Rosenblatt v. Baer
Decided on Feb. 21, 1966; 383 US 75

County recreation area supervisor sues newspaper columnist for libel


A. Issues Discussed: First Amendment (defamation), Fourteenth Amendment, Libel, Defamation

B. Legal Question Presented:

Was respondent defamed by a newspaper column that criticized his management as Supervisor?


A. Background:

Respondent Baer was the former Supervisor of Belknap County Recreation Area, a facility owned and operated by the county, and primarily used as a ski resort and for other activities. 

In 1960, new management took over the recreation area. Rosenblatt commented in his column, "What happened to all the money last year? and every other year? What magic has Dana Beane  [Chairman of the new commission] and rest of commission, and Mr. Warner [respondent's replacement as Supervisor] wrought to make such tremendous difference in net cash results?" Respondent brought a civil libel action against petitioner, alleging that the column contained defamatory falsehoods regarding his performance when he was Supervisor of the recreation area.  Respondent offered extrinsic proof that there was a defamatory meaning to the column, arguing that the community read the column as imputing mismanagement of the recreation area to respondent's tenure as Supervisor.  

A jury in New Hampshire Superior Court awarded respondent damages.

While this case was awaiting appeal to the New Hampshire Supreme Court, the US Supreme Court decided New York Times Co. v. Sullivan, which held that a public official may not be awarded damages for defamation relating to his official coduct unless the official proves actual malice.  This means that the official has the burden to prove that the falsehood was published with knowledge of its falsity or with reckless disregard of whether it is true or false. 

The New Hampshire Supreme Court affirmed respondent's damages award, finding that New York Times did not bar the award.  The Supreme Court granted certiorari.  The parties were requested to brief and argue an additional question, as to whether respondent was a "public official" under New York Times.

B. Counsel of Record:
Opposing Side
Arthur H. Nighswander argued the cause for petitioner. With him on the brief were Hugh H. Bownes and Conrad E. Snow. Stanley M. Brown argued the cause and filed a brief for respondent.
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Osmond K. Fraenkel, Edward J. Ennis and Melvin L. Wulf filed a brief for the American Civil Liberties Union, as amicus curiae, urging reversal. No amici curiae briefs were filed on behalf of Respondent.

"The thrust of New York Times is that when interests in public discussion are particularly strong, as they were in that case, the Constitution limits the protections afforded by the law of defamation.  Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees, both elements we identified in New York Times are present and the New York Times malice standards apply.

As respondent framed his case, he may have held such a position.  Since New York Times had not been decided when his case went to trial, his presentation was not shaped to the 'public official' issue.  He did, however, seek to show that the article referred particularly to him. His theory was that his role in the management of the Area was so prominent and important that the public regarded him as the man responsible for its operations, chargeable with its failures and to be credited with its successes. Thus, to prove the article referred to him, he showed the importance of his role; the same showing, at the least, raises a substantial argument that he was a 'public official.'

The record here, however, leaves open the possibility that respondent could have adduced proofs to bring his claim outside the New York Times rule.  Moreover, even if the claim falls within New York Times, the record suggests respondent may be able to present a jury question of malice as there defined. Because the trial here was had before New York Times, we have concluded that we should not foreclose him from attempting retrial of his action. We remark only that, as is the case with questions of privilege generally, it is for the trial judge in the first instance to determine whether the proofs show respondent to be a 'public official.'

The judgment is reversed and the case remanded to the New Hampshire Supreme Court for further proceedings not inconsistent with this opinion."

Held: The judgment of the New Hampshire Supreme Court is reversed and remanded for reconsideration of the issues of whether the Respondent was a public official and whether there was malice.

Justice Vote: 8 Pro vs. 1 Con
  • Brennan, W. Pro (Wrote majority opinion)
  • Warren, E. Pro (Joined majority opinion)
  • Stewart, P. Pro (Wrote concurring opinion)
  • White, B. Pro (Joined majority opinion)
  • Clark, T. Pro (Joined majority opinion)
  • Black, H. Pro (Wrote opinion concurring in part and dissenting in part)
  • Douglas, W. Pro (Wrote concurring opinion, joined Black's opinion)
  • Harlan, J. Pro (Wrote opinion concurring in part and dissenting in part)
  • Fortas, A. Con (Wrote dissenting opinion)

The ACLU urged reversal; the US Supreme Court reversed the decision of the New Hampshire Supreme Court in a 8-1 vote, giving the ACLU an apparent win