In Rosenbloom v. Virginia, 1966, the U.S. Supreme Court considered whether a state could constitutionally impose criminal liability for defamation on an individual who published false and defamatory information about another person without malice or reckless disregard of truth or falsity. The case involved George Rosenbloom, a distributor of nudist magazines in Philadelphia who was arrested by local police and charged with selling obscene material. After his arrest, several newspapers published articles falsely stating that he had been convicted of selling obscenity when in fact he had only been charged with the crime at that point. Rosenbloom sued for libel but lost both at trial and on appeal because under Virginia law it was not necessary to prove actual malice (knowledge that statements were false or made with reckless disregard for their truth) to win a defamation suit against someone discussing matters of public concern. The Supreme Court reversed these decisions holding that the First Amendment required proof of actual malice before damages could be awarded in such cases even if they did not involve public officials or figures but dealt instead with private individuals caught up in events attracting significant public attention.

In the dissenting opinion for Rosenbloom v. Virginia, 1966, Justice Harlan argued that the majority's decision to extend First Amendment protections to defamatory statements about private individuals involved in matters of public concern was misguided. He contended that this approach failed to adequately consider the reputational interests of private citizens and could potentially discourage them from participating in public affairs due to fear of defamation. Furthermore, he criticized the majority's reliance on a "public interest" standard as being too vague and subjective. Instead, he proposed a more nuanced approach where different standards would apply depending on whether or not the person defamed was a public figure or official versus an ordinary citizen.