Philadelphia Newspapers Inc. v. Hepps

PETITIONER: Philadelphia Newspapers Inc.
LOCATION: Network Video

DOCKET NO.: 84-1491
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: Supreme Court of Pennsylvania

CITATION: 475 US 767 (1986)
ARGUED: Dec 03, 1985
DECIDED: Apr 21, 1986

David H. Marion - Argued the cause for the appellants
Ronald H. Surkin - Argued the cause for the appellees

Facts of the case

In a series of articles, the Philadelphia Inquirer accused Hepps of links to organized crime and of capitalizing on that connection to influence the state legislature. The Pennsylvania Supreme Court favored Hepps and held that the newspaper was obligated to prove its accusations true.


Did the state supreme court's decision violate the First Amendment?

Media for Philadelphia Newspapers Inc. v. Hepps

Audio Transcription for Oral Argument - December 03, 1985 in Philadelphia Newspapers Inc. v. Hepps

Warren E. Burger:

Mr. Marion, I think you may proceed whenever you are ready.

David H. Marion:

Mr. Chief Justice, and may it please the Court:

Good morning.

Unlike the preceding case, this is a private individual's libel case, and also unlike the preceding case, there has been a full trial and a jury verdict in the court below.

When I say that this is a private individual's libel case, I hasten to add that it also involves matters of public concern.

The jury verdict was for the defendants below.

It was reversed by the Pennsylvania Supreme Court because the trial judge, in attempting to apply this Court's judgment in Gertz v. Welch instructed the jury that the burden of proving falsity was on the plaintiff, and the plaintiff had to prove both falsity and negligence in failing to discover the truth.

The Supreme Court of Pennsylvania reversed, applying instead a Pennsylvania statutory provision which the court below held codified common law, which puts on the defendant the burden to prove truth It is our position, if it please the Court, that the Pennsylvania statutory scheme constitutes a conscious determination by the state to err on the side of punishing truthful speech on public matters, or speech that may be true, rather than allowing speech that may be false but was not proven false to go unpunished.

In other words, we have to look at what the burden of proof does in a case.

The burden of proof decides the close case, and most libel cases that are fully litigated, as was this one, are the close cases on issues of falsity.

The burden of proof says if you have a case where the evidence of truth or falsity is exactly equal, or if you have a case where there is no evidence on either side on the issue of truth or falsity, if the defendant has the burden, the speech of the defendant will be punished even though it may very well have been true and has not been proven false.

It is this rule which we contend turns First Amendment law upside down.

Now, why do I say it turns First Amendment law upside down?

Simply because in Pennsylvania the rule is instead of protecting some false speech in order to be sure we are protecting true speech that counts, that matters, Pennsylvania is willing to punish some true speech that matters in order to punish some false speech.

In Garrison and Sullivan, this Court clearly held 21 years ago that truthful discussion of public affairs cannot be the subject of criminal or civil sanctions.

And the courts... this Court since those holdings have been wrestling with the problem that the protection of truthful speech about public affairs is so important that we must also protect some false speech.

That's why we have the rule for a public figure that even if the speech was false, we protect it unless it was knowingly false or recklessly false.

And Gertz says for a private figure case, even if the speech was false, we protect that speech unless it was at least negligently false.

Sandra Day O'Connor:

Mr. Marion, here we have a private figure case, and as I understand it, the defamatory statement was couched in very broad, general terms, something to the effect that federal investigators have found connections between Thrifty and underworld figures, something about that broad.

David H. Marion:


Sandra Day O'Connor:

Now, Pennsylvania has a shield law, as I understand it, so that the plaintiff, the private figure plaintiff here would be unable to in the course of deposition and discovery find out the source of those broad allegations.

That makes it a pretty tough proposition in a case like this, doesn't it?

David H. Marion:

--Well, I must respectfully take issue with Your Honor on both premises of your question.

In the first place, this was not a generalized statement that was libelous.

The statements were very specific.

The defendant said that the plaintiff companies had used organized crime influences to approach a named state senator and get him to influence the legislature and the governor.

Sandra Day O'Connor:

Well, what if the allegation were as broad as I read to you, and in a jurisdiction where there is a shield law?

Now, how is the plaintiff going to disprove?

David H. Marion:

Very simple, Your Honor.

Even assuming that the allegation was broad, let's say the allegation was so broad as simply to say the plaintiff had connections with organized crime, and we're not gong to tell you how we know, it seems to me, Your Honor, that in that case, just as in this case, in the court below, the plaintiff always knows whether or not there are connections with organized crime.