The Constitutional Law of Defamation—Recent Developments and Suggested State Court Responses

Prior to the 1964 decision in New York Times Co. v. Sullivan, defamation law in the United States was controlled by common law principles developed in the state courts. In New York Times the United States Supreme Court staked out an area of first amendment privilege, which limited the states' power to permit recovery in defamation actions brought by public officials. Later extensions of this constitutional privilege made it appear for a time that constitutional requirements would produce a unified nation-wide body of defamation law to replace the various common law rules followed in the fifty states. In view of the resurgence of state common law in this area, state courts handling defamation actions are presented with two distinct challenges. First, the courts must determine whether the case under consideration requires application of the New York Times standards. Such a determination requires an assessment of the facts alleged in light of the limited guidelines which have developed since 1964. One purpose of this Comment is to make this evaluation easier by illuminating the extent of the Supreme Court's recent limitations on the applicability of the constitutional standards in the defamation area. A state court which determines that the New York Times doctrine need not be applied in a particular case faces a second task—to clearly articulate the state law upon which a decision is based. In many cases the courts will be developing new law in an attempt to protect competing public and private interests. In addition, the state courts have an obligation to announce clearly the principles on which their decisions are based, so as to minimize potential confusion between the emerging state law requirements and existing federal constitutional privileges. A second object of this Comment is to suggest state court responses which achieve an appropriate balance between the individual interest in reputation and the public interest in freedom of expression.