Living with Gertz: A Practical Look at Constitutional Libel Standards

Abstract

IN a series of libel cases that includes New York Times Co. v. Sullivan' and Gertz v. Robert Welch, Inc.,2 the United States Supreme Court has emphasized the importance of the distinction between recklessness and negligence. As a result, the courts now confront a practical problem: the incorporation of the new constitutional standards into state tort law. For public officials and other public figures, the Supreme Court cases require proof of recklessness before a newspaper can be held liable for a false story.3 All classes of plaintiffs must demonstrate recklessness to recover punitive damages.4 The Court, however, has not decided the standard of fault that the plaintiff who is not a public figure or public official must prove,' except to say that state courts cannot apply a standard of strict liability. Although the difference between negligence and recklessness forms a neat doctrinal line, recent cases suggest that the distinction may be of limited practical significance in the common case in which the defendant's credibility is a central issue. A recent diversity case, Mills v. Kingsport Times-News,7 illustrates the practical problems of implementing the post-Gertz standards in a typical libel context.8 Levita Mills was charged with the murder of her husband. A preliminary hearing was held in the