Philadelphia Newspapers, Inc. v. Hepps
Decided on Apr. 21, 1986; 475 US 767


A. Issues Discussed: Free Speech

B. Legal Question Presented:

Can a private-figure plaintiff recover damages from a newspaper that publishes speech of public concern without showing that the statements at issue are false?


A. Background:

"Maurice S. Hepps is the principal stockholder of General Programming, Inc. (GPI), a corporation that franchises a chain of stores - known at the relevant time as 'Thrifty' stores - selling beer, soft drinks, and snacks. Mr. Hepps, GPI, and a number of its franchisees are the appellees here. Appellant Philadelphia Newspapers, Inc., owns the Philadelphia Inquirer (Inquirer). The Inquirer published a series of articles, authored by appellants William Ecenbarger and William Lambert, containing the statements at issue here. The general theme of the five articles, which appeared in the Inquirer between May 1975 and May 1976, was that appellees had links to organized crime and used some of those links to influence the State's governmental processes, both legislative and administrative...

Appellees brought suit for defamation against appellants in a Pennsylvania state court. Consistent with Gertz, Pennsylvania requires a private figure who brings a suit for defamation to bear the burden of proving negligence or malice by the defendant in publishing the statements at issue. As to falsity, Pennsylvania follows the common law's presumption that an individual's reputation is a good one. Statements defaming that person are therefore presumptively false, although a publisher who bears the burden of proving the truth of the statements has an absolute defense.

The parties first raised the issue of burden of proof as to falsity before trial, but the trial court reserved its ruling on the matter. Appellee Hepps testified at length that the statements at issue were false and he extensively cross-examined the author of the stories as to the veracity of the statements at issue. After all the evidence had been presented by both sides, the trial court concluded that Pennsylvania's statute giving the defendant the burden of proving the truth of the statements violated the Federal Constitution. The trial court therefore instructed the jury that the plaintiffs bore the burden of proving falsity.

...The jury ruled for appellants and therefore awarded no damages to appellees.

Pursuant to Pennsylvania statute the appellees here brought an appeal directly to the Pennsylvania Supreme Court. That court viewed Gertz as simply requiring the plaintiff to show fault in actions for defamation. It concluded that a showing of fault did not require a showing of falsity, held that to place the burden of showing truth on the defendant did not unconstitutionally inhibit free debate, and remanded the case for a new trial."

On appeal the US Supreme Court reversed and remanded the judgment of the Supreme Court of Pennsylvania.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Brief of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by John G. Koeltl, James C. Goodale, Burt Neuborne, Jack D. Novick, Stefan Presser, Bruce W. Sanford, W. Terry Maguire, R. Bruce Rich, Robert D. Sack, and Alice Neff Lucan; for the American Federation of Labor and Congress of Industrial Organizations by David M. Silberman and Lawrence Gold; for Capital Cities Communications, Inc., et al. by Bernard G. Segal, Jerome J. Shestack, Carl A. Solano, Elihu A. Greenhouse, and Lawrence Gunnels; and for Print and Broadcast Media et al. by E. Barrett Prettyman, Jr., Dan Paul, Franklin G. Burt, Steven M. Kamp, John H. McElhaney, Richard M. Schmidt, Jr., Peter G. Banta, Stuart F. Pierson, Neil L. Shapiro, Wilford W. Kirton, Jr., David M. Olive, Theodore Sherbow, Robert Haydock, Jr., Peter Michael Meloy, W. Joel Blass, William w. Ogden, Eric D. Lanphere, Michael A. Gross, Conrad M. Shumadine, William A. Niese, Norton L. Armour, H. Hugh Stevens, Jr., Thomas T. Cobb, Michael Minnis, James L. Koley, J. Laurent Scharff, Alexander Wellford, Donald B. Holbrook, Edward P. Davis, Jr., P. Cameron DeVore, Gregg D. Thomas, Jack M. Weiss, Rutledge C. Clement, Jr., and George K. Rahdert.

David H. Marion argued the cause for appellants. With him on the briefs were Samuel E. Klein and Kerry L. Adams.

Ronald H. Surkin argued the cause for appellees. With him on the brief was Edwin P. Rome.


"Our opinions to date have chiefly treated the necessary showings of fault rather than of falsity. Nonetheless, as one might expect given the language of the Court in New York Times a public-figure plaintiff must show the falsity of the statements at issue in order to prevail in a suit for defamation.

Here, as in Gertz, the plaintiff is a private figure and the newspaper articles are of public concern. In Gertz, as in New York Times, the common-law rule was superseded by a constitutional rule. We believe that the common law's rule on falsity - that the defendant must bear the burden of proving truth - must similarly fall here to a constitutional requirement that the plaintiff bear the burden of showing falsity, as well as fault, before recovering damages.

There will always be instances when the factfinding process will be unable to resolve conclusively whether the speech is true or false; it is in those cases that the burden of proof is dispositive. Under a rule forcing the plaintiff to bear the burden of showing falsity, there will be some cases in which plaintiffs cannot meet their burden despite the fact that the speech is in fact false. The plaintiff's suit will fail despite the fact that, in some abstract sense, the suit is meritorious. Similarly, under an alternative rule placing the burden of showing truth on defendants, there would be some cases in which defendants could not bear their burden despite the fact that the speech is in fact true. Those suits would succeed despite the fact that, in some abstract sense, those suits are unmeritorious. Under either rule, then, the outcome of the suit will sometimes be at variance with the outcome that we would desire if all speech were either demonstrably true or demonstrably false.

This dilemma stems from the fact that the allocation of the burden of proof will determine liability for some speech that is true and some that is false, but all of such speech is unknowably true or false. Because the burden of proof is the deciding factor only when the evidence is ambiguous, we cannot know how much of the speech affected by the allocation of the burden of proof is true and how much is false. In a case presenting a configuration of speech and plaintiff like the one we face here, and where the scales are in such an uncertain balance, we believe that the Constitution requires us to tip them in favor of protecting true speech. To ensure that true speech on matters of public concern is not deterred we hold that the common-law presumption that defamatory speech is false cannot stand when a plaintiff seeks damages against a media defendant for speech of public concern."

The US Supreme Court reversed and remanded the judgment of the Supreme Court of Pennsylvania.

Justice Vote: 5 Pro vs. 4 Con

  • O'Connor, S.D. Pro (Wrote majority opinion)
  • Brennan, W. Pro (Wrote concurring opinion)
  • Marshall, T. Pro (Joined majority opinion)
  • Blackmun, H. Pro (Joined majority opinion)
  • Powell, L. Pro (Joined majority opinion)
  • Stevens, J.P. Con (Wrote dissenting opinion)
  • Burger, W. Con (Joined dissenting opinion)
  • White, B. Con (Joined dissenting opinion)
  • Rehnquist, W. Con (Joined dissenting opinion)

The ACLU, as amicus curiae, urged reversal of the Supreme Court of Pennsylvania's judgment; the US Supreme Court reversed and remanded in a 5-4 vote, giving the ACLU an apparent win.