American Constitutionalism in Historical Perspective (packet)

No punitive damages: unless have Sullivan mens rea.

What about the nature of the issue- public/private (Brennan’s view in Rosenbloom)? Prob: too content based, what counts as public and private has evolved over time.

Right of Reply: not adopted in US, but in Europe paper must put in a roughly corresponding area of publicity retraction if defamation is proven. Consistent with free speech to have more speech.

Public officials/Public figures: get less protection than private citizens.

1. 
   Curtis Publishing v. Butts; AP v. Walker: expand public official exception to include public figures. Have an impact on public life, easy access to the media. Later narrow this further to voluntary public figures.
   
2. 
   Gertz v. Robert Welch, 1974: narrow public figure doctrine to protect private persons vs. the media. Requires (1) at least negligence, (2) no presumed damages, (3) no punitive damages except if you meet the Sullivan mens rea. Clearly striking a balance, protecting all of us as private people. Justification offered is media access and voluntary exposure.
   
3. 
   Firestone
   
4. 
   Rosenbloom: some justices tried to go an issue-centered way; but this is not the view that prevailed.
   
5. 
   Dun & Bradstreet v. Greenmoss, 1985: allow common law defamation brought by private person, against a private person using negligence standard. Purely private matters not subject to First Amend protection.
   
6. 
   Tornillo you can’t make a newspaper publish something it doesn’t want to.
   

1. 
   Non-Defamation Torts: Hustler v. Falwell, 1988: Strikes down b/c as long as not meant by the speaker or understood by audience to be true then must be allowed as part of political satirical tradition
   
2. 
   Privacy: have a const rt to privacy which is in tension with free speech. Under libel the gravamen is false facts; under privacy the facts are usually true which leads to more free speech protection.
   
   1. 
      Brandeis, The Right to Privacy, 1890: people have inviolable right of moral sovereignty over their lives. Have right to informational privacy, predicting electronic surveillance. At the heart of human rights, the right to control your public and private life.
      
   2.