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This narrow (5-4) Supreme Court decision on libel affirmed immunity from prosecution for statements made by officers of the executive branch.

Employees thought press release tied them to a controversial policy

Barr v. Matteo, 360 U.S. 564 (1959), revolved around the objections of former employees of the Office of Rent Stabilization to a press release issued by the acting director of the office in response to congressional criticism. The press release tied the employees to the policy being criticized and indicated that they would be suspended. The employees believed that the statement made was motivated by malice and libelous.

Court said the press realease was “privileged”

Reversing a judgment by a federal appeals court, the Court ruled that the press release was privileged. In a decision written by Justice John Marshall Harlan II, the Court observed that “the law of privilege as a defense by officers of government to civil damage suits for defamation and kindred torts has in large part been of judicial making, although the Constitution itself gives an absolute privilege to members of both Houses of Congress in respect to any speech, debate, vote, report, or action done in session.”

In his opinion, Harlan specifically cited Spalding v. Vilas (1896), in which the executive officer seeking immunity was the U.S. postmaster general. Harlan also acknowledged the principle put forth by Judge Learned Hand that such immunity was essential if government officials were to carry out their duties without fear and without the burdens that baseless suits might bring.

In Harlan’s words: “The privilege is not a badge or emolument of exalted office, but an expression of a policy designed to aid in the effective functioning of government.” Harlan observed that the petitioner was “the Acting Director of an important agency of government” who was “clothed by redelegation with ‘all powers, duties, and functions conferred on the President.’ ” He further classified the issuance of a press release as “standard agency practice.”

In his concurring opinion, Justice Hugo L. Black noted that any restraint on the speech of government officials would have to be placed there by Congress itself, but consistent with the First Amendment.

Dissenters thought privilege should be clarified

In their dissent, Chief Justice Earl Warren and Justice William O. Douglas focused on the majority’s failure to clarify the extent of the privilege it was granting. They also argued that the majority had failed to give real weight to the interests of the persons who thought they had been defamed. Individuals who were libeled in public statements would find it difficult “to obtain the same hearing that was available for the original press release.”

In separate dissents, Justice William J. Brennan Jr. asserted that only a qualified privilege against “honest mistakes” should be extended but not a privilege that would extend to actual malice, and Justice Potter Stewart based his dissent on his view that the press release was not an “action in the line of duty.”

In a companion case, Howard v. Lyons (1959), with a similar division of the Court, the justices ruled that a naval officer was also privileged against civil libel for a memorandum about civilian employees that he sent to his superiors.

John Vile is professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2009.

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