ESSAY LIBEL, THE "HIGHER TRUTHS" OF ART, AND THE FIRST AMENDMENT IsMoRE SImR t During the 1960's, both the lay and professional publics became aware of the possibility that common law libel concepts could clash with-and run afoul of-the first amendment. Although New York Times Co. v. Sullivan' for the first time in our national history subjected state tort law to a searching constitutional critique, it was not in reality so revolutionary a decision as most commentators have maintained. 2 The creation of a so-called "constitutional privilege" negligently to misstate defamatory facts on matters of public interest about public officials, first enunciated in Sullivan and further de- veloped in its progeny, was based upon certain sound (though not universally accepted) common law concepts. Sullivan only cast in constitutional terms an ongoing judicial attempt to balance the rights of free speech and press against the individual's interest in reputation.3 "Fair comment" doctrine, along with the minority view granting a privilege to libelous utterances made in good faith, without malice, and about public affairs, were raised to the level of constitutional imperative. In the 1960's, courts sought to encourage an "uninhibited, robust, and wide-open" atmosphere of public debate, so that now "[t]he law of defamation has in effect been rewritten . ,4 The emergence of new literary and scholarly forms of expression in the 1970's has sown seeds that promise to ripen into yet another re-evaluation of common law libel concepts in a contemporary setting. f Professor of Constitutional Law and History, John Jay College of Criminal Justice, City University of New York. B.S. 1955, University of Wisconsin; J.D. 1959, M.A. 1965, New York University. Member, New York and Massachusetts Bars. '376 U.S. 254 (1964). 2P. KuBLAND, PoLmcs, THE CONsTIrON, AND TmE WABIEN COURT 64 (1970). See Eaton, The American Law of Defamation Through Gertz v. Robert Welch, Inc. and Beyond: An Analytical Primer, 61 VA. L. REv. 1349, 1360-66 (1975). 3 "[T]he weapon adopted by the Court [in Sullivan] was one already proto- typed in the common law." Eaton, supra note 2, at 1366. 4 Buckley v. Littell, 539 F.2d 882, 888 (2d Cir. 1976). (1065) 1066 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol 126:1065 I. THE NEw LrrEiUTuRE New forms of artistic, literary, and scholarly expression are to be found in all of the media, especially print and visual. In modem literature, our post-Freudian sensibility has attempted to grapple with the great problems of human existence and meaning by openly and frankly proclaiming that there are no boundaries between the private psyche and the public act.5 The quest for "higher truths" is a broad-based one that unabashedly subjects the lives of charac- ters-both fictional and real-to incisive, at times scathing, analysis. Creative artists have used psychological insights and techniques to depict not only a fictional world, but to interpret a frequently bewildering reality. Indeed, to many serious artists, the bizarre nature of reality seems to be more interesting, more stimulating, and more worthy of exploration than any self-constructed fantasies.6 This development in the creative arts has had two offshoots: the cultivation of serious scholarly interest in psycho-biography and psycho-history,7 and an inevitable descent into popular culture.8 5 The modem literary sensibility betrays a "bitter impatience with the whole apparatus of cognition and the limiting assumption of rationality" and derives in part from "Freud, who focuses upon the irremediable conflict between nature and culture" and "the damage done the life of instinct." Tim IDEA OF THm MoDmwr IN LrrmTnE AND THE ARTS 16, 23 (L Howe ed. 1967). "The traditional values of decorum, both in the general ethical sense and strictly literary sense, are overturned. Everything must now be explored to its outer and inner limits; but more, there are to be no limits . ," id. 31, so that "[c]haracter ... is regarded not as a coherent, definable, and well-structured entity, but as a psychic battlefield, or an insoluble puzzle ...... Id. 34. "As there had been a movement dedicated to recording the realities of the outer world in the 19th century, so it was necessary to recognize the 20th century's search for inner reality." L. EDEL, THE MODERN PSYCHOLoIcAL NovWrL v-vi (1964). These novelists had an "acute need to cope with inner prob- lems and project ... inner life before the world." Id. 12. "Freud had presented a paranoid version of the relation of the self to culture: he conceived of the self submitting to culture and being yet in opposition to it .... [11n respect of this 'paranoia' Freud is quite at one with literature." L. TRILLINc, Freud: Within and Beyond Culture, in BEYOND CULTURE 117-18 (1965). For a general analysis of both the serious and popular literary reception to Freud in America, see F.J. HoFsmAN, FnEtrAN,rsm ANa TE LnmrnY MIND (2d ed. 1957). 6 P. RoTra, Writing American Fiction, in READINa MYSELF AND OTHERS 117-47 (1975). 7 Recent examples of psycho-history by America's leading practitioner of the mode are B. MAzLrars, Kssmzas, THE ExroPEAx MIND rn AMEmmcA PoLicy (1976); B. MAZrsLI5, IN SEARCH OF NIXON (1972). See also B. Brodie, A Psycho- analytic Interpretation of Woodrow Wilson, in PsYcHoANALYsrs AND HIsTory 118-19 (B. Mazlish ed. 1963) (Wilson's political failures attributed to his "compulsive and obsessive behavior" resulting from "serious loss of self-esteem which his father was inflicting on him"). Erikson's notable contributions to the field include E. ERIXsON, GANDHI's TnuTH (1969); E. ERIKsoN, YOUNG MAN LUTHER (1962). Luther has been of particular interest to psycho-historians. See N.O. BROwN, Lw- AGAINST DEATH 202 (1959). Both Brown and Erikson identify Luther's anal-compulsive personality with the genesis of his religious revelation. 8 Mario Puzo's best-seller The Godfather contained a character-a singer named Johnny Fontane-whose psyche was extensively probed. The resemblances between 1978] LIBEL In response to the first, new academic fields have grown; in response to the second, television has begun to explore the world, not by pallid documentary alone, but also by the creation of dramatic fic- tionalized productions. In the last three years, we have seen hypothesized dramas of the trial of Lee Harvey Oswald, and of four days in the lives of Oswald and Jack Ruby immediately preceding the assassination of former President Kennedy. The life of Martin Luther King has been the subject of a fictionalized documentary, and one "mini-series" explored the Watergate-like activities of a thinly-veiled President Richard Monckton. One may choose to distinguish psychological speculation about undisguised historical persons from the superficially fictional dramatization,9 yet surely both manifest the same modem impulse to expose the private mind to public scrutiny. There can be no question that public interest in such speculations and dramatizations will continue. There is also no question that much of this modem culture, popular and serious, runs headlong into the most fundamental tenets of libel law. This Essay considers the collision between one particular art form-the novel of "faction" 10-and libel, yet its general perspective is applicable to most of the formats mentioned above. I have chosen the novel of faction-indeed, one particular novel, The Public Burning, by Robert Coover-because it constitutes the best example I know of the myriad problems presented; it is also a clear portent of the future direction the creative novel in our time is likely to take. The book is an all-encompassing rendition of the 1950s trauma in American political and moral life. It centers on the the fictional Fontane and the real life Frank Sinatra were barely disguLsed. judy Garland was the (not very well concealed) subject matter of another best seller, Valley of the Dolls. Both Godfather and Valley became motion pictures. The world-renowned motion picture "Citizen Kane" was the unconcealed rendition of the life of William Randolph Hearst, and resulted in an "attempt to keep [it] off the screen by threats of boycott and of libel litigation." Tdesman, Democracy and Defamation: Fair Game and Fair Comment II, 42 CoLum. L. REv. 1282, 1317 & n.141 (1942). For F. Scott Fitzgerald's use of "real" persons in his classic novel The Great Gatsby, see H.D. Pirpn, TmE GAT GATSBY: THE NOVEL, THE CRITICs, BACxcROUND 171-97 (1970). 9 See text following note 53 infra. 10 Unlike other literary forms, the novel generally is a device uniquely useful for representing fact and fiction as a single mode of experience. See R. ScHOLrS & R. KELLOGG, THE NATuBE oF NABmAT- 58 (1966). One might describe the novel of "faction" as one that adheres fairly closely to historical fact as a foundation for psychological speculation about-or "mythologizing" of-the real persons and events it describes. This description accommodates not only The Public Burning, but also the book that may have spawned the term: Alex Haley's Roots. See L. Morrow, Licing With the "PeculiarInstitution", Tmm, Feb. 14, 1977, at 76. 1068 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 126:1065 famous case of Julius and Ethel Rosenberg. "Richard Nixon" and another, unnamed, narrator tell Coover's story in alternating chap- ters. Much of the novel is factual, and recites bits of courtroom testimony, political speeches, and some writings of the time; much is a phantasmagoria that reaches a sexual and dramatic climax-when Julius and Ethel Rosenberg are electrocuted in Times Square. The electrocution is accompanied by a ritualistic and orgiastic display of both hatred for the victims and mindless reaffirmation of the American Dream.