DUN & BRADSTREET, INC. v. GREENMOSS BUILDERS, INC. 472 U.S. 749 (1985)

The plurality opinion in this case may portend significant changes in the constitutional doctrine governing libel and the first amendment. Dun & Bradstreet, a credit reporting business, falsely and negligently reported to five subscribers that Greenmoss had filed a petition in bankruptcy, and also negligently misrepresented Greenmoss's assets and liabilities. In an action for defamation, Greenmoss recovered substantial compensatory and punitive damages. Vermont's highest court held that the principle of gertz v. robert welch, inc. (1974) did not apply in actions against defendants who were not part of the press or broadcast media. A fragmented Supreme Court avoided this question but affirmed, 5–4.

Justice lewis f. powell, for a three-Justice plurality, concluded that Gertz—which had held, among other things, that punitive damages could not be awarded against a magazine without proof of knowing or reckless disregard of the falsity of the statement—was applicable only to "expression on a matter of public concern." Justice Powell spoke only generally about the content of the "matter of public concern" standard, but hinted that "media" speech might qualify automatically for protection under Gertz. Dun & Bradstreet's report, however, involved "matters of purely private concern." Although such speech is "not wholly unprotected" by the first amendment, he concluded, it can be the basis of a punitive damages award even absent a showing of reckless disregard of the truth. Chief Justice warren e. burger and Justice byron r. white, in separate concurring opinions, expressed willingness to abandon Gertz altogether, but meanwhile agreed with this radical surgery on Gertz.

In a footnote pregnant with meaning, Justice Powell remarked that some kinds of constitutionally protected speech are entitled only to "reduced protection"—commercial speech, for example. But he did not place Dun & Bradstreet's report in the latter category, and thus raised speculation that the majority may be prepared to adopt a "sliding scale" for the freedom of speech, with varying (and, as yet, unspecified) degrees of constitutional protection for each kind of speech, depending on the Justices' determinations about the value of the speech and the context in which it is uttered.

Justice william j. brennan, for the four dissenters, agreed that credit reports were not central to First Amendment values, but argued nonetheless that the Gertz requirements should apply to this case: credit and bankruptcy information was "of public concern." Justice Brennan noted with satisfaction that six Justices (the dissenters and authors of the concurring opinions) had rejected a distinction between the First Amendment rights of "media defendants" and of others sued for defamation.

Kenneth L. Karst
(1986)