C.A.D.C. Cir. Reported below: 242 U.S. App. D.C. 301, 750 F.2d 970.
JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.
In March 1978, petitioner, then a professor of political science at New York University, was nominated by a departmental search
committee to head the Department of Government and Politics at the University of Maryland in College Park. The committee's recommendation proved to be highly controversial, largely because petitioner was an avowed Marxist. Petitioner's appointment was approved by the Provost of the University and the Chancellor of the College Park Campus, but was eventually overruled by the President of the University.
While this controversy was going on, respondents, nationally syndicated columnists, devoted one of their columns to it. In the course of the article, they made a number of statements about petitioner, including a description of his principal scholarly work as "a ponderous tome in adoration of the master," and then went on to say:
"Such pamphleteering is hooted at by one political scientist in a major eastern university, whose scholarship and reputation as a liberal are well known. 'Ollman has no status within the profession, but is a pure and simple activist,' he said."
Petitioner sued respondents for libel in the United States District Court for the District of Columbia, and that court granted summary judgment for respondents. 479 F. Supp. 292 (1979). On appeal, the Court of Appeals for the District of Columbia Circuit sitting en banc affirmed the judgment by a vote of six to five, producing three separate opinions concurring in the affirmance, and four dissenting opinions. 242 U.S. App. D.C. 301, 750 F.2d 970 (1984).
The Court of Appeals rested its decision entirely on the First Amendment to the United States Constitution, and held that this statement about petitioner -- that he had no status within his profession -- could simply not form the basis of an action for defamation in the light of that Amendment. There was no question as to whether petitioner could meet the requirement of "malice" under New York Times Co. v. Sullivan, 376 U.S. 254 (1964), since the case had never been tried to a jury. The Court of Appeals majority relied upon a brief passage from our opinion in Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-340 (1974). I think that the result reached by the Court of Appeals in this case is nothing less than extraordinary. At the heart of the common law of defamation were a few areas of expression which even when spoken rather than written were regarded as so damaging as to be classified as "slander per se" and therefore not to require the proof of any special damages in order to allow recovery. One of these categories
consists of statements which defame the plaintiff in connection with his business or occupation. See, e.g., November v. Time, Inc., 13 N.Y. 2d 175, 194 N.E. 2d 126 (1963); Stevens v. Morse, 185 Wis. 500, 201 N.W. 815 (1924).
Much of the extended treatment of this question in the Court of Appeals was devoted to the question of whether or not this statement was one of "fact" or of "opinion," the implication being that if the statement were one of "opinion" it could not be actionable under any circumstances. But for nationally syndicated columnists to quote an unnamed political scientist as saying that petitioner has "no status within the profession" is far more than the mere statements of opinion traditionally protected by qualified privilege under the common law of libel. Doctors who are disapproved of by other doctors may find solace in the fees paid by their patients; lawyers disapproved of by other lawyers may comfort themselves by the retainers paid by their clients. But the academic ...