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ized as depending upon a "theory" of "impersonal" libel, which we held constitutionally impermissible in New York Times Co. v. Sullivan, 376 U. S. 254.

In New York Times, in addition to establishing a constitutional standard governing actions for defamation of public officials, we went on to examine the evidence in that particular case. We found that "it was incapable of supporting the jury's finding that the allegedly libelous statements were made 'of and concerning' respondent." 376 U. S., at 288. The statements in question, in general terms, attributed misconduct to the police of Montgomery, Alabama, during civil rights activities. The plaintiff in the libel suit, the Commissioner of Public Affairs, pressed his action not on the theory that the statements referred to him, but instead "solely on the unsupported assumption that, because of his official position," the statements must be taken as indicating that he had been involved in the misconduct. 376 U. S., at 289. The Supreme Court of Alabama held that "[i]n measuring the performance or deficiencies of . . . groups [such as the police], praise or criticism is usually attached to the official in complete control of the body," 273 Ala. 656, at 674-675, 144 So. 2d 25, at 39, and allowed the action by the Commissioner.

In setting aside the state judgment we noted that this proposition had "disquieting implications for criticism of governmental conduct," 376 U. S., at 291, for it permitted any general statement criticizing some governmental activity to be transmuted into a cause of action for personal libel by the official in charge of that activity. We stated that the liberty of expression embodied in the Fourteenth Amendment forbade a State from permitting "an otherwise impersonal attack on governmental operations" to be used as the basis of "a libel of an official responsible for those operations." 376 U. S., at 292.

Opinion of HARLAN, J.

383 U.S.

This salutary principle has been applied, I believe incorrectly, to the facts of this case. It is true that, on its face, the alleged libel here seems to discuss only the conduct of governmental operations, viz., the comparative improvement in the management of the ski area. However, the theory on which respondent based his claim is that the rhetorical question, "What happened to all the money last year? and every other year?" was read as accusing him of peculation or culpable mismanagement. The trial court and the Supreme Court of New Hampshire, as well as this Court, have found this a permissible reading of the newspaper article.

The charge of the trial court did not leave the jury free to convert an "impersonal" into a "personal" libel. The court merely instructed the jury that if it interpreted the article as an accusation of misconduct the jury could find for the plaintiff if either he alone was found to be libeled, or he was one of a small group of persons so libeled.* This is conventional tort law. "[I]f the group

*The trial judge charged the jury as follows:

"An insinuation of a crime is actionable as a positive assertion if the meaning is reasonably plain and clear, and the putting of the words in the form of a question does not change the liability of the defendant if the form and sense of the question is defamatory or derogatory. Now, an imputation of impropriety or a crime to one or some of a small group that casts suspicion upon all is actionable. It is sufficient if Mr. Baer, the plaintiff here, proves on the balance of probabilities by his evidence that he was one of a group upon whom suspicion was cast, and the fact that others in this group might also have been libeled is not a defense; but Mr. Baer has the burden of showing that the defamation, if you find that there was one, either was directed to him or could have been as one of a small group." R. Vol. V, pp. 148-149.

"Now, as to any part of the article which you, if you do, find defamatory, and that Mr. Baer was intended, or he with a few others was intended, he and a small group, if you find that it was derogatory of him and charged him with a crime, held him up to

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is small enough numerically or sufficiently restricted geographically so that people reasonably think the defamatory utterance was directed to or intended to include the plaintiff, there may be a recovery." 1 Harper & James, Torts § 5.7, at 367 (1956). See also Prosser, Torts § 106, at 767-768 (1964); Riesman, Democracy and Defamation: Control of Group.Libel, 42 Col. L. Rev. 727, 759– 760 (1942). The Restatement of Torts § 564, Comment c (1938), includes this aspect of defamation in language very similar to that of the charge in this case:

"The size of the class may be so small as to indicate that the plaintiff is the person intended or at least to cast such grave suspicion upon him as to be defamatory of him. Thus, a statement that all members of a school board or a city council are corrupt is sufficiently definite to constitute a defamatory publication of each member thereof. If, however, the group or class disparaged is a large one, some particular circumstances must point to the plaintiff as the person defamed. Thus, a statement that all lawyers are dishonest or that all ministers are liars is not defamatory of any particular lawyer or minister unless the surrounding circumstances indicate that he was the person intended."

This and the trial court's formulation can scarcely be thought too indefinite, for they reflect standards successfully applied over the years in numerous state cases. See, e. g., Gross v. Cantor, 270 N. Y. 93, 200 N. E. 592; cases cited in Harper & James, supra, § 5.7, at 367; and Prosser, supra, § 106, at 767-768. The rule is an eminently sound one.

scorn and ridicule, that he was the fellow, either singly or in a small group, then you can go on to consider-and you should-whether the publication was privileged or justified . . . ." R. Vol. V, pp. 151-152.

As to the facts at hand, it seems to be agreedapart of course from the public-official "malice" rule which would apply in any event-that if the article in question is read by the jury as an accusation of wrongdoing by Baer, he has a good cause of action in libel. I see no reason why that cause of action should fail if the jury finds that the article was read as accusing the three Commissioners along with. Baer. This is a very different case from New York Times, where the alleged libel concerned not an identified small group responsible for the running of a particular public enterprise, but a criticism of "the police" generally in the discharge of their duties. It seems manifest that in instructing the jury as to a "small group," the trial judge was not allowing the plaintiff to transform impersonal governmental criticism into an individual cause of action, but was simply referring to this traditional tort doctrine that more than one person can be libeled by the same statement. I cannot understand why a statement which a jury is permitted to read as meaning "A is a thief" should become absolutely privileged if it is read as meaning “A, B, C, and D are thieves."

Without receding in any way from our ruling in New York Times that impersonal criticism of government cannot be made a basis for a libel action by an official who heads the branch or agency involved, I dissent from the Court's conclusion that this is such a case. In all other respects I join the Court's opinion.

MR. JUSTICE FORTAS, dissenting.

I would vacate the writ in this case as improvidently granted. The trial below occurred before this Court's decision in New York Times Co. v. Sullivan, 376 U. S. 254. As a result, the factual record in this case was not shaped in light of the principles announced in New York Times. Particularly in this type of case it is important to observe

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the practice of relating our decisions to factual records. They serve to guide our judgment and to help us measure theory against the sharp outlines of reality. Especially where our decision furnishes a necessarily Procrustean bed for state law, I think, with all respect, that we should insist upon a relevant factual record. A subsequent trial may conceivably help respondent, but it will be too late to be of assistance to us.