constitutional protection accorded to commercial speech
is less than is provided to other constitutionally
guaranteed expression. The Court held that although the
First Amendment protects commercial speech from
unwarranted governmental regulation plaintiff’s com-
mercial speech may be regulated or banned, as it is here,
if it proposes an illegal transaction. See also Barry v. Arrow
Pontiac, Inc., 193 N.J. Super. 613 (App. Div. 1984) (the
constitutional right of commercial speech does not
include the right to mislead the public ... commercial
speech is accorded less constitutional protection that
“pure” non-commercial speech); Village of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489
(1982) (upholding the constitutionality of an ordinance
requiring businesses to obtain licenses before selling any
item “designed or marketed for use with illegal cannabis
or drugs”); Virginia State Board of Pharmacy v. Virginia
Citizens Consumer Council, 425 U.S. 748 (1976).
I. Defamation
New York Times v. Sullivan, 376 U.S. 254 (1964).
Where plaintiff is a public official, he may only win a
defamation suit for a statement relating to his official
conduct if he can prove that the statement was made
“with knowledge that it was false” or with “reckless
disregard” of whether it was true or false. These two
mental states are usually collectively referred to as the
“actual malice” requirement.
Associated Press v. Walker, 388 U.S. 130 (1967). The
rule in Sullivan, that plaintiff can only recover for
defamation if he shows intentional falsity or recklessness
about the truth, applies not only to public “officials” but
also to public “figures.” Thus, a well known college
football coach, and a prominent retired Army general,
were public figures who had to show that the defendant
acted with actual malice.
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). If
the plaintiff is a “private” (rather than a “public”) figure,
he does not have to meet the Sullivan “actual malice” rule.
On the other hand, the First Amendment requires that he
show at least negligence. In other words, the states may
not impose strict liability for defamation, even for a
private-figure plaintiff. Also, a private-figure plaintiff
who shows only negligence cannot recover punitive
damages - he must show actual malice to get punitive
damages.
In Hustler Magazine v. Falwell, 485 U.S. 46 (1981),
a public figure sued publishers of advertisement parody
for libel, invasion of privacy, and intentional infliction of
emotional distress. Held: the Sullivan rule applies to
actions for intentional infliction of emotional distress as
well as ones for defamation. Thus, a public-figure
plaintiff like Jerry Falwell cannot recover for any
intentional infliction of emotional distress unless he
shows that the defendant acted with actual malice.In Philadelphia Newspapers, Inc. v. Hepps, 475 U.S.
767 (1986), a private figure brought libel action against
newspapers and its reporters based on series of articles
claiming that he had links to organized crime. The
Supreme Court held that a private figure plaintiff alleging
defamation had burden of proving falsity of media
defendant’s speech on matter of public concern.In Harte-Hanks Communications, Inc. v. Connaughton,
491 U.S. 657 (1989), a candidate for judicial office
brought libel action against newspaper. The Supreme
Court held that: (1) public figure libel cases are governed
by the Sullivan standard; (2) newspaper’s motives and
deviation from standards will not alone support a finding
of actual malice; (3) newspaper’s failure to investigate will
not support a finding of actual malice, but purposeful
avoidance of truth may; and (4) evidence sustained
finding of actual malice.In Fortenbaugh v. New Jersey Press, Inc., 317 N.J.
Super. 439 (App. Div. 1999), a university professor sued
newspaper, and author of opinion column published by
newspaper, for defamation, based on statement in
column that he had been accused of masturbating during
faculty meeting. The Appellate Division held that: (1) to
establish truth as a defense, newspaper and author would
be required to show not simply that it was true that
allegation was made, but that underlying conduct was
true; and (2) whether professor was public official or
public figure, for First Amendment purposes, was issue
for trial court on remand.In Milkovich v. Lorain Journal Co., 497 U.S. 1
(1990), a former high school wrestling coach brought
defamation action against newspaper and reporter. The
United States Supreme Court held that: (1) separate
constitutional privilege for “opinion” was not required in
addition to established safeguards regarding defamation
to ensure freedom of expression guaranteed by First
Amendment; and (2) reasonable fact finder could
conclude that statements in reporter’s column implied
assertion that coach perjured himself in judicial
proceeding; and (3) the issue was sufficiently factual to be
susceptible of being proved true or false and, thus, there
was potential for a defamation recovery.