary imprisonment in case of insolvency, should
suffice.48 Lastly, the responsibilities of the members of the press notwithstanding, the difficulties and
hazards they encounter in their line of work must also be taken into consideration.

The award of damages by the lower court must be modified. Art. 2199 of the Civil Code provides,
"Except as provided by law or by stipulation, one is entitled to an adequate compensation only for
such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as
actual or compensatory damages." There was no showing of any pecuniary loss suffered by the
complainant Atty. So. Without proof of actual loss that can be measured, the award of actual
damages cannot stand.

In Del Mundo v. Court of Appeals, it was held, as regards actual and moral damages:

A party is entitled to an adequate compensation for such pecuniary loss actually suffered by him as
he has duly proved. Such damages, to be recoverable, must not only be capable of proof, but must
actually be proved with a reasonable degree of certainty. We have emphasized that these damages
cannot be presumed, and courts, in making an award must point out specific facts which could afford
a basis for measuring whatever compensatory or actual damages are borne.

Moral damages, upon the other hand, may be awarded to compensate one for manifold injuries such
as physical suffering, mental anguish, serious anxiety, besmirched reputation, wounded feelings and
social humiliation. These damages must be understood to be in the concept of grants, not punitive or
corrective in nature, calculated to compensate the claimant for the injury suffered. Although
incapable of exactness and no proof of pecuniary loss is necessary in order that moral damages
may be awarded, the amount of indemnity being left to the sound discretion of the court, it is
imperative, nevertheless, that (1) injury must have been suffered by the claimant, and (2) such injury
must have sprung from any of the cases expressed in Article 2219 and Article 2220 of the Civil
Code. A causal relation, in fine, must exist between the act or omission referred to in the Code which
underlies, or gives rise to, the case or proceeding on the one hand, and the resulting injury, on the
other hand; i.e. the first must be the proximate cause and the latter the direct consequence thereof. 49

It was the articles of Tulfo that caused injury to Atty. So, and for that Atty. So deserves the award of
moral damages. Justification for the award of moral damages is found in Art. 2219(7) of the Civil
Code, which states that moral damages may be recovered in cases of libel, slander, or any other
form of defamation. As the cases involved are criminal cases of libel, they fall squarely within the
ambit of Art. 2219(7).

Moral damages can be awarded even in the absence of actual or compensatory damages. The fact
that no actual or compensatory damage was proven before the trial court does not adversely affect
the offended partys right to recover moral damages.50

And while on the subject of moral damages, it may not be amiss to state at this juncture that Tulfos
libelous articles are abhorrent not only because of its vilifying and demeaning effect on Atty. So
himself, but also because of their impact on members of his family, especially on the children and
possibly even the childrens children.

The Court can perhaps take judicial notice that the sense of kinship runs deeply in a typical Filipino
family, such that the whole family usually suffers or rejoices at the misfortune or good fortune, as the
case may be, of any of its member. Accordingly, any attempt to dishonor or besmirch the name and
reputation of the head of the family, as here, invariably puts the other members in a state of
disrepute, distress, or anxiety. This reality adds an imperative dimension to the award of moral
damages to the defamed party.

The award of exemplary damages, however, cannot be justified. Under Art. 2230 of the Civil Code,
"In criminal offenses, exemplary damages as a part of the civil liability may be imposed when the
crime was committed with one or more aggravating circumstances. Such damages are separate and
distinct from fines and shall be paid to the offended party." No aggravating circumstances
accompanied the commission of the libelous acts; thus, no exemplary damages can be awarded.

Conclusion

The press wields enormous power. Through its widespread reach and the information it imparts, it
can mold and shape thoughts and opinions of the people. It can turn the tide of public opinion for or
against someone, it can build up heroes or create villains.

It is in the interest of society to have a free press, to have liberal discussion and dissemination of
ideas, and to encourage people to engage in healthy debate. It is through this that society can
progress and develop.
Those who would publish under the aegis of freedom of the press must also acknowledge the
corollary duty to publish responsibly. To show that they have exercised their freedom responsibly,
they must go beyond merely relying on unfounded rumors or shadowy anonymous sources. There
must be further investigation conducted, some shred of proof found to support allegations of
misconduct or even criminal activity. It is in fact too easy for journalists to destroy the reputation and
honor of public officials, if they are not required to make the slightest effort to verify their accusations.
Journalists are supposed to be reporters of facts, not fiction, and must be able to back up their
stories with solid research. The power of the press and the corresponding duty to exercise that
power judiciously cannot be understated.

But even with the need for a free press, the necessity that it be free does not mean that it be totally
unfettered. It is still acknowledged that the freedom can be abused, and for the abuse of the
freedom, there must be a corresponding sanction. It falls on the press to wield such enormous power
responsibly. It may be a clich that the pen is mightier than the sword, but in this particular case, the
lesson to be learned is that such a mighty weapon should not be wielded recklessly or thoughtlessly,
but always guided by conscience and careful thought.

A robust and independently free press is doubtless one of the most effective checks on government
power and abuses. Hence, it behooves government functionaries to respect the value of openness
and refrain from concealing from media corruption and other anomalous practices occurring within
their backyard. On the other hand, public officials also deserve respect and protection against false
innuendoes and unfounded accusation of official wrongdoing from an abusive press. As it were, the
law and jurisprudence on libel heavily tilt in favor of press freedom. The common but most unkind
perception is that government institutions and their officers and employees are fair game to official
and personal attacks and even ridicule. And the practice on the ground is just as disconcerting.
Reports and accusation of official misconduct often times merit front page or primetime treatment,
while defenses set up, retraction issued, or acquittal rendered get no more, if ever, perfunctory
coverage. The unfairness needs no belaboring. The balm of clear conscience is sometimes not
enough.

Perhaps lost in the traditional press freedom versus government impasse is the fact that a
maliciously false imputation of corruption and dishonesty against a public official, as here, leaves a
stigmatizing mark not only on the person but also the office to which he belongs. In the ultimate
analysis, public service also unduly suffers.

WHEREFORE, in view of the foregoing, the petitions in G.R. Nos. 161032 and 161176 are
DISMISSED. The CA Decision dated June 17, 2003 in CA-G.R. CR No. 25318 is hereby AFFIRMED
with the MODIFICATIONS that in lieu of imprisonment, the penalty to be imposed upon petitioners
shall be a fine of six thousand pesos (PhP 6,000) for each count of libel, with subsidiary
imprisonment in case of insolvency, while the award of actual damages and exemplary damages
is DELETED. The Decision dated November 17, 2000 of the RTC, Branch 112 in Pasay City in
Criminal Case Nos. 99-1597 to 99-1600 is modified to read as follows:

WHEREFORE, the Court finds the accused ERWIN TULFO, SUSAN CAMBRI, REY SALAO,
JOCELYN BARLIZO, and PHILIP PICHAY guilty beyond reasonable doubt of four (4) counts of the
crime of LIBEL, as defined in Article 353 of the Revised Penal Code, and sentences EACH of the
accused to pay a fine of SIX THOUSAND PESOS (PhP 6,000) per count of libel with subsidiary
imprisonment, in case of insolvency.

Considering that the accused Erwin Tulfo, Susan Cambri, Rey Salao, Jocelyn Barlizo, and Philip
Pichay wrote and published the four (4) defamatory articles with reckless disregard whether it was
false or not, the said articles being libelous per se, they are hereby ordered to pay complainant Atty.
Carlos T. So, jointly and severally, the sum of ONE MILLION PESOS (PhP 1,000,000) as moral
damages. The claim of actual and exemplary damages is denied for lack of merit.

Costs against petitioners.

12. FELICIANO, J.:

Petitioner Hal McElroy an Australian film maker, and his movie production company, Petitioner Ayer
Productions pty Ltd. (Ayer Productions), 1 envisioned, sometime in 1987, the for commercial viewing
and for Philippine and international release, the histolic peaceful struggle of the Filipinos at EDSA
(Epifanio de los Santos Avenue). Petitioners discussed this Project with local movie producer Lope
V. Juban who suggested th they consult with the appropriate government agencies and also with
General Fidel V. Ramos and Senator Juan Ponce Enrile, who had played major roles in the events
proposed to be filmed.

The proposed motion picture entitled "The Four Day Revolution" was endorsed by the Movie
Television Review and Classification Board as wel as the other government agencies consulted.
General Fidel Ramos also signified his approval of the intended film production.

In a letter dated 16 December 1987, petitioner Hal McElroy informed private respondent Juan Ponce
Enrile about the projected motion picture enclosing a synopsis of it, the full text of which is set out
below:

The Four Day Revolution is a six hour mini-series about People Powera unique event in modern
history that-made possible the Peaceful revolution in the Philippines in 1986.

Faced with the task of dramatising these rerkble events, screenwriter David Williamson and history
Prof Al McCoy have chosen a "docu-drama" style and created [four] fictitious characters to trace the
revolution from the death of Senator Aquino, to the Feb revolution and the fleeing of Marcos from the
country.

These character stories have been woven through the real events to help our huge international
audience understand this ordinary period inFilipino history.

First, there's Tony O'Neil, an American television journalist working for major network. Tony reflects
the average American attitude to the Phihppinence once a colony, now the home of crucially
important military bases. Although Tony is aware of the corruption and of Marcos' megalomania, for
him, there appears to be no alternative to Marcos except the Communists.

Next, Angie Fox a fiery Australian photo-journalist. A 'new girl in town,' she is quickly caught up in the
events as it becomes dear that the time has come for a change. Through Angle and her relationship
with one of the Reform Army Movement Colonels (a fictitious character), we follow the developing
discontent in the armed forces. Their dislike for General Ver, their strong loyalty to Defense Minister
Enrile, and ultimately their defection from Marcos.

The fourth fictitious character is Ben Balano, a middle-aged editor of a Manila newspaper who
despises the Marcos regime and is a supporter an promoter of Cory Aquino. Ben has two daughters,
Cehea left wing lawyer who is a secret member of the New People's Army, and Eva--a -P.R. girl,
politically moderate and very much in love with Tony. Ultimately, she must choose between her love
and the revolution.

Through the interviews and experiences of these central characters, we show the complex nature of
Filipino society, and thintertwining series of events and characters that triggered these remarkable
changes. Through them also, we meet all of the principal characters and experience directly
dramatic recreation of the revolution. The story incorporates actual documentary footage filmed
during the period which we hope will capture the unique atmosphere and forces that combined to
overthrow President Marcos.

David Williamson is Australia's leading playwright with some 14 hugely successful plays to his
credit(Don's Party,' 'The Club,' Travelling North) and 11 feature films (The Year of Living
Dangerously,' Gallipoli,' 'Phar Lap').

Professor McCoy (University of New South Wales) is an American historian with a deep
understanding of the Philippines, who has worked on the research for this project for some 18
months. Together with Davi Wilhamgon they have developed a script we believe accurately depicts
the complex issues and events that occurred during th period .

The six hour series is a McElroy and McElroy co-production with Home Box Office in American, the
Australian Broadcast Corporation in Australia and Zenith Productions in the United Kingdom

The proposed motion picture would be essentially a re-enact. ment of the events that made possible
the EDSA revolution; it is designed to be viewed in a six-hour mini-series television play, presented
in a "docu-drama" style, creating four (4) fictional characters interwoven with real events, and
utilizing actual documentary footage as background.

On 21 December 1987, private respondent Enrile replied that "[he] would not and will not approve of
the use, appropriation, reproduction and/or exhibition of his name, or picture, or that of any member
of his family in any cinema or television production, film or other medium for advertising or
commercial exploitation" and further advised petitioners that 'in the production, airing, showing,
distribution or exhibition of said or similar film, no reference whatsoever (whether written, verbal or
visual) should not be made to [him] or any member of his family, much less to any matter purely
personal to them.

It appears that petitioners acceded to this demand and the name of private respondent Enrile was
deleted from the movie script, and petitioners proceeded to film the projected motion picture.

On 23 February 1988, private respondent filed a Complaint with application for Temporary
Restraining Order and Wilt of Pretion with the Regional Trial Court of Makati, docketed as Civil Case
No. 88-151 in Branch 134 thereof, seeking to enjoin petitioners from producing the movie "The Four
Day Revolution". The complaint alleged that petitioners' production of the mini-series without private
respondent's consent and over his objection, constitutes an obvious violation of his right of privacy.
On 24 February 1988, the trial court issued ex-parte a Temporary Restraining Order and set for
hearing the application for preliminary injunction.

On 9 March 1988, Hal McElroy flied a Motion to Dismiss with Opposition to the Petition for
Preliminary Injunction contending that the mini-series fim would not involve the private life of Juan
Ponce Enrile nor that of his family and that a preliminary injunction would amount to a prior restraint
on their right of free expression. Petitioner Ayer Productions also filed its own Motion to Dismiss
alleging lack of cause of action as the mini-series had not yet been completed.

In an Order 2 dated 16 March 1988, respondent court issued a writ of Preliminary Injunction against
the petitioners, the dispositive portion of which reads thus:

WHEREFORE, let a writ of preliminary injunction be issued, ordering defendants, and all persons
and entities employed or under contract with them, including actors, actresses and members of the
production staff and crew as well as all persons and entities acting on defendants' behalf, to cease
and desist from producing and filming the mini-series entitled 'The Four Day Revolution" and from
making any reference whatsoever to plaintiff or his family and from creating any fictitious character in
lieu of plaintiff which nevertheless is based on, or bears rent substantial or marked resemblance or
similarity to, or is otherwise Identifiable with, plaintiff in the production and any similar film or
photoplay, until further orders from this Court, upon plaintiff's filing of a bond in the amount of P
2,000,000.00, to answer for whatever damages defendants may suffer by reason of the injunction if
the Court should finally decide that plaintiff was not entitled thereto.

xxx xxx xxx

(Emphasis supplied)

On 22 March 1988, petitioner Ayer Productions came to this Court by a Petition for certiorari dated
21 March 1988 with an urgent prayer for Preliminary Injunction or Restraining Order, which petition
was docketed as G.R. No. L-82380.

A day later, or on 23 March 1988, petitiioner Hal McElroy also filed separate Petition for certiorari
with Urgent Prayer for a Restraining Order or Preliminary Injunction, dated 22 March 1988, docketed
as G.R. No. L-82398.

By a Resolution dated 24 March 1988, the petitions were consolidated and private respondent was
required to file a consolidated Answer. Further, in the same Resolution, the Court granted a
Temporary Restraining Order partially enjoining the implementation of the respondent Judge's Order
of 16 March 1988 and the Writ of Preliminary Injunction issued therein, and allowing the petitioners
to resume producing and filming those portions of the projected mini-series which do not make any
reference to private respondent or his family or to any fictitious character based on or respondent.

Private respondent seasonably filed his Consolidated Answer on 6 April 1988 invoking in the main a
right of privacy.

The constitutional and legal issues raised by the present Petitions are sharply drawn. Petitioners'
claim that in producing and "The Four Day Revolution," they are exercising their freedom of speech
and of expression protected under our Constitution. Private respondent, upon the other hand,
asserts a right of privacy and claims that the production and filming of the projected mini-series
would constitute an unlawful intrusion into his privacy which he is entitled to enjoy.
Considering first petitioners' claim to freedom of speech and of expression the Court would once
more stress that this freedom includes the freedom to film and produce motion pictures and to
exhibit such motion pictures in theaters or to diffuse them through television. In our day and age,
motion pictures are a univesally utilized vehicle of communication and medium Of expression. Along
with the press, radio and television, motion pictures constitute a principal medium of mass
communication for information, education and entertainment. In Gonzales v. Katigbak, 3 former
Chief Justice Fernando, speaking for the Court, explained:

1. Motion pictures are important both as a medium for the communication of Ideas and the
expression of the artistic impulse. Their effect on the perception by our people of issues and public
officials or public figures as well as the pre cultural traits is considerable. Nor as pointed out in
Burstyn v. Wilson (343 US 495 [19421) is the Importance of motion pictures as an organ of public
opinion lessened by the fact that they are designed to entertain as well as to inform' (Ibid, 501).
There is no clear dividing line between what involves knowledge and what affords pleasure. If such a
distinction were sustained, there is a diminution of the basic right to free expression. ... 4

This freedom is available in our country both to locally-owned and to foreign-owned motion picture
companies. Furthermore the circumstance that the production of motion picture films is a commercial
activity expected to yield monetary profit, is not a disqualification for availing of freedom of speech
and of expression. In our community as in many other countries, media facilities are owned either by
the government or the private sector but the private sector-owned media facilities commonly require
to be sustained by being devoted in whole or in pailt to revenue producing activities. Indeed,
commercial media constitute the bulk of such facilities available in our country and hence to exclude
commercially owned and operated media from the exerciseof constitutionally protected om of
speech and of expression can only result in the drastic contraction of such constitutional liberties in
our country.

The counter-balancing of private respondent is to a right of privacy. It was demonstrated sometime

ago by the then Dean Irene R. Cortes that our law, constitutional and statutory, does include a right
of privacy. 5 It is left to case law, however, to mark out the precise scope and content of this right in
differing types of particular situations. The right of privacy or "the right to be let alone," 6 like the right
of free expression, is not an absolute right. A limited intrusion into a person's privacy has long been
regarded as permissible where that person is a public figure and the information sought to be elicited
from him or to be published about him constitute of apublic character. 7 Succinctly put, the right of
privacy cannot be invoked resist publication and dissemination of matters of public interest. 8 The
interest sought to be protected by the right of privacy is the right to be free from unwarranted
publicity, from the wrongful publicizing of the private affairs and activities of an individual which are
outside the realm of legitimate public concern. 9
Lagunzad v. Vda. de Gonzales, 10 on which private respondent relies heavily, recognized a right to
privacy in a context which included a claim to freedom of speech and of expression. Lagunzad
involved a suit fortion picture producer as licensee and the widow and family of the late Moises
Padilla as licensors. This agreement gave the licensee the right to produce a motion Picture
Portraying the life of Moises Padilla, a mayoralty candidate of the Nacionalista Party for the
Municipality of Magallon, Negros Occidental during the November 1951 elections and for whose
murder, Governor Rafael Lacson, a member of the Liberal Party then in power and his men were
tried and convicted. 11 In the judgment of the lower court enforcing the licensing agreement against
the licensee who had produced the motion picture and exhibited it but refused to pay the stipulated
royalties, the Court, through Justice Melencio-Herrera, said:

Neither do we agree with petitioner's subon that the Licensing Agreement is null and void for lack of,
or for having an illegal cause or consideration, while it is true that petitioner bad pled the rights to the
book entitled "The Moises Padilla Story," that did not dispense with the need for prior consent and
authority from the deceased heirs to portray publicly episodes in said deceased's life and in that of
his mother and the member of his family. As held in Schuyler v. Curtis, ([1895],147 NY 434,42 NE 31
LRA 286.49 Am St Rep 671), 'a privilege may be given the surviving relatives of a deperson to
protect his memory, but the privilege wts for the benefit of the living, to protect their feelings and to
preventa violation of their own rights in the character and memory of the deceased.'

Petitioners averment that private respondent did not have any property right over the life of Moises
Padilla since the latter was a public figure, is neither well taken. Being a public figure ipso facto does
not automatically destroy in toto a person's right to privacy. The right to invade a person's privacy to
disseminate public information does not extend to a fictional or novelized representation of a person,
no matter how public a he or she may be (Garner v. Triangle Publications, DCNY 97 F. Supp., SU
549 [1951]). In the case at bar, while it is true that petitioner exerted efforts to present a true-to-life
Story Of Moises Padilla, petitioner admits that he included a little romance in the film because
without it, it would be a drab story of torture and brutality. 12

In Lagunzad, the Court had need, as we have in the instant case, to deal with contraposed claims to
freedom of speech and of expression and to privacy. Lagunzad the licensee in effect claimed, in the
name of freedom of speech and expression, a right to produce a motion picture biography at least
partly "fictionalized" of Moises Padilla without the consent of and without paying pre-agreed royalties
to the widow and family of Padilla. In rejecting the licensee's claim, the Court said:

Lastly, neither do we find merit in petitioners contention that the Licensing Agreement infringes on
the constitutional right of freedom of speech and of the press, in that, as a citizen and as a
newspaperman, he had the right to express his thoughts in film on the public life of Moises Padilla
without prior restraint.The right freedom of expression, indeed, occupies a preferred position in the
"hierarchy of civil liberties" (Philippine Blooming Mills Employees Organization v. Philippine Blooming
Mills Co., Inc., 51 SCRA 191 [1963]). It is not, however, without limitations. As held in Gonzales v.
Commission on Elections, 27 SCRA 835, 858 [1960]:

xxx xxx xxx

The prevailing doctine is that the clear and present danger rule is such a limitation. Another criterion
for permissible limitation on freedom of speech and the press, which includes such vehicles of the
mass media as radio, television and the movies, is the "balancing of interest test" (Chief Justice
Enrique M. Fernando on the Bill of Rights, 1970 ed. p. 79). The principle "requires a court to take
conscious and detailed consideration of the interplay of interests observable in given situation or
type of situation" (Separation Opinion of the late Chief Justice Castro in Gonzales v. Commission on
Elections, supra, p. 899).

In the case at bar, the interests observable are the right to privacy asserted by respondent and the
right of freedom of expression invoked by petitioner. taking into account the interplay of those
interests, we hold that under the particular circumstances presented, and considering the obligations
assumed in the Licensing Agreement entered into by petitioner, the validity of such agreement will
have to be upheld particularly because the limits of freedom of expression are reached when
expression touches upon matters of essentially private concern." 13

Whether the "balancing of interests test" or the clear and present danger test" be applied in respect
of the instant Petitions, the Court believes that a different conclusion must here be reached: The
production and filming by petitioners of the projected motion picture "The Four Day Revolution" does
not, in the circumstances of this case, constitute an unlawful intrusion upon private respondent's
"right of privacy."

1. It may be observed at the outset that what is involved in the instant case is a prior and direct
restraint on the part of the respondent Judge upon the exercise of speech and of expression by
petitioners. The respondent Judge has restrained petitioners from filming and producing the entire
proposed motion picture. It is important to note that in Lagunzad, there was no prior restrain of any
kind imposed upon the movie producer who in fact completed and exhibited the film biography of
Moises Padilla. Because of the speech and of expression, a weighty presumption of invalidity
vitiates. 14 The invalidity of a measure of prior restraint doesnot, of course, mean that no
subsequent liability may lawfully be imposed upon a person claiming to exercise such constitutional
freedoms. The respondent Judge should have stayed his hand, instead of issuing an ex-parte
Temporary Restraining Order one day after filing of a complaint by the private respondent and
issuing a Preliminary Injunction twenty (20) days later; for the projected motion picture was as yet
uncompleted and hence not exhibited to any audience. Neither private respondent nor the
respondent trial Judge knew what the completed film would precisely look like. There was, in other
words, no "clear and present danger" of any violation of any right to privacy that private respondent
could lawfully assert.

2. The subject matter of "The Four Day Revolution" relates to the non-bloody change of
government that took place at Epifanio de los Santos Avenue in February 1986, and the trian of
events which led up to that denouement. Clearly, such subject matter is one of public interest and
concern. Indeed, it is, petitioners' argue, of international interest. The subject thus relates to a highly
critical stage in the history of this countryand as such, must be regarded as having passed into the
public domain and as an appropriate subject for speech and expression and coverage by any form
of mass media. The subject mater, as set out in the synopsis provided by the petitioners and quoted
above, does not relate to the individual life and certainly not to the private life of private respondent
Ponce Enrile. Unlike in Lagunzad, which concerned the life story of Moises Padilla necessarily
including at least his immediate family, what we have here is not a film biography, more or less
fictionalized, of private respondent Ponce Enrile. "The Four Day Revolution" is not principally about,
nor is it focused upon, the man Juan Ponce Enrile' but it is compelled, if it is to be historical, to refer
to the role played by Juan Ponce Enrile in the precipitating and the constituent events of the change
of government in February 1986.

3. The extent of the instrusion upon the life of private respondent Juan Ponce Enrile that would
be entailed by the production and exhibition of "The Four Day Revolution" would, therefore, be
limited in character. The extent of that intrusion, as this Court understands the synopsis of the
proposed film, may be generally described as such intrusion as is reasonably necessary to keep that
film a truthful historical account. Private respondent does not claim that petitioners threatened to
depict in "The Four Day Revolution" any part of the private life of private respondent or that of any
member of his family.

4. At all relevant times, during which the momentous events, clearly of public concern, that
petitioners propose to film were taking place, private respondent was what Profs. Prosser and
Keeton have referred to as a "public figure:"

A public figure has been defined as a person who, by his accomplishments, fame, or mode of living,
or by adopting a profession or calling which gives the public a legitimate interest in his doings, his
affairs, and his character, has become a 'public personage.' He is, in other words, a celebrity.
Obviously to be included in this category are those who have achieved some degree of reputation by
appearing before the public, as in the case of an actor, a professional baseball player, a pugilist, or
any other entertainment. The list is, however, broader than this. It includes public officers, famous
inventors and explorers, war heroes and even ordinary soldiers, an infant prodigy, and no less a
personage than the Grand Exalted Ruler of a lodge. It includes, in short, anyone who has arrived at
a position where public attention is focused upon him as a person.
Such public figures were held to have lost, to some extent at least, their tight to privacy. Three
reasons were given, more or less indiscrimately, in the decisions" that they had sought publicity and
consented to it, and so could not complaint when they received it; that their personalities and their
affairs has already public, and could no longer be regarded as their own private business; and that
the press had a privilege, under the Constitution, to inform the public about those who have become
legitimate matters of public interest. On one or another of these grounds, and sometimes all, it was
held that there was no liability when they were given additional publicity, as to matters legitimately
within the scope of the public interest they had aroused.

The privilege of giving publicity to news, and other matters of public interest, was held to arise out of
the desire and the right of the public to know what is going on in the world, and the freedom of the
press and other agencies of information to tell it. "News" includes all events and items of information
which are out of the ordinary hum-drum routine, and which have 'that indefinable quality of
information which arouses public attention.' To a very great extent the press, with its experience or
instinct as to what its readers will want, has succeeded in making its own definination of news, as a
glance at any morning newspaper will sufficiently indicate. It includes homicide and othe crimes,
arrests and police raides, suicides, marriages and divorces, accidents, a death from the use of
narcotics, a woman with a rare disease, the birth of a child to a twelve year old girl, the
reappearance of one supposed to have been murdered years ago, and undoubtedly many other
similar matters of genuine, if more or less deplorable, popular appeal.

The privilege of enlightening the public was not, however, limited, to the dissemination of news in the
scene of current events. It extended also to information or education, or even entertainment and
amusement, by books, articles, pictures, films and broadcasts concerning interesting phases of
human activity in general, as well as the reproduction of the public scene in newsreels and
travelogues. In determining where to draw the line, the courts were invited to exercise a species of
censorship over what the public may be permitted to read; and they were understandably liberal in
allowing the benefit of the doubt. 15

Private respondent is a "public figure" precisely because, inter alia, of his participation as a principal
actor in the culminating events of the change of government in February 1986. Because his
participation therein was major in character, a film reenactment of the peaceful revolution that fails to
make reference to the role played by private respondent would be grossly unhistorical. The right of
privacy of a "public figure" is necessarily narrower than that of an ordinary citizen. Private
respondent has not retired into the seclusion of simple private citizenship. he continues to be a
"public figure." After a successful political campaign during which his participation in the EDSA
Revolution was directly or indirectly referred to in the press, radio and television, he sits in a very
public place, the Senate of the Philippines.
5. The line of equilibrium in the specific context of the instant case between the constitutional
freedom of speech and of expression and the right of privacy, may be marked out in terms of a
requirement that the proposed motion picture must be fairly truthful and historical in its presentation
of events. There must, in other words, be no knowing or reckless disregard of truth in depicting the
participation of private respondent in the EDSA Revolution. 16 There must, further, be no
presentation of the private life of the unwilling private respondent and certainly no revelation of
intimate or embarrassing personal facts. 17 The proposed motion picture should not enter into what
Mme. Justice Melencio-Herrera in Lagunzad referred to as "matters of essentially private concern."
18 To the extent that "The Four Day Revolution" limits itself in portraying the participation of private
respondent in the EDSA Revolution to those events which are directly and reasonably related to the
public facts of the EDSA Revolution, the intrusion into private respondent's privacy cannot be
regarded as unreasonable and actionable. Such portrayal may be carried out even without a license
from private respondent.

II

In a Manifestation dated 30 March 1988, petitioner Hal McElroy informed this Court that a Temporary
Restraining Order dated 25 March 1988, was issued by Judge Teofilo Guadiz of the Regional Trial
Court of Makati, Branch 147, in Civil Case No. 88-413, entitled "Gregorio B. Honasan vs. Ayer
Productions Pty. Ltd., McElroy Film Productions, Hal McElroy, Lope Juban and PMP Motion for
Pictures Production" enjoining him and his production company from further filimg any scene of the
projected mini-series film. Petitioner alleged that Honasan's complaint was a "scissors and paste"
pleading, cut out straight grom the complaint of private respondent Ponce Enrile in Civil Case No.
88-151. Petitioner Ayer Productions, in a separate Manifestation dated 4 April 1988, brought to the
attention of the Court the same information given by petitoner Hal McElroy, reiterating that the
complaint of Gregorio B. Honasan was substantially identical to that filed by private respondent
herein and stating that in refusing to join Honasan in Civil Case No. 88-151, counsel for private
respondent, with whom counsel for Gregorio Honasan are apparently associated, deliberately
engaged in "forum shopping."

Private respondent filed a Counter-Manifestation on 13 April 1988 stating that the "slight similarity"
between private respondent's complaint and that on Honasan in the construction of their legal basis
of the right to privacy as a component of the cause of action is understandable considering that court
pleadings are public records; that private respondent's cause of action for invasion of privacy is
separate and distinct from that of Honasan's although they arose from the same tortious act of
petitioners' that the rule on permissive joinder of parties is not mandatory and that, the cited cases
on "forum shopping" were not in point because the parties here and those in Civil Case No. 88-413
are not identical.
For reasons that by now have become clear, it is not necessary for the Court to deal with the
question of whether or not the lawyers of private respondent Ponce Enrile have engaged in "forum
shopping." It is, however, important to dispose to the complaint filed by former Colonel Honasan
who, having refused to subject himself to the legal processes of the Republic and having become
once again in fugitive from justice, must be deemed to have forfeited any right the might have had to
protect his privacy through court processes.

WHEREFORE,

a) the Petitions for Certiorari are GRANTED DUE COURSE, and the Order dated 16 March
1988 of respondent trial court granting a Writ of Preliminary Injunction is hereby SET ASIDE. The
limited Temporary Restraining Order granted by this Court on 24 March 1988 is hereby MODIFIED
by enjoining unqualifiedly the implementation of respondent Judge's Order of 16 March 1988 and
made PERMANENT, and

b) Treating the Manifestations of petitioners dated 30 March 1988 and 4 April 1988 as separate
Petitions for Certiorari with Prayer for Preliminary Injunction or Restraining Order, the Court, in the
exercise of its plenary and supervisory jurisdiction, hereby REQUIRES Judge Teofilo Guadiz of the
Regional Trial Court of Makati, Branch 147, forthwith to DISMISS Civil Case No. 88-413 and
accordingly to SET ASIDE and DISSOLVE his Temporary Restraining Order dated 25 March 1988
and any Preliminary Injunction that may have been issued by him.

No pronouncement as to costs.

BARTNICKI et al. v. VOPPER, aka WILLIAMS, et al.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 991687. Argued December 5, 2000Decided May 21, 2001

During contentious collective-bargaining negotiations between a union representing

teachers at a Pennsylvania high school and the local school board, an unidentified
person intercepted and recorded a cell phone conversation between the chief union
negotiator and the union president (hereinafter petitioners). After the parties
accepted a nonbinding arbitration proposal generally favorable to the teachers,
respondent Vopper, a radio commentator, played a tape of the intercepted
conversation on his public affairs talk show in connection with news reports about
the settlement. Petitioners filed this damages suit under both federal and state
wiretapping laws, alleging, among other things, that their conversation had been
surreptitiously intercepted by an unknown person; that respondent Yocum, the head
of a local organization opposed to the unions demands, had obtained the tape and
intentionally disclosed it to, inter alios, media representatives; and that they had
repeatedly published the conversation even though they knew or had reason to
know that it had been illegally intercepted. In ruling on cross-motions for summary
judgment, the District Court concluded that, under the statutory language, an
individual violates the federal Act by intentionally disclosing the contents of an
electronic communication when he or she knows or has reason to know that the
information was obtained through an illegal interception, even if the individual was
not involved in that interception; found that the question whether the interception
was intentional raised a genuine issue of material fact; and rejected respondents
defense that they were protected by the First Amendment even if the disclosures
violated the statutes, finding that the statutes were

content-neutral laws of general applicability containing no indicia of prior restraint

or the chilling of free speech. The Third Circuit accepted an interlocutory appeal,
and the United States, also a petitioner, intervened to defend the federal Acts
constitutionality. Applying intermediate scrutiny, the court found the statutes invalid
because they deterred significantly more speech than necessary to protect the
private interests at stake, and remanded the case with instructions to enter
summary judgment for respondents.

Held: The First Amendment protects the disclosures made by respondents in this
suit. Pp. 620.

(a) Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as
amended, generally prohibits the interception of wire, electronic, and oral
communications. Title 18 U.S.C. 2511(1)(a) applies to the person who willfully
intercepts such communications and subsection (c) to any person who, knowing or
having reason to know that the communication was obtained through an illegal
interception, willfully discloses its contents. Pp. 69.

(b) Because of this suits procedural posture, the Court accepts that the
interception was unlawful and that respondents had reason to know that.
Accordingly, the disclosures violated the statutes. In answering the remaining
question whether the statutes application in such circumstances violates the First
Amendment, the Court accepts respondents submissions that they played no part
in the illegal interception, that their access to the information was obtained lawfully,
and that the conversations dealt with a matter of public concern. Pp. 910.
 (c) Section 2511(1)(c) is a content-neutral law of general applicability. The
statutes purpose is to protect the privacy of wire, electronic, and oral
communications, and it singles out such communications by virtue of the fact that
they were illegally interceptedby virtue of the source rather than the subject
matter. Cf. Ward v. Rock Against Racism, 491 U.S. 781, 791. On the other hand, the
prohibition against disclosures is fairly characterized as a regulation of speech. Pp.
1012.

(d) In New York Times Co. v. United States, 403 U.S. 713, this Court upheld the
press right to publish information of great public concern obtained from documents
stolen by a third party. In so doing, this Court focused on the stolen documents
character and the consequences of public disclosure, not on the fact that the
documents were stolen. Ibid. It also left open the question whether, in cases where
information has been acquired unlawfully by a newspaper or by a source,
government may punish not only the unlawful acquisition, but also the ensuing
publication. Florida Star v. B. J. F., 491 U.S. 524, 535, n. 8. The issue here is a
narrower version of that question: Where the publisher has lawfully obtained
information from a source who obtained it unlawfully, may the government punish
the ensuing publication based on the defect in a chain? The Courts refusal to
construe the issue more broadly is consistent with its repeated refusal to answer
categorically whether the publication of truthful information may ever be punished
consistent with the First Amendment. Accordingly, the Court considers whether,
given the facts here, the interests served by 2511(1)(c) justify its restrictions on
speech. Pp. 1214.

(e) The first interest identified by the Governmentremoving an incentive for

parties to intercept private conversationsdoes not justify applying 2511(1)(c) to
an otherwise innocent disclosure of public information. The normal method of
deterring unlawful conduct is to punish the person engaging in it. It would be
remarkable to hold that speech by a law-abiding possessor of information can be
suppressed in order to deter conduct by a non-law-abiding third party. In virtually all
2511(1)(a), (c), or (d) violations, the interceptors identity has been known. There
is no evidence that Congress thought that the prohibition against disclosures would
deter illegal interceptions, and no evidence to support the assumption that the
prohibition reduces the number of such interceptions. Pp. 1416.

(f) The Governments second interestminimizing the harm to persons whose

conversations have been illegally interceptedis considerably stronger. Privacy of
communication is an important interest. However, in this suit, privacy concerns give
way when balanced against the interest in publishing matters of public importance.
One of the costs associated with participation in public affairs is an attendant loss of
privacy. The profound national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide open supported this Courts holding
in New York Times Co. v. Sullivan, 376 U.S. 254, that neither factual error nor
defamatory content, nor a combination of the two, sufficed to remove the First
Amendment shield from criticism of official conduct. Parallel reasoning requires the
conclusion that a strangers illegal conduct does not suffice to remove the First
Amendment shield from speech about a matter of public concern. Pp. 1620.

200 F.3d 109, affirmed.