Also known as: matters of private concern · private concern matter · private concern · purely private concern
Written by attorneys — see sources below.
Speech or statements that address only the discrete commercial or personal interests of the parties involved rather than issues of broader public importance or controversy. Such speech receives reduced First Amendment protection in defamation actions, allowing states to permit recovery of presumed and punitive damages without proof of actual malice.
Metro Bank circulates a written credit report to five subscribers stating that Maxwell Manufacturing faces imminent bankruptcy. The report reaches only those subscribers and concerns solely the company's internal finances. Maxwell Manufacturing sues for defamation and seeks presumed damages. Because the report addresses a matter of private concern, the First Amendment does not bar recovery of those damages without a showing of actual malice.
Musa Mensah operates a small ice plant serving only local customers. A state statute bars new entrants into the ice business without a certificate of public convenience. Mensah challenges the statute as applied to his private operation. The court treats ice supply as a matter of private concern and holds that the state may not constitutionally prohibit entry into that business.
In 1925 the Oklahoma legislature passed Chapter 147 of the Session Laws. That statute declared the manufacture, sale, and distribution of ice a public business. It prohibited any person from engaging in that business without first obtaining a license from the Corporation Commission. The statute directed that a license would issue only after a formal hearing at which competent evidence established the necessity for additional ice facilities at the proposed location. It authorized the Commission to deny an application if existing licensed plants already provided sufficient capacity to meet public needs. New State Ice Company secured such a license and for several years operated an ice manufacturing and distribution business in Oklahoma City in which it had invested $500,000. While New State Ice Company was operating under its license, E.A. Liebmann purchased a parcel of land in Oklahoma City and began construction of an ice plant without applying for or obtaining a license from the Commission. Liebmann acted with the purpose of entering the business in direct competition with the licensed company. New State Ice Company filed suit in the United States District Court for the Western District of Oklahoma seeking an injunction to prevent Liebmann from manufacturing, selling, or distributing ice without a license. The district court dismissed the bill of complaint for want of equity. It concluded that the ice business is a private enterprise not subject to the statutory restrictions. The Circuit Court of Appeals affirmed the dismissal. The case arrived in the Supreme Court on appeal from the circuit court decree. The record before the Court included evidence of the structure of the ice industry in Oklahoma, the extent of competition or monopoly in communities across the state, the Commission's prior exercise of regulatory authority over ice plants under earlier statutes dating to 1908, and the practical effects of the 1925 licensing requirement on service and pricing in the state.
View caseMarco Marquez stands outside a private funeral with signs accusing the deceased's family of personal moral failings unrelated to any public issue. The signs reach only mourners and local passersby. The family sues for intentional infliction of emotional distress. Because the speech concerns a matter of private concern, the First Amendment does not shield the speaker from liability under state tort law.
Marine Lance Corporal Matthew Snyder was killed in action in Iraq. His father, Albert Snyder, arranged for the funeral to be held in Westminster, Maryland. Members of the Westboro Baptist Church, an unincorporated association founded by Fred Phelps, learned of the funeral through local newspapers and decided to picket it to communicate their belief that God punishes the United States for its tolerance of homosexuality. On the day of the funeral, Westboro members displayed placards on public land approximately 1,000 feet from the church where the service was held. The signs included messages such as "God Hates the USA," "Thank God for Dead Soldiers," "Pope in Hell," "Priests Rape Boys," "You’re Going to Hell," and "God Hates Fags." The picketing took place for about 30 minutes before the funeral began. The funeral procession passed within 200 to 300 feet of the picketers. Church members also posted an online "epic" that discussed Matthew Snyder’s funeral and criticized his parents. Albert Snyder filed a diversity action in the United States District Court for the District of Maryland against Fred Phelps, his daughters, and the Westboro Baptist Church. The suit alleged claims for intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. A jury found for Snyder and awarded $2.9 million in compensatory damages and $8 million in punitive damages. The district court reduced the punitive damages award to $2.1 million but left the verdict otherwise intact. The Fourth Circuit reversed the judgment, holding that Westboro’s statements were protected by the First Amendment. The Supreme Court granted certiorari to review whether the First Amendment shields the church members from tort liability for their picketing speech.
Miguel Mendoza publishes a subscription-only blog post accusing Madison Meyers of selling counterfeit handbags at her neighborhood boutique. The post reaches 200 local subscribers and rests on a single unverified customer complaint. Meyers sues for defamation seeking presumed damages. The limited audience and narrow commercial focus establish a matter of private concern, so the First Amendment permits recovery without actual malice.
Maurice S. Hepps served as the principal stockholder of General Programming, Inc. (GPI). GPI franchised a chain of Thrifty stores selling beer, soft drinks, and snacks. Hepps, the corporation, and several franchisees brought a defamation action in Pennsylvania state court against Philadelphia Newspapers, Inc., owner of the Philadelphia Inquirer, and reporters William Ecenbarger and William Lambert. Between May 1975 and May 1976 the Inquirer published five articles. The articles stated that Hepps and the Thrifty chain maintained links to organized crime. They claimed those links allowed influence over a state legislator described as a convicted felon. The stories reported that federal investigators had uncovered connections between Thrifty and underworld figures. They also stated that Thrifty had obtained competitive advantages through State Liquor Control Board rulings and that a grand jury was examining whether the chain received special treatment from the Governor's administration. At trial Hepps testified at length that the statements were false. He cross-examined the articles' authors on their accuracy. The trial court ruled that the plaintiffs bore the burden of proving falsity and instructed the jury accordingly. The jury returned a verdict for the defendants. The plaintiffs appealed directly to the Pennsylvania Supreme Court. That court held that the burden of proving truth remained with the defendants and remanded the case for a new trial. The United States Supreme Court noted probable jurisdiction.
Miles Montgomery discloses the contents of a recorded telephone call between two private individuals discussing personal business dealings. The disclosure occurs on a local radio program with no connection to any public controversy. One participant sues for invasion of privacy. Because the conversation addressed a matter of private concern, the First Amendment does not bar the claim under state law.
In the fall of 1992 and spring of 1993 the Pennsylvania State Education Association engaged in collective-bargaining negotiations with the Wyoming Valley West School District board. Petitioner Anthony Kane was president of the local union. Petitioner Gloria Bartnicki served as the union's chief negotiator and a teacher in the district. On the evening of May 15, 1993, Bartnicki used a cellular telephone in her car to call Kane. During the conversation they discussed the status of the negotiations, the possibility of a strike, and the board's offer of a three-percent raise. Kane suggested that if the board did not increase its offer the union should reject it and go on strike. He made statements about blowing off front porches and doing work on some of the board members. Bartnicki responded that they would have to do some nasty things. An unidentified person intercepted and recorded the cellular telephone conversation using an electronic device. The unknown interceptor gave the tape to respondent Jack Yocum, president of a local taxpayers' organization that had been critical of the union's demands. Yocum in turn gave the tape to respondent Frederick W. Vopper, a radio talk show host operating in the area. On May 31, 1993, Vopper played the tape of the intercepted conversation on his public affairs talk show. He played the tape again on August 23, 1993, during a news broadcast on a local television station. The same day the Wilkes-Barre Times Leader published a transcript of a portion of the tape. Bartnicki and Kane filed suit against Vopper, Yocum, and other media defendants seeking damages under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 and the Pennsylvania Wiretapping and Electronic Surveillance Control Act. After discovery the District Court granted the petitioners' motion for summary judgment as to liability. The Court of Appeals for the Third Circuit reversed. The Supreme Court granted certiorari.
Speech qualifies as a matter of private concern when its content, form, and context show it addresses only the discrete interests of the parties rather than broader public issues. A credit report distributed to a small group of subscribers about one company's financial condition is a classic example. Courts examine the limited audience and narrow subject matter to determine that the speech lacks public interest.
Supporting sources
…intended to mask an attack on Snyder over a private matter. Contrast Connick, supra , at 153 (finding public employee speech a matter of private concern when it was “no coincidence that [the speech] followed upon the heels of [a] transfer notice” affecting the employee). Snyder goes on to argue that Westboro’s speech should be afforded…
…strong enough to justify the application of § 2511(c) to disclosures of trade secrets or domestic gossip or other information of purely private concern. Cf. Time, Inc. v. Hill , 385 U. S. 374, 387-388 (1967) (reserving the question whether truthful publication of
…purports to draw from Connick v. Myers , 461 U. S. 138 (1983), a test for distinguishing matters of public concern
…In sharp contrast to New York Times , Dun & Bradstreet involved not only a private-figure plaintiff, but also speech of purely private concern
…of the right to engage in it. To supply one's self with water, electricity, gas, ice or any other article, is inherently a matter of private concern. So also may be the business of supplying the same articles to others for compensation. But the business of supplying to others, for compensation, any article or service whatsoever may…
When the statement addresses a matter of private concern, states may permit recovery of presumed and punitive damages without requiring proof of actual malice. The Gertz restrictions on such damages apply only to speech on matters of public concern. This rule gives states greater latitude to apply traditional common-law remedies in purely private disputes.
Supporting sources
A private plaintiff defamed about a matter of private concern need only prove that the defendant published a false and defamatory statement with at least negligence regarding its truth or falsity. Knowledge of falsity satisfies the standard but is not required. The actual-malice requirement does not apply because the speech does not implicate public concern.
Supporting sources
Limited circulation is a significant factor but is considered together with content and context. A post reaching only 200 local subscribers about one neighborhood store's business practices was held to be private concern. In contrast, speech tied to an ongoing public controversy may remain public even if distribution is modest.
Supporting sources