Respondent Baer managed the financial affairs of a ski recreation center owned and operated by Belknap County, New Hampshire. Petitioner Rosenblatt, an unpaid columnist for a local newspaper, published a column criticizing the past management of the center. Baer thought the column implied dishonest manipulations in his handling of the finances for the center. Charging this he sued Rosenblatt for libel and obtained a verdict for $31,500 which the Supreme Court of New Hampshire affirmed. This Court, relying on New York Times Co. v. Sullivan, 376 U. S. 254, and Garrison v. Louisiana, 379 U. S. 64, reverses that judgment and remands to the state court under conditions expressed in its opinion that will allow a new trial and another judgment against Rosenblatt. I concur in the reversal but dissent from leaving the case open for a new trial believing that for reasons stated in the concurring opinions of Mr. Justice Douglas and myself in the New York Times and Garrison cases a libel judgment against Rosenblatt is forbidden by the First Amendment which the Fourteenth made applicable to the States.
I think the publication here, discussing the way an agent of government does his governmental job, is the very kind that the First Amendment was adopted primarily to protect. The article here sued on as libelous discusses the use of the public’s money to take care of the public’s business by a paid agent of the public. Unconditional freedom to criticize the way such public functions are performed is in my judgment necessarily included in the guarantees of the First Amendment. *95And the right to criticize a public agent engaged in public activities cannot safely, and should not, depend upon whether or not that agent is arbitrarily labeled a “public official.” Nor should the right to criticize depend upon how high a position in government a public agent may occupy. Indeed a large percentage of public moneys expended is distributed by local agents handling local funds as the respondent in this case did. To be faithful to the First Amendment’s guarantees, this Court should free private critics of public agents from fear of libel judgments for money just as it has freed critics from fear of pains and penalties inflicted by government.
This case illustrates I think what a short and inadequate step this Court took in the New York Times case to guard free press and free speech against the grave dangers to the press and the public created by libel actions. Half-million-dollar judgments for libel damages like those awarded against the New York Times will not be stopped by requirements that “malice” be found, however that term is defined. Such a requirement is little protection against high emotions and deep prejudices which frequently pervade local communities where libel suits are tried. And this Court cannot and should not limit its protection against such press-destroying judgments by reviewing the evidence, findings, and court rulings only on a case-by-case basis. The only sure way to protect speech and press against these threats is to recognize that libel laws are abridgments of speech and press and therefore are barred in both federal and state courts by the First and Fourteenth Amendments. I repeat what I said in the New York Times case that “An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment.”
Finally, since this case is to be sent back and a new trial may follow, I add one further thought. The Court *96indicates that in a retrial it will be for the trial judge “in the first instance” to decide whether respondent is a “public official.” Statements like this have a way of growing and I fear that the words “in the first, instance” will soon be forgotten. When that happens the rule will be that the Federal Constitution forbids States to let juries decide essentially jury questions in libel cases. After a long fight in England Fox’s Libel Act of 1792 was passed and it provided that juries should be the judges of both the law and the facts in libel cases. This was heralded by all lovers of freedom of speech and press as a victory for freedom. This rule was particularly approved in this country where in 1735 John Peter Zenger was prosecuted in a highly publicized trial for criticizing the government of New York. In that case the Chief Justice of the Province of New York got rid of two lawyers who dared defend Zenger by disbarring them. The lawyer who finally defended Zenger, Andrew Hamilton, won imperishable fame in this country by his boldness in telling the jury that they, not the judge, had the right to say whether or not the defendant was guilty. Zenger was acquitted. 17 How. St. Tr. 675. Many of the States familiar with this oppressive practice of denying the. jury and granting the judge power to determine the guilt of a defendant in libel cases wrote in their constitutions special provisions to protect the right to trial by jury in such cases. I regret to see the Court take a single step in the direction of holding that a judge rather than the jury is to have the determination of any fact in libel cases. Compare Jackson v. Denno, 378 U. S. 368.