Cite as: 509 U. S. 259 (1993)
Opinion of the Court
tioner's legal theory is that "[t]hese false and prejudicial statements inflamed the populace of DuPage County against" him, ibid.; see also id., at 14, thereby defaming him, resulting in deprivation of his right to a fair trial, and causing the jury to deadlock rather than acquit, id., at 19.
Fitzsimmons' statements to the media are not entitled to absolute immunity. Fitzsimmons does not suggest that in 1871 there existed a common-law immunity for a prosecutor's, or attorney's, out-of-court statement to the press. The Court of Appeals agreed that no such historical precedent exists. 952 F. 2d, at 967. Indeed, while prosecutors, like all attorneys, were entitled to absolute immunity from defamation liability for statements made during the course of judicial proceedings and relevant to them, see Burns, 500 U. S., at 489-490; Imbler, 424 U. S., at 426, n. 23; id., at 439 (White, J., concurring in judgment), most statements made out of court received only good-faith immunity. The common-law rule was that "[t]he speech of a counsel is privileged by the occasion on which it is spoken . . . ." Flint v. Pike, 4 Barn. & Cress. 473, 478, 107 Eng. Rep. 1136, 1138 (K. B. 1825) (Bayley, J.).8
The functional approach of Imbler, which conforms to the
common-law theory, leads us to the same conclusion. Comments to the media have no functional tie to the judicial process just because they are made by a prosecutor. At the
8 "[Absolute immunity] does not apply to or include any publication of defamatory matter before the commencement, or after the termination of the judicial proceeding (unless such publication is an act incidental to the proper initiation thereof, or giving legal effect thereto); nor does it apply to or include any publication of defamatory matter to any person other than those to whom, or in any place other than that in which, such publication is required or authorized by law to be made for the proper conduct of the judicial proceedings." Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 Colum. L. Rev. 463, 489 (1909) (footnotes omitted). See, e. g., Viosca v. Landfried, 140 La. 610, 615, 73 So. 698, 700 (1916); Youmans v. Smith, 153 N. Y. 214, 220-223, 47 N. E. 265, 267-268 (1897). See also G. Bower, Law of Actionable Defamation 103, n. h, 104-105 (1908).
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