Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.

Justice Brennan, with whom Justice Marshall, Justice Blackmun, and Justice Stevens join,

dissenting.

This case involves a difficult question of the proper application of Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974), to credit reporting — a type of speech at some remove from that *775which first gave rise to explicit First Amendment restrictions on state defamation law — and has produced a diversity of considered opinions, none of which speaks for the Court. Justice Powell’s plurality opinion affirming the judgment below would not apply the Gertz limitations on presumed and punitive damages to this case; rather, the three Justices joining that opinion would hold that the First Amendment requirement of actual malice — a clear and convincing showing of knowing falsehood or reckless disregard for the truth— should have no application in this defamation action because the speech involved a subject of purely private concern and was circulated to an extremely limited audience. Establishing this exception, the opinion reaffirms Gertz for cases involving matters of public concern, ante, at 756-757, and reaffirms New York Times Co. v. Sullivan, 376 U. S. 254 (1964), for cases in which the challenged speech allegedly libels a public official or a public figure. Ante, at 755. Justice White also would affirm; he would not apply Gertz to this case on the ground that the subject matter of the publication does not deal with a matter of general or public importance. Ante, at 774 (concurring in judgment).1 The Chief Justice apparently agrees with Justice White. Ante, at 764 (concurring in judgment). The four who join this opinion would reverse the judgment of the Vermont Supreme Court. We believe that, although protection of the type of expression at issue is admittedly not the “central meaning of the First Amendment,” 376 U. S., at 273, Gertz makes clear that the First Amendment nonetheless requires restraints on presumed and punitive damages awards for this *776expression. The lack of consensus in approach to these idiosyncratic facts should not, however, obscure the solid allegiance the principles of New York Times Co. v. Sullivan continue to command in the jurisprudence of this Court. See also Bose Corp. v. Consumer’s Union of the United States, Inc., 466 U. S. 485 (1984).

I

In New York Times Co. v. Sullivan the Court held that the First Amendment shields all who speak in good faith from the threat of unrestrained libel judgments for unintentionally false criticism of a public official. Recognizing that libel law, like all other governmental regulation of the content of speech, “can claim no talismanic immunity from constitutional limitations [and] must be measured by standards that satisfy the First Amendment,” 376 U. S., at 269, the Court drew from salutary common-law developments, id., at 280, and n. 20,2 and unquestioned First Amendment principles, id., at 273-274, to formulate the now-familiar actual malice test. Because the “erroneous statement is inevitable in free debate . . . [it] must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need . . . to survive.’” New York Times Co. v. Sullivan, supra, at *777271-272, quoting NAACP v. Button, 371 U. S. 415, 433 (1963); see Bose Corp., supra, at 513. These solidly accepted principles are not at issue today.

Our First Amendment libel decisions in the last two decades have in large measure been an effort to explore the full ramifications of the New York Times Co. v. Sullivan principles. Building on the extension of actual malice to “public figure” plaintiffs in Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967), the Court in Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971), and Gertz v. Robert Welch, Inc., supra, focused largely on defining the circumstances under which protection of the central First Amendment value of robust debate of public issues should mandate plaintiffs to show actual malice to obtain a judgment and actual damages; the Court settled on a rule requiring actual malice as a prerequisite to recovery only in suits brought by public officials or public figures. 418 U. S., at 344-346.3 We have also recognized, however, that the First Amendment requires significant protection from defamation law’s chill for a range of expression far broader than simply speech about pure political issues. See Time, Inc. v. Hill, 385 U. S. 374, 388 (1967) (“The guarantees for free speech and press are not the preserve of political expression or comment upon public affairs, essential as those are to healthy government”); cf. Abood v. Detroit Board of Education, 431 U. S. 209, 231 (1977).

*778Our cases since New York Times Co. v. Sullivan have proceeded from the general premise that all libel law implicates First Amendment values to the extent it deters true speech that would otherwise be protected by the First Amendment. 376 U. S., at 269. In this sense defamation law does not differ from state efforts to control obscenity, see Miller v. California, 413 U. S. 15, 23-24 (1973), ensure loyalty, see Speiser v. Randall, 357 U. S. 513 (1958), protect consumers, see Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976), oversee professions, see Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985), or pursue other public welfare goals through content-based regulation of speech. “When we deal with the complex of strands in the web of freedoms which make up free speech, the operation and effect of the method by which speech is sought to be restrained must be subjected to close analysis and critical judgment in the light of the particular circumstances to which it is applied.” Speiser v. Randall, supra, at 520. This general proscription against unnecessarily broad content-based regulation permeates First Amendment jurisprudence.

In libel law, no less than any other governmental effort to regulate speech, States must therefore use finer instruments to ensure adequate space for protected expression. Cf. Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U. S. 557, 565 (1980) (restriction “may extend only so far as the interest it serves”); Lowe v. SEC, ante, at 234 (White, J., concurring in judgment) (“[T]he First Amendment permits restraints on speech only when they are narrowly tailored to advance a legitimate governmental interest”). The ready availability and unconstrained application of presumed and punitive damages in libel actions is too blunt a regulatory instrument to satisfy this First Amendment principle, even when the alleged libel does not implicate directly the type of speech at issue in New York Times Co. v. *779Sullivan. Justice Harlan made precisely this point in Rosenbloom:

“At a minimum, even in the purely private libel area, I think the First Amendment should be construed to limit the imposition of punitive damages to those situations where actual malice is proved. This is the typical standard employed in assessing anyone’s liability for punitive damages where the underlying aim of the law is to compensate for harm actually caused,. . . and no conceivable state interest could justify imposing a harsher standard on the exercise of those freedoms that are given explicit protection by the First Amendment.” 403 U. S., at 73 (dissenting opinion) (emphasis added).

See also id., at 65; New York Times Co. v. Sullivan, 376 U. S., at 269.

Justice Harlan’s perception formed the cornerstone of the Court’s analysis in Gertz. Requiring “that state remedies for defamatory falsehood reach no farther than is necessary to protect the legitimate interest involved,” the Court found it “necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury.” 418 U. S., at 349. The Court explained that state rules authorizing presumed and punitive damages conferred on juries “largely uncontrolled discretion” to assess damages “in wholly unpredictable amounts bearing no necessary relation to the actual harm caused.” Id., at 349-350. Punitive damages in particular were found to be “wholly irrelevant to the state interest” because “[t]hey are not compensation for injury.” Id., at 350 (emphasis added). For these reasons, the Court in Gertz specifically held that the award of presumed and punitive damages on less than a showing of actual malice is not a narrowly tailored means to achieve the legitimate state purpose of protecting the reputation of private persons: the common-law approach, said the Court, “unnecessarily compounds the *780potential of any system of liability for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms.” Id., at 349 (emphasis added).4

Thus, when an alleged libel involves criticism of a public official or a public figure, the need to nurture robust debate of public issues and the requirement that all state regulation of speech be narrowly tailored coalesce to require actual malice as a prerequisite to any recovery. When the alleged libel involves speech that falls outside these especially important categories, we have held that the Constitution permits States significant leeway to compensate for actual damage to reputation.5 The requirement of narrowly tailored *781regulatory measures, however, always mandates at least a showing of fault and proscribes the award of presumed and punitive damages on less than a showing of actual malice. It has remained the judgment of the Court since Gertz that this comprehensive two-tiered structure best accommodates the values of the constitutional free speech guarantee and the States’ interest in protecting reputation.

HH I — I

The question presented here is narrow. Neither the parties nor the courts below have suggested that respondent Greenmoss Builders should be required to show actual malice to obtain a judgment and actual compensatory damages. Nor do the parties question the requirement of Gertz that respondent must show fault to obtain a judgment and actual damages. The only question presented is whether a jury award of presumed and punitive damages based on less than a showing of actual malice is constitutionally permissible. Gertz provides a forthright negative answer. To preserve the jury verdict in this case, therefore, the opinions of Justice Powell and Justice White have cut away the protective mantle of Gertz.

A

Relying on the analysis of the Vermont Supreme Court, respondent urged that this pruning be accomplished by restricting the applicability of Gertz to cases in which the defendant is a “media” entity. Such a distinction is irreconcilable with the fundamental First Amendment principle that “[t]he inherent worth of . . . speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.” First National Bank of Boston v. Bellotti, 435 *782U. S. 765, 777 (1978). First Amendment difficulties lurk in the definitional questions such an approach would generate.6 And the distinction would likely be born an anachronism.7 *783Perhaps most importantly, the argument that Gertz should be limited to the media misapprehends our cases. We protect the press to ensure the vitality of First Amendment guarantees.8 This solicitude implies no endorsement of the principle that speakers other than the press deserve lesser First Amendment protection. “In the realm of protected speech, the legislature is constitutionally disqualified from dictating . . . the speakers who may address a public issue.” First National Bank of Boston v. Bellotti, supra, at 784-785. See Bridges v. California, 314 U. S. 252, 277-278 (1941).

The free speech guarantee gives each citizen an equal right to self-expression and to participation in self-government. See, e. g., Carey v. Brown, 447 U. S. 455, 459-463 (1980); Police Department of Chicago v. Mosley, 408 U. S. 92 (1972); Cohen v. California, 403 U. S. 15, 24 (1971); Whitney v. California, 274 U. S. 357, 375-377 (1927) (Brandeis, J., concurring). This guarantee also protects the rights of listeners to “the widest possible dissemination of information from diverse and antagonistic sources.” Associated Press v. United States, 326 U. S. 1, 20 (1945).9 Accordingly, at least six *784Members of this Court (the four who join this opinion and Justice White and The Chief Justice) agree today that, in the context of defamation law, the rights of the institutional media are no greater and no less than those enjoyed by other individuals or organizations engaged in the same activities. See ante, at 773 (opinion concurring in judgment).10

B

Eschewing the media/nonmedia distinction, the opinions of both Justice White and Justice Powell focus primarily on the content of the credit report as a reason for restricting the applicability of Gertz. Arguing that at most Gertz should protect speech that “deals with a matter of public or general importance,” ante, at 773, Justice White, without analysis or explanation, decides that the credit report at issue here falls outside this protected category. The plurality opinion of Justice Powell offers virtually the same conclusion with at least a garnish of substantive analysis.

Purporting to “employ the approach approved in Gertz,” ante, at 757, Justice Powell balances the state interest in protecting private reputation against the First Amendment interest in protecting expression on matters not of public concern. The state interest is found to be identical to that at stake in Gertz. The First Amendment interest is, however, found to be significantly weaker because speech on public issues, such as that involved in Gertz, receives greater constitutional protection than speech that is not a matter of public concern. See ante, at 759-760, citing Connick v. Myers, *785461 U. S. 138 (1983). Justice Powell is willing to concede that such speech receives some First Amendment protection, but on balance finds that such protection does not reach so far as to restrain the state interest in protecting reputation through presumed and punitive damages awards in state defamation actions. Ante, at 760-761. Without explaining what -is a “matter of public concern,” the plurality opinion proceeds to serve up a smorgasbord of reasons why the speech at issue here is not, ante, at 761-762, and on this basis affirms the Vermont courts’ award of presumed and punitive damages.

In professing allegiance to Gertz, the plurality opinion protests too much. As Justice White correctly observes, Justice Powell departs completely from the analytic framework and result of that case: “Gertz was intended to reach cases that involve any false statements . . . whether or not [they] implicate] a matter of public importance.” Ante, at 772 (concurring in judgment).11 Even accepting the notion that a distinction can and should be drawn between matters *786of public concern and matters of purely private concern, however, the analyses presented by both Justice Powell and Justice White fail on their own terms. Both, by virtue of what they hold in this case, propose an impoverished definition of “matters of public concern” that is irreconcilable with First Amendment principles. The credit reporting at issue here surely involves a subject matter of sufficient public concern to require the comprehensive protections of Gertz. Were this speech appropriately characterized as a matter of only private concern, moreover, the elimination of the Gertz restrictions on presumed and punitive damages would still violate basic First Amendment requirements.

(1)

The five Members of the Court voting to affirm the damages award in this case have provided almost no guidance as to what constitutes a protected “matter of public concern.” Justice White offers nothing at all, but his opinion does indicate that the distinction turns on solely the subject matter of the expression and not on the extent or conditions of dissemination of that expression. Ante, at 773. Justice Powell adumbrates a rationale that would appear to focus primarily on subject matter.12 The opinion relies on the fact that the speech at issue was “solely in the individual interest of the speaker and its specific business audience,” ante, at 762 (emphasis added). Analogizing explicitly to advertising, *787the opinion also states that credit reporting is “hardy” and “solely motivated by the desire for profit.” Ibid. These two strains of analysis suggest that Justice Powell is excluding the subject matter of credit reports from “matters of public concern” because the speech is predominantly in the realm of matters of economic concern.

In evaluating the subject matter of expression, this Court has consistently rejected the argument that speech is entitled to diminished First Amendment protection simply because it concerns economic matters or is in the economic interest of the speaker or the audience. See, e. g., Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 501-502 (1952); American Federation of Labor v. Swing, 312 U. S. 321, 325-326 (1941); Thornhill v. Alabama, 310 U. S. 88, 101-103 (1940); see also Abood v. Detroit Board of Education, 431 U. S., at 231-232, and n. 28. “[O]ur cases have never suggested that expression about philosophical, social, artistic, economic, literary, or ethical matters — to take a nonexhaustive list of labels — is not entitled to full First Amendment protection.” Id., at 231. The breadth of this protection evinces recognition that freedom of expression is not only essential to check tyranny and foster self-government but also intrinsic to individual liberty and dignity and instrumental in society’s search for truth. See Bose Corp. v. Consumers Union of United States, Inc., 466 U. S., at 503-504; Whitney v. California, 274 U. S., at 375 (Brandeis, J., concurring).

Speech about commercial or economic matters, even if not directly implicating “the central meaning of the First Amendment,” 376 U. S., at 273, is an important part of our public discourse. The Court made clear in the context of discussing labor relations speech in Thornhill v. Alabama, supra:

“It is recognized now that satisfactory hours and wages and working conditions in industry and a bargaining position which makes these possible have an importance which is not less than the interests of those in the business or industry directly concerned. The health of the *788present generation and of those as yet unborn may depend on these matters, and the practices in a single factory may have economic repercussions upon a whole region and affect widespread systems of marketing. The merest glance at state and federal legislation on the subject demonstrates the force of the argument that labor relations are not matters of mere local or private concern. Free discussion concerning the conditions in industry and the causes of labor disputes appears to us indispensable to the effective and intelligent use of the processes of popular government to shape the destiny of modern industrial society.” 310 U. S., at 102-103.

As Thornhill suggests, the choices we make when we step into the voting booth may well be the products of what we have learned from the myriad of daily economic and social phenomenon that surround us. See id., at 102 (“Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period”).13

*789The credit reporting of Dun & Bradstreet falls within any reasonable definition of “public concern” consistent with our precedents. Justice Powell’s reliance on the fact that Dun & Bradstreet publishes credit reports “for profit,” ante, at 762, is wholly unwarranted. Time and again we have made clear that speech loses none of its constitutional protection “even though it is carried in a form that is ‘sold’ for profit.” Virginia Pharmacy Bd., 425 U. S., at 761. See also Smith v. California, 361 U. S. 147, 150 (1959); Joseph Burstyn, Inc. v. Wilson, supra, at 501. More importantly, an announcement of the bankruptcy of a local company is information of potentially great concern to residents of the community where the company is located; like the labor dispute at issue in Thornhill, such a bankruptcy “in a single factory may have economic repercussions upon a whole region.” And knowledge about solvency and the effect and prevalence of bankruptcy certainly would inform citizen opinions about questions of economic regulation. It is difficult to suggest that a bankruptcy is not a subject matter of public concern when federal law requires invocation of judicial mechanisms to effectuate it and makes the fact of the bankruptcy a matter of public record. See Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975).

Given that the subject matter of credit reporting directly implicates matters of public concern, the balancing analysis the Court today employs should properly lead to the conclusion that the type of expression here at issue should receive First Amendment protection from the chilling potential of unrestrained presumed and punitive damages in defamation actions.14

*790(2)

Even if the subject matter of credit reporting were properly considered — in the terms of Justice White and Justice Powell — as purely a matter of private discourse, this speech would fall well within the range of valuable expression for which the First Amendment demands protection. Much expression that does not directly involve public issues receives significant protection. Our cases do permit some diminution in the degree of protection afforded one category of speech about economic or commercial matters. “Commercial speech” — defined as advertisements that “[do] no more than propose a commercial transaction,” Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U. S. 376, 385 (1973)—may be more closely regulated than other types of speech. Even commercial speech, however, receives substantial First Amendment protection. Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985); Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., supra, at 765 (“So long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private-economic decisions. ... To this end, the free flow of commercial information is indispensable”). Credit reporting is not “commercial speech” as this Court has defined the term. Even if credit reporting were so considered, it would still be entitled to the substantial protections the First Amendment affords that category. See Zauderer, 471 U. S., at 637; id., at 657-658 (Brennan, J., concurring in part and dissenting in part). Under either view, the expression at issue in this case should receive protection from the chilling potential of unrestrained presumed and punitive damages awards in defamation actions.

*791Our economic system is predicated on the assumption that human welfare will be improved through informed decision-making. In this respect, ensuring broad distribution of accurate financial information comports with the fundamental First Amendment premise that “the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.” Associated Press v. United States, 326 U. S., at 20. The economic information Dun & Bradstreet disseminates in its credit reports makes an undoubted contribution to this private discourse essential to our well-being. Justice Douglas made precisely this point:

“The language of the First Amendment does not except speech directed at private economic decisionmaking. Certainly such speech could not be regarded as less important than political expression. When immersed in a free flow of commercial information, private sector deci-sionmaking is at least as effective an institution as are our various governments in furthering the social interest in obtaining the best general allocation of resources. . . .
“The financial data circulated by Dun & Bradstreet, Inc., are part of the fabric of national commercial communication.” Dun & Bradstreet, Inc. v. Grove, 404 U. S. 898, 905-906 (1971) (Douglas, J., dissenting from denial of certiorari).

Justice Douglas further noted that “[presumably the credit reports published by the petitioner facilitate through the price system the improvement of human welfare at least as much as did the underlying disagreement in our most recent libel opinion, Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971), arising out of a squabble over whether a vendor had sold obscene magazines.” Id., at 905, n. 9.

The credit reports of Dun & Bradstreet bear few of the earmarks of commercial speech that might be entitled to somewhat less rigorous protection. In every case in which we have permitted more extensive state regulation on the basis of a commercial speech rationale the speech being regu*792lated was pure advertising — an offer to buy or sell goods and services or encouraging such buying and selling.16 Credit reports are not commercial advertisements for a good or service or a proposal to buy or sell such a product. We have been extremely chary about extending the “commercial speech” doctrine beyond this narrowly circumscribed category of advertising because often vitally important speech will be uttered to advance economic interests and because the profit motive making such speech hardy dissipates rapidly when the speech is not advertising. Compare Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U. S. 557 (1980), with Consolidated Edison Co. v. Public Service Comm’n of New York, 447 U. S. 530 (1980).

It is worth noting in this regard that the common law of most States, although apparently not of Vermont, 143 Vt. 66, 76, 461 A. 2d 414, 419 (1983), recognizes a qualified privilege for reports like that at issue here. See Maurer, Common Law Defamation and the Fair Credit Reporting Act, 72 Geo. L. J. 95, 99-105 (1983). The privilege typically precludes recovery for false and defamatory credit information without a showing of bad faith or malice, a standard of proof which is often defined according to the New York Times formulation. See, e. g., Datacon, Inc. v. Dun & Bradstreet, Inc., 465 F. Supp. 706, 708 (ND Tex. 1979). The common law thus recognizes that credit reporting is quite susceptible to libel’s chill; this accumulated learning is worthy of respect.

*793Even if Justice Powell’s characterization of the credit reporting at issue here were accepted in its entirety, his opinion would have done no more than demonstrate that this speech is the equivalent of commercial speech. The opinion, after all, relies on analogy to advertising. Credit reporting is said to be hardy, motivated by desire for profit, and relatively verifiable. Ante, at 762. But this does not justify the elimination of restrictions on presumed and punitive damages. State efforts to regulate commercial speech in the form of advertising must abide by the requirement that the regulatory means chosen be narrowly tailored so as to avoid any unnecessary chilling of protected expression. See Zauderer, supra; Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., supra; Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, supra.16

The Court in Gertz specifically held that unrestrained presumed and punitive damages were “unnecessarily” broad, *794418 U. S., at 350, in relation to the legitimate state interests. Indeed, Gertz held that in a defamation action punitive damages, designed to chill and not to compensate, were “wholly irrelevant” to furtherance of any valid state interest. Ibid. The Court did not reach these conclusions by weighing the strength of the state interest against the strength of the First Amendment interest. Rather, the Court recognized and applied the principle that regulatory measures that chill protected speech be no broader than necessary to serve the legitimate state interest asserted. The plurality opinion today recognizes, as it must, that the state interest at issue here is identical to that at issue in Gertz. What was “irrelevant” in Gertz must still be irrelevant, and the requirement that the regulatory means be no broader than necessary is no less applicable even if the speech is simply the equivalent of commercial speech. Thus, unrestrained presumed and punitive damages for this type of speech must run afoul of First Amendment guarantees.17

(3)

Even if not at “the essence of self-government,” Garrison v. Louisiana, 379 U. S. 64, 74-75 (1964), the expression at issue in this case is important to both our public discourse and our private welfare. That its motivation might be the economic interest of the speaker or listeners does not diminish its First Amendment value. See Consolidated Edison Co. *795v. Public Service Comm’n of New York, 447 U. S. 530 (1980). Whether or not such speech is sufficiently central to First Amendment values to require actual malice as a standard of liability, this speech certainly falls within the range of speech that Gertz sought to protect from the chill of unrestrained presumed and punitive damages awards.18

Of course, the commercial context of Dun & Bradstreet’s reports is relevant to the constitutional analysis insofar as it implicates the strong state interest “in protecting consumers and regulating commercial transactions,” Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 460 (1978). Cf. Bolger v. Young Drug Products Corp., 463 U. S. 60, 81 (1983) (Stevens, J., concurring in judgment). The special harms caused by inaccurate credit reports, the lack of public sophistication about or access to such reports, and the fact that such reports by and large contain statements that are fairly readily susceptible of verification, all may justify appropriate *796regulation designed to prevent the social losses caused by false credit reports.19 And in the libel context, the States’ regulatory interest in protecting reputation is served by. rules permitting recovery for actual compensatory damages upon a showing of fault. Any further interest in deterring potential defamation through case-by-case judicial imposition of presumed and punitive damages awards on less than a showing of actual malice simply exacts too high a toll on First Amendment values. Accordingly, Greenmoss Builders should be permitted to recover for any actual damage it can show resulted from Dun & Bradstreet’s negligently false credit report, but should be required to show actual malice to receive presumed or punitive damages. Because the jury was not instructed in accordance with these principles, we would reverse and remand for further proceedings not inconsistent with this opinion.

Justice White also ventures some modest proposals for restructuring the First Amendment protections currently afforded defendants in defamation actions. Justice White agrees with New York Times Co. v. Sullivan, however, that the breathing space needed to ensure the robust debate of public issues essential to our democratic society is impermissibly threatened by unrestrained damages awards for defamatory remarks. Ante, at 770-772 (opinion concurring in judgment).

The principles were expressed as early as 1788 in an opinion of the Pennsylvania Supreme Court:

“What then is the meaning of the bill of rights, and Constitution of Pennsylvania, when they declare, ‘That the freedom of the press shall not be restrained,’ and ‘that the printing presses shall be free to every person who undertakes to examine the proceedings of the legislature or any part of the government?’. . . [T]hey give to every citizen a right of investigating the conduct of those who are entrusted with the public business .... The true liberty of the press is amply secured by permitting every man to publish his opinions; but it is due to the peace and dignity of society to enquire into the motives of such publications, and to' distinguish between those which are meant for use and reformation, and with an eye solely to the public good, and those which are intended merely to delude and defame. To the latter description, it is impossible that any good government should afford protection and impunity.” Respublica v. Oswald, 1 Dall. 319, 325 (footnotes omitted).

A plurality in Rosenbloom would have applied the actual malice standard of liability when the alleged libel concerned matters of “public or general interest,” irrespective of the status of the plaintiff. 403 U. S., at 43 (opinion of Brennan, J.). In Gertz the Court rejected the Rosenbloom plurality’s “public or general interest” approach. That approach was thought unacceptably to impair the reputational interests of private individuals, who, unlike public officials or public figures, neither assume the risk of rough treatment by entering the public arena nor have ready access to the media to rebut false charges. 418 U. S., at 344-345. It was also thought to “occasion the additional difficulty of forcing state and federal judges to decide on an ad hoc basis which publications address issues of ‘general or public interest.’” Id., at 346 (citation omitted).

Since the decision in Gertz, we have applied its reasoning with respect to damages in excess of compensation for actual harm in other areas of the law. See, e. g., Electrical Workers v. Foust, 442 U. S. 42, 48-52 (1979); Newport v. Fact Concerts, Inc., 453 U. S. 247, 270-271 (1981). These cases, like Gertz, recognize that “the alleged deterrence achieved by punitive damages awards is likely outweighed by the costs — such as the encouragement of unnecessary litigation and the chilling of desirable conduct—flowing from the rule, at least when the standards on which the awards are based are ill-defined.” Smith v. Wade, 461 U. S. 30, 59 (1983) (Eehnquist, J., dissenting). See id., at 46-47 (Court opinion) (noting prevailing view that punitive damages may only be awarded for ‘“conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others,’” quoting Restatement (Second) of Torts § 908(2) (1979) (emphasis deleted)); 461 U. S., at 93-94 (O’Connor, J., dissenting); Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 244-245 (1984); id., at 260-261 (Blackmun, J., dissenting); id., at 276 (Powell, J., dissenting).

Such speech might at times involve issues of public or general interest within the meaning of Rosenhloom and thus implicate important First Amendment interests. To justify this cost, the Court in Gertz held that the State had an enhanced interest in protecting private reputation and cited the independent First Amendment difficulties inherent in case-by-case judicial determination of whether speech concerns a mattér of public interest. 418 U. S., at 344-346. See n. 3, supra. The decision in Gertz is also susceptible of an alternative justification. Speech allegedly defaming a private person will generally be far less likely to implicate matters of public importance than will speech allegedly defaming public officials or public figures. In light of the problems inherent in case-by-case judicial *781determination of what is in the public interest, the Court’s result could be explained as a decision that the cost of case-by-case evaluation could be avoided without significant chilling of speech involving matters of public importance.

An attempt to characterize petitioner Dun & Bradstreet illustrates the point. Like an account of judicial proceedings in a newspaper, magazine, or news broadcast, a statement in petitioner’s reports that a particular company has filed for bankruptcy is a report of a timely news event conveyed to members of the public by a business organized to collect and disseminate such information. Thus it is not obvious why petitioner should find less protection in the First Amendment than do established print or electronic media. The Vermont Supreme Court nonetheless characterized petitioner as a nonmedia defendant entitled to less protection because it is “in the business of selling financial information to a limited number of subscribers who have paid substantial fees for [its] services.” 143 Vt. 66, 73, 461 A. 2d 414, 417 (1983). The court added that “[t]here is a clear distinction between a publication which disseminates news for public consumption and one which provides specialized information to a selective, finite audience.” Ibid.

No clear line consistent with First Amendment principles can be drawn on the basis of these criteria. That petitioner’s information is “specialized” or that its subscribers pay “substantial fees” hardly distinguishes these reports from articles in many publications that would surely fall on the “media” side of the line the Vermont Supreme Court seeks to draw. New published statements are of universal interest, and few publications are distributed without charge. Much fare of any metropolitan daily is specialized information for which a selective, finite audience pays a fee. Nor is there any reason to treat petitioner differently than a more widely circulated publication because it has “a limited number of subscribers.” Indeed, it would be paradoxical to increase protection to statements injurious to reputation as the size of their audience, and hence their potential to injure, grows. Cf. Keeton v. Hustler Magazine, Inc., 465 U. S. 770, 781 (1984).

Owing to transformations in the technological and economic structure of the communications industry, there has been an increasing convergence of what might be labeled “media” and “nonmedia.” Pool, The New Technologies: Promise of Abundant Channels at Lower Cost, in What’s News: The Media in American Society 81, 87 (1981). See also I. Pool, Technologies of Freedom (1983); U. S. Federal Trade Commission, Media Policy Session: Technology and Legal Change (1979); Subcommittee on Telecommunications, Consumer Protection, and Finance of the House Committee on Energy and Commerce, Telecommunications in Transition: The Status *783of Competition in the Telecommunications Industry, 97th Cong., 1st Sess. (Comm. Print 1981).

See, e. g., Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U. S. 575, 585 (1983); Columbia Broadcasting System, Inc. v. FCC, 453 U. S. 367, 395 (1981); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974); Branzburg v. Hayes, 408 U. S. 665, 707 (1972); New York Times Co. v. United States, 403 U. S. 713 (1971); Mills v. Alabama, 384 U. S. 214, 218-219 (1966); Grosjean v. American Press Co., Inc., 297 U. S. 233, 250 (1936). See also Herbert v. Lando, 441 U. S. 153, 180-199 (1979) (Brennan, J., dissenting in part); Saxbe v. Washington Post Co., 417 U. S. 843, 850 (1974) (Powell, J., dissenting); Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U. S. 376, 393 (1973) (Burger, C. J., dissenting); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 390 (1969); Time, Inc. v. Hill, 385 U. S. 374, 389 (1967); Stewart, “Or of the Press,” 26 Hastings L. J. 631 (1975).

In light of the “increasingly prominent role of mass media in our society, and the awesome power it has placed in the hands of a select few,” Gertz, 418 U. S., at 402 (White, J., dissenting), protection for the speech *784of nonmedia defendants is essential to ensure a diversity of perspectives. See J. Barron, Freedom of the Press for Whom? (1973). “[U]ninhibited, robust and wide-open” debate, New York Times Co. v. Sullivan, 376 U. S., at 270, among nonmedia speakers is as essential to the fostering and development of an individual’s political thought as is such debate in the mass media. See J. Klapper, The Effects of Mass Communications (1960).

Justice Powell’s opinion does not expressly reject the media/ nonmedia distinction, but does expressly decline to apply that distinction to resolve this case.

One searches Gertz in vain for a single word to support the proposition that limits on presumed and punitive damages obtained only when speech involved matters of public concern. Gertz could not have been grounded in such a premise. Distrust of placing in the courts the power to decide what speech was of public concern was precisely the rationale Gertz offered for rejecting the Rosenbloom plurality approach. 418 U. S., at 346. It would have been incongruous for the Court to go on to circumscribe the protection against presumed and punitive damages by reference to a judicial judgment as to whether the speech at issue involved matters of public concern. At several points the Court in Gertz makes perfectly clear the restrictions of presumed and punitive damages were to apply in all cases. Id., at 346, 349-350.

Indeed, Justice Powell’s opinion today is fairly read as embracing the approach of the Rosenbloom plurality to deciding when the Constitution should limit state defamation law. The limits imposed, however, are less stringent than those suggest by the Rosenbloom plurality. Under the approach of today’s plurality, speech about matters of public or general interest receives only the Gertz protections against unrestrained presumed and punitive damages, not the full New York Times Co. v. Sullivan protections against any recovery absent a showing of actual malice.

Justice Powell also appears to rely in part on the fact that communication was limited and confidential. Ante, at 762. Given that his analysis also relies on the subject matter of the credit report, ante, at 761-762, it is difficult to decipher exactly what role the nature and extent of dissemination plays in Justice Powell’s analysis. But because the subject matter of the expression at issue is properly understood as a matter of public concern, see infra, at 791-793, it may well be that this element of confidentiality is crucial to the outcome as far as Justice Powell’s opinion is concerned. In other words, it may be that Justice Powell thinks this particular expression could not contribute to public welfare because the public generally does not receive it. This factor does not suffice to save the analysis. See n. 18, infra.

Similarly, we have rejected the arguments for denying or restricting First Amendment protection of advertising on the ground that advertising is not a matter of public concern. Recognizing that even pure advertising may well be affected with a public interest, we have stated that “the free flow of commercial information is indispensable ... to the formation of intelligent opinions as to how [our economic] system ought to be regulated or altered.” Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 765 (1976). See also Bigelow v. Virginia, 421 U. S. 809, 822 (1975) (“Viewed in its entirety the [abortion] advertisement conveyed information of potential interest and value to a diverse audience — not only to readers possibly in need of the services offered”). The potential political aspect of attempts to influence consumer preferences has also been recognized. See Metromedia, Inc. v. San Diego, 453 U. S. 490, 538-539 (1981) (Brennan, J., concurring in judgment) (“May the city decide that a United Automobile Workers billboard with the message ‘Be a patriot — do not buy Japanese-manufactured cars’ is ‘commercial’ and therefore forbid it?”). The greater state latitude for regulating commercial *789advertising is instead a function of “greater objectivity and hardiness.” Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., supra, at 772, n. 24.

Justice Powell purports to draw from Connick v. Myers, 461 U. S. 138 (1983), a test for distinguishing matters of public concern from matters of private concern. This reliance perpetuates a definition of “public con*790cern” wholly out of accord with our consistent precedents and with the common-law understanding of the concept. See id., at 165, n. 5 (Brennan, J., dissenting). Moreover, Connick explicitly limited its distinction between public and private concern to the “context” of a government employment situation. Id., at 148, and n. 8.

See, e. g., Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985); Bolger v. Young Products Corp., 463 U. S. 60 (1983) (contraceptive advertising); In re R. M. J., 455 U. S. 191 (1982) (lawyer advertising); Metromedia, Inc. v. San Diego, 453 U. S. 490 (1981) (commercial billboard advertising); Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U. S. 557 (1980) (advertising of electricity); Friedman v. Rogers, 440 U. S. 1 (1979) (optometrist advertising); Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978) (lawyer’s solicitation of business); Bates v. State Bar of Arizona, 433 U. S. 350 (1977) (lawyer advertising).

Indeed Justice Powell has chosen a particularly inapt set of facts as a basis for urging a return to the common law. Though the individual’s interest in reputation is certainly at the core of notions of human dignity, ante, at 757-758, citing Rosenblatt v. Baer, 383 U. S. 75, 92 (1966) (Stewart, J., concurring); see Paul v. Davis, 424 U. S. 693, 714 (1976) (Brennan, J., dissenting), the reputational interest at stake here is that of a corporation. Similarly, that this speech is solely commercial in nature undercuts the argument that presumed damages should be unrestrained in actions like this one because actual harm 'will be difficult to prove. If the credit report is viewed as commercial expression, proving that actual damages occurred is relatively easy. For instance, an alleged libel concerning a bank’s customer may cause the bank to lower the credit limit or raise the interest rate charged that customer. The commercial context does not increase the need for presumed damages, but if anything reduces the need to presume harm. At worst the commercial damages caused by such action should be no more difficult to ascertain than many other traditional elements of tort damages. See, e. g., Russell v. City of Wildwood, 428 F. 2d 1176, 1181 (CA3 1970) (future earnings); Seffert v. Los Angeles Transit Lines, 56 Cal. 2d 498, 509, 364 P. 2d 337, 344 (1961) (Traynor, J., dissenting) (pain and suffering).

Justice Powell’s analysis fails to apply the requirement that regulation be narrowly tailored. At one point the opinion reads: “This particular interest [in credit reporting] warrants no special protection when . . . the speech is wholly false and clearly damaging to the victim’s business reputation.” Ante, at 762. The point, of course, is not that false speech intrinsically deserves protection, see Gertz, 418 U. S., at 340, but that the burdening of unintentional false speech potentially chills truthful speech. Thus, the state interest in compensating injury resulting from false speech must be vindicated by means that are narrowly tailored to avoid this deleterious result.

Justice Powell also relies in part on the fact that the expression had a limited circulation and was expressly kept confidential by those who received it. Because the subject matter of the expression at issue in this ease would clearly receive the comprehensive protections of Gertz were the speech publicly disseminated, this factor of confidential circulation to a limited number of subscribers is perhaps properly understood as the linchpin of Justice Powell’s analysis. See ante, at 762 (because of confidentiality “it cannot be said that the report involves any ‘strong interest in the free flow of commercial information’”) (plurality opinion) (citation omitted). See also n. 12, supra.

This argument does not save the analysis. The assertion that the limited and confidential circulation might make the expression less a matter of public concern is dubious on its own terms and flatly inconsistent with our decision in Givhan v. Western Line Consolidated School Dist., 439 U. S. 410 (1979). Perhaps more importantly, Dun & Bradstreet doubtless provides thousands of credit reports to thousands of subscribers who receive the information pursuant to the same strictures imposed on the recipients in this ease. As a systemic matter, therefore, today’s decision diminishes the free flow of information because Dun & Bradstreet will generally be made more reticent in providing information to all its subscribers.

See Maurer, Common Law Defamation and the Fair Credit Reporting Act, 72 Geo. L. J. 95, 126 (1983):

“Under Gertz, plaintiffs may be compensated for actual damages upon establishing the fault of the defendant; to obtain punitive damages, a plaintiff must demonstrate malice. Sections 1681o and 1681n [of the Fair Credit Reporting Act] are consistent with these constitutional principles. Section 1681o provides for recovery of actual damages upon a showing of negligence, which presumably satisfies the Gertz requirement of fault. Section 1681n authorizes punitive damages for willful violation of the Act. Whether section 1681n is equivalent to Gertz’s malice standard depends on whether a court would consider it to be possible to fail willfully to follow reasonable procedures and yet not manifest reckless disregard for the truth. Such a fine distinction appears unworkable as a categorical test, so that section 1681n would likely be regarded as harmonious with the principles of Gertz. Thus, the Act appears to provide the degree of protection for commercial speech currently required under first amendment doctrine” (footnotes omitted).