[F]alse, slanderous, libelous, inflamatory [sic] and derogatory statements and allegations of and concerning the plaintiff ... that the defendant knew ... were false and untrue and that same were made with the specific and malicious intent to harm the plaintiff in his personal life and in his profession as an attorney ... and for the further express and malicious purpose of harming and damaging the plaintiff's application and chances to be appointed as the United States Attorney for the Middle District of North Carolina.
Although this is a civil lawsuit between private parties, the Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that that law has been applied in a civil action and that it is common law only, though supplemented by statute [citations]. The test is not the form in which state power has been applied, but, whatever form, whether such power has in fact been exercised. See Ex parte Virginia, 100 U.S. 339, 346–347 [25 L.Ed. 676], American Federation of Labor v. Swing, 312 U.S. 321 [61 S.Ct. 568, 85 L.Ed. 855].
We have no quarrel with the proposition that a state's interest in protecting its citizens from common law torts justifies overriding these First Amendment considerations, when knowing falsity is alleged, and although expressing no opinion one way or the other, we are not to be understood as implying that Stern's [the plaintiff's] common law theories are unmeritorious. A similar overriding of the right to petition might likewise be sustainable in federal legislation which clearly and narrowly intended the effect.
It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse freedom. [citations] Reasonably limited, it was said by Story [citations] ... this freedom is an inestimable privilege in a free government; without such limitation, it might become the scourge of the republic.
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