In Dun and Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), a majority of Supreme Court justices agreed that nonmedia distributors of information, such as credit agencies, do not enjoy First Amendment protections as defendants in libel lawsuits.
Dun and Bradstreet said it was entitled to First Amendment protections in a lawsuit
Dun and Bradstreet provided financial and other information about businesses to its subscribers, who by contract could not further distribute that information. When its information collector misinterpreted court records, Dun and Bradstreet incorrectly reported to five clients that Greenmoss Builders had filed for bankruptcy — information that was potentially devastating to Greenmoss’s ability to do business.
Greenmoss sued successfully in state court, and a jury awarded the company compensatory or actual damages plus punitive damages. Dun and Bradstreet argued that, as a nonmedia information distributor, it was entitled to the same First Amendment protections provided to the media defendants in Gertz v. Robert Welch, Inc. (1974). The Vermont Supreme Court disagreed and saw no reason that Dun and Bradstreet could not be required to pay the awarded damages for its error.
Dun and Bradstreet wanted to be protected by Gertz standard
Until 1964, liability for libel had been controlled by the states and was not limited by First Amendment considerations. Then in New York Times Co. v. Sullivan (1964), the U.S. Supreme Court declared that public officials suing publications for libel must prove, by clear and convincing evidence, that the libel was committed with “actual malice” — with knowledge of the falsity or with reckless disregard for the truth — to be awarded damages.
In Curtis Publishing Co. v. Butts (1967), the Court appeared to apply the same standard to public figures who were not public officials. In Gertz, however, the Court was unwilling to fully apply New York Times Co. v. Sullivan to libel suits brought by people who were neither public officials nor public figures, but it did require that liability must be with fault and that presumed and punitive damage awards be supported by actual malice findings.
Court said First Amendment did not protect the speech and distributor in question
The lingering question was whether the Gertz standard protected nonmedia distributors of information about people, like credit bureaus.
In Dun and Bradstreet, the Court answered that question in the negative, holding that the First Amendment protects speech “on matters of public concern,” not speech related to purely private concerns, as in this case.
Justice Lewis F. Powell Jr., joined by Justices William H. Rehnquist and Sandra Day O’Connor, wrote the plurality opinion, with which Chief Justice Warren E. Burger and Justice Byron R. White concurred on the judgment.
Justices William J. Brennan Jr., Thurgood Marshall, Harry A. Blackmun, and John Paul Stevens dissented, opining that the Gertz rule should apply in this case.
This article was originally published in 2009. Leonard W. Peck, Jr. worked in prison law, including an abundance of First Amendment issues, for the Texas prisons from 1976-2000. He was an assistant professor at Texas A&M Texarkana from 2006-2013.Send Feedback on this article