383 U.S. 75 (1966)
In the 1950s a public controversy developed over the operation of the Belknap County Recreation Area, a ski resort and recreational facility owned and operated by Belknap County, New Hampshire.1 Respondent Baer was employed by the three elected Belknap County Commissioners as Supervisor of the Area and was directly responsible for its management and financial affairs.2
In 1959 the New Hampshire Legislature enacted a statute transferring control of the Recreation Area to a new five-member commission.3 At least in part to give the new regime a fresh start, Baer was discharged.4 Six months later, in January 1960 during the first ski season under the new commission, petitioner Rosenblatt, an unpaid columnist for the Laconia Evening Citizen, published a column that compared cash income under the prior and current administrations and asked what had happened to all the money in prior years.5
Baer filed a civil libel action in New Hampshire Superior Court alleging that the column contained defamatory falsehoods concerning his performance.6 A jury awarded him damages.7 The New Hampshire Supreme Court affirmed the judgment in an opinion reported at 106 N. H. 26, 203 A. 2d 773.8
Between the trial and the decision of the appeal, the United States Supreme Court decided New York Times Co. v. Sullivan.9 The Supreme Court granted certiorari and directed the parties to address whether Baer was a public official under that decision.10
Whether the First Amendment permits a libel recovery by a member of a small group of former government employees on the basis of an impersonal column discussing governmental operations without evidence that the statements specifically referred to the plaintiff?11
Under New York Times Co. v. Sullivan, in the absence of sufficient evidence that the attack focused on the plaintiff, an otherwise impersonal attack on governmental operations cannot be utilized to establish a libel of those administering the operations.12 There must be evidence showing that the attack was read as specifically directed at the plaintiff.13
No. The column published by Rosenblatt asked what happened to all the money last year without naming Baer or the prior commissioners.14 The statement on its face is only an impersonal discussion of government activity.15 The trial judge instructed the jury that an imputation of impropriety to one or some of a small group that casts suspicion upon all is actionable.16 This permitted recovery merely on the basis of Baer's relationship to the government agency.17
This theory is constitutionally insufficient under the New York Times rule because the jury was permitted to infer both defamatory content and reference from the challenged statement itself without evidence of specific direction at the plaintiff.18
The First Amendment does not permit a libel recovery on that basis without evidence of specific reference to the plaintiff.19
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Justice Harlan concurred in the judgment but dissented from the Court's treatment of Part II of the trial court's charge.20 He maintained that the instruction reflected conventional tort law allowing recovery when a defamatory statement is directed at a small group that includes the plaintiff. The court merely instructed the jury that if it interpreted the article as an accusation of misconduct the jury could find for the plaintiff if either he alone was found to be libeled, or he was one of a small group of persons so libeled. This is conventional tort law.21
This differed fundamentally from New York Times, where the libel targeted the police force generally without identifying a small responsible group.22 Harlan emphasized that the rule for small groups has been applied successfully in state cases and is eminently sound.23 In his view, the trial judge was not allowing transformation of impersonal criticism into personal libel but applying traditional doctrine that more than one person can be libeled by the same statement.24
Therefore, the charge was not constitutionally impermissible.25
Whether a former supervisor of a county recreation area who had substantial responsibility for its financial management and operations qualifies as a public official under the rule of New York Times Co. v. Sullivan?26
The public official designation applies at least to those among the hierarchy of government employees who have or appear to the public to have substantial responsibility for or control over the conduct of governmental affairs.27 Criticism of those responsible for government operations must be free lest criticism of government itself be penalized.28
Yes. Baer was employed by the three elected Belknap County Commissioners as Supervisor of the Area.29 He was directly responsible for its management and financial affairs.30 His role was so prominent and important that the public regarded him as the man responsible for its operations.31 He was chargeable with its failures and to be credited with its successes.32 Under the New York Times standard the former supervisor therefore qualifies as a public official.33
Baer qualifies as a public official under the New York Times rule.34
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Justice Black concurred in the reversal but dissented from leaving the case open for a new trial.35 He argued that the publication discussing the way an agent of government does his governmental job is the very kind that the First Amendment was adopted primarily to protect.36 Unconditional freedom to criticize the way such public functions are performed is necessarily included in the guarantees of the First Amendment.37
The right to criticize a public agent cannot depend upon whether that agent is labeled a public official.38 Nor should the right to criticize depend upon how high a position in government a public agent may occupy.39 To be faithful to the First Amendment's guarantees, this Court should free private critics of public agents from fear of libel judgments for money.40
Justice Douglas joined Part II of the Court's opinion as well as Justice Black's separate opinion.41 He argued that if free discussion of public issues is the guide there is no way to draw lines that exclude the night watchman, the file clerk, the typist, or anyone on the public payroll.42 The question is the extent to which the Due Process Clause of the Fourteenth Amendment has displaced the libel laws of the States when public issues are involved.43
If freedom of speech is the guide, why is it restricted to speech addressed to the larger public matters and not applicable to speech at the lower levels of science, the humanities, the professions, agriculture, and the like?44
Justice Stewart joined the Court's opinion and judgment.45 He argued that the Constitution does not tolerate actions for libel on government, so state defamation laws cannot be converted into laws against seditious libel.46 However, the First Amendment is not the only guidepost in this area because society has a pervasive and strong interest in preventing and redressing attacks upon reputation.47
The right of a man to the protection of his own reputation from unjustified invasion reflects the essential dignity and worth of every human being.48 The protection of private personality is left primarily to the States under the Ninth and Tenth Amendments.49 Stewart maintained that the New York Times rule should not be applied except where a State's law of defamation has been unconstitutionally converted into a law of seditious libel.50 The First and Fourteenth Amendments have not stripped private citizens of all means of redress for injuries inflicted upon them by careless liars.51
Whether state-law definitions of public official control the determination of who must prove actual malice in a defamation action arising from discussion of governmental affairs?52
States have developed definitions of public official for local administrative purposes.53 These definitions do not serve the purposes of a national constitutional protection.54 The standards that set the scope of New York Times principles cannot be such that the constitutional limits of free expression in the Nation would vary with state lines.55
No. The determination whether a plaintiff is a public official within the meaning of New York Times is a matter of federal constitutional law.56 It is drawn from the protections afforded free expression.57 It is not governed by state-law standards that might vary with state lines.58 The facts present the question whether the public official designation applies to Baer.59 That question must be resolved under uniform national standards.60
State-law definitions do not control the determination of who must prove actual malice.61
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Justice Fortas would vacate the writ as improvidently granted.62 He argued that the trial below occurred before New York Times and the factual record in this case was not shaped in light of the principles announced in that decision.63 He emphasized that it is important to observe the practice of relating our decisions to factual records.64
They serve to guide our judgment and to help us measure theory against the sharp outlines of reality.65 Especially where our decision furnishes a necessarily Procrustean bed for state law, we should insist upon a relevant factual record.66 A subsequent trial may conceivably help respondent, but it will be too late to be of assistance to us.67