Oyez on Dun & Bradstreet

 From Oyez:

 
Facts of the case

Dun and Bradstreet, a credit reporting agency, mistakenly reported to some of its subscribers that the construction contractor Greenmoss Builders had voluntarily filed for bankruptcy. The president of Greenmoss quickly learned about the erroneous report, requested Bradstreet to correct its error, and asked for the list of subscribers who received the report. Bradstreet refused to release the names on the list, but issued a correction to its five subscribers who received the original report. The correction stated that actually a former employee of Greenmoss had filed for bankruptcy and that Greenmoss Builders "continued in business as usual." Greenmoss was dissatisfied with the correction and again asked for the list. When Bradstreet refused a second time, Greenmoss filed suit against it for defamation in a Vermont state court. The court discovered that a 17-year-old high student interning for Bradstreet had caused the error and the jury awarded $350,000 to Greenmoss in compensatory and punitive damages. Bradstreet claimed that contrary to the Supreme Court's ruling in Gertz v. Robert Welch, the trial judge told the jury that it could award punitive damages even if Bradford did not make mistakes intentionally or out of recklessness. The court granted Bradstreet's motion for retrial, but the Vermont Supreme Court ruled that Gertz only applied to cases involving defamation by the media.

Question

If a trial judge does not instruct the jury to only award punitive damages caused by intentional slander or reckless conduct, can a jury still award punitive damages to a plaintiff defamed by private speech?

Holding (5 to 4, Plurality opinion by Justice Powell) 

Yes. Justice Lewis Powell authored the opinion for a 5-4 court. Although the trial court correctly perceived that the trial judge's instructions did not satisfy the requirements of Gertz, the Court held that Gertz did not apply since the present case did not involve public speech. Instead the Court looked to apply the logic of Gertz to situations concerning private speech. The Court reasoned that laws regulating defamation suits aimed to "balance the State's interest in compensating private individuals for injury to their reputation against the First Amendment interest in protecting this type [Bradstreet's] of expression." Because the First Amendment offers less protection to private speech than to public speech, and especially less to speech "being solely motived by a desire for profit," damages caused by it can result in heavier penalties and broader conditions for convictions. Therefore states can allow the recovery of punitive damages in defamation cases involving private speech even when the perpetrator does not demonstrate "actual malice."