First Amendment Fall 2024: Assignments For November 18, 19 & 20

 --Christian Legal Society v. Martinez (link); Freedom of Speech of Government Employees: Pickering (link);. Connick (link); Garcetti (link); Discussion of 6th Circuit decision in Meriwether v. Hartrop (blog post to be provided)

-- Obscenity and Pornography: Read the cases (Stanley, Smith, Miller, Jenkins) and discussion set forth here (link) ; handout articles from Washington Post (Halverson) and ABA (Stone article)

--Preview:  Free Speech Coalition v. Paxton (Issue: Whether the Supreme Court should stay the U.S. Court of Appeals for the 5th Circuit’s judgment allowing Texas to enforce the age verification requirements of H.B. 1181 on commercial websites that contain sexual content).

Garcetti v. Ceballos

Here a District Attorney was sanctioned for writing an internal memo about inaccuracies in an affidavit used to obtain a search warrant.

“The question presented by the instant case is whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee's official duties.” (p.1)

 Test (p.2):

“Pickering and the cases decided in its wake identify two inquiries to guide interpretation of the constitutional protections accorded to public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer's reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.  This consideration reflects the importance of the relationship between the speaker's expressions and employment. A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity's operations....”

Page 3: “So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.”

Page 3: “The Court's decisions, then, have sought both to promote the individual and societal interests that are served when employees speak as citizens on matters of public concern and to respect the needs of government employers attempting to perform their important public functions. Underlying our cases has been the premise that while the First Amendment invests public employees with certain rights, it does not empower them to "constitutionalize the employee grievance."”

The problem for Ceballos in this case is his speech was not that of a citizen speaking out about a matter of public concern but a memo to his supervisors concerning a matter that was part of his professional duties. Thus, under the Court’s test he had no First Amendment cause of action based upon his employer’s “reaction to the speech.” P. 2.

Page 3: “The controlling factor in Ceballos' case is that his expressions were made pursuant to his duties as a calendar deputy. That consideration—the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case—distinguishes Ceballos' case from those in which the First Amendment provides protection against discipline. We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

Does this make sense? Should Ceballos have written his memo as an open letter to the editor of a local newspaper instead of as an internal memo?

What about a public school teacher in a biology class who, when asked a question by a student about intelligent design, replies that he personally thinks it is a reasonable response to Darwinian evolution? If he is fired or disciplined for this remark, does he have any First Amendment protection?

Connick v. Myers

When the government acts as an employer it may regulate speech more extensively than it could when acting as a regulator.

When government restricts speech as an employer, the Court applies a two-part test: 

 First, if the employee speech deals with a matter of “public concern” upon which “free and open debate is vital to informed decision-making by the electorate,” the Court applies a balancing test – the State bears the burden of demonstrating that its interest in promoting workplace efficiency outweighs the First Amendment interest in open debate.  [“In performing the balancing, the statement will not be considered in a vacuum:  the manner, time, and place of the employee’s expression are relevant, as is the context in which the dispute arose.”  Rankin, 483 U.S. at 388].

Second, when a government employee speaks “not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances” the courts will not review a personnel decision. Suppose an office clerk makes a mildly sexist joke in the office break room? If he is discharged when a female co-worker complains to HR, does he have first amendment rights?

 Should government employers be allowed to ban workplace speech that offends co-workers?

 [Charles Sykes: “Once feelings are established as the barometer of acceptable behavior . . . speech and thought are only as free as the most hypersensitive group on campus will permit.”]

Pickering

Public school teacher writes letter to the editor of local newspaper critical of School Board’s handling of school tax revenues.

He was fired because the Board concluded that the publication of the letter was "detrimental to the efficient operation and administration of the schools of the district."

First question—suppose a citizen had written the same letter criticizing the School Board—does the First Amendment protect this kind of expression from state laws restricting this kind of speech?

Do citizens waive their First Amendment rights when they go to work for the government?

Justice Holmes once said: “A policeman may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”  What does he mean by this?

So we could have a categorical rule one way or the other—full speech rights or zero speech rights for public employees. But that is not the way the Court chooses to go. What is the Court’s approach to this issue? Page 2:

“To the extent that the Illinois Supreme Court's opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that has been unequivocally rejected in numerous prior decisions of this Court. E. g., Keyishian v. Board of Regents, 385 U.S. 589 (1967). "The theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected." At the same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”

 This is the so-called “Pickering balancing test.” Like most balancing tests, it results in a certain amount of unpredictability (Scalia once criticized a similar balancing test by saying it is like trying to decide whether a particular rock is heavier than a particular string is long.)

 Contrast government-as-sovereign with government-as-employer—the government-as-employer has an interest in efficient operation of the workplace that must be balanced against the free speech rights of its employees to speak about issues of public concern as citizens in a free society.

 Here there was no showing that the letter to the editor “impeded the teacher's proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally.” (p. 3)

Efficiency vs. conformity—coercion in the Leviathan state may take the form of withholding employment from those who critical of government policy or government officials.

Christian Legal Society Decision: Information of Disinformation

 On page one of our linked opinion, Justice Ginsburg says this: "CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings' policy."

Is this information? Or misinformation? 

If CLS had prevailed on its free speech/expressive association claims, would those rights belong only to CLS? Or would every other student organization have the exact same rights under the Free Speech Clause as CLS?

Garcetti Hypos

Consider two hypos involving Assistant Dean Mary Smith, the Admissions Director at a state university.

Case One

Assistant Dean Smith is asked by Dean Tom Jones to write a description of the school's "diversity policy" for inclusion in the minority admission packet sent to minority students the school wishes to attract. Dean Smith describes the schools commitment to diversity accurately, but proceeds to criticize the policy as amounting to unfair discrimination against non-minority applicants. The packet is sent to prospective minority students, many of whom are offended by Dean Smith's criticism of the program.

Case Two

Dean Smith writes a letter to the editor of the state's largest newspaper accurately describing the school's diversity program and criticizing it as amounting to unfair discrimination against non-minority students. Many readers respond to this article, some of them are upset by the policy's unfair reverse discrimination, some of them critical of Dean Smith for having aired her concerns in a public forum.

In both cases Dean Smith is fired or demoted for expressing her criticism of the school's diversity policy.

Apply the First Amendment.

Citizens United Excerpts

The law at issue in Citizens United made it a felony for certain speakers (corporations but not media corporations) to engage in election speech within  30 or 60 days before an election. Justice Kennedy's majority opinion described the draconian nature of the law:

The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations--including nonprofit advocacy corporations--either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate's defense of free speech. These prohibitions are classic examples of censorship.

 

And here is how he explains the Court's decision to strike down this criminalization of political speech: 

  Section 441b's prohibition on corporate independent expenditures is thus a ban on speech. As a "restriction on the amount of money a person or group can spend on political communication during a campaign," that statute "necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached." Buckley v. Valeo, 424 U. S. 1, 19 (1976) (per curiam). Were the Court to uphold these restrictions, the Government could repress speech by silencing certain voices at any of the various points in the speech process.  If §441b applied to individuals, no one would believe that it is merely a time, place, or manner restriction on speech. Its purpose and effect are to silence entities whose voices the Government deems to be suspect.

     Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. The First Amendment " 'has its fullest and most urgent application' to speech uttered during a campaign for political office."

     For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are "subject to strict scrutiny," which requires the Government to prove that the restriction "furthers a compelling interest and is narrowly tailored to achieve that interest." While it might be maintained that political speech simply cannot be banned or restricted as a categorical matter, the quoted language provides a sufficient framework for protecting the relevant First Amendment interests in this case. We shall employ it here.

     Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints. Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others.  As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content.

     Quite apart from the purpose or effect of regulating content, moreover, the Government may commit a constitutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker's voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.

 

What are your thoughts?

Meriwether v. Hartrop (compelled pronoun case)

                                                         Judge Amul Thapar

 

Professor at state university was disciplined because he refused to use a student's "preferred pronouns." The Sixth Circuit wrote a powerful opinion protecting academic free speech. Here is the court's description of the facts:

At the start of the school year, Shawnee State emailed the faculty informing them that they had to refer to students by their “preferred pronoun[s].”  Meriwether asked university officials for more details about the new pronoun policy, and the officials confirmed that professors would be disciplined if they “refused to use a pronoun that reflects a student’s self-asserted gender identity.”  What if a professor had moral or religious objections? That didn’t matter: The policy applied “regardless of the professor’s convictions or views on the subject.”

 Here are a few great excerpts from the decision:

1. "THAPAR, Circuit Judge. Traditionally, American universities have been beacons of intellectual diversity and academic freedom. They have prided themselves on being forums where controversial ideas are discussed and debated. And they have tried not to stifle debate by picking sides. But Shawnee State chose a different route: It punished a professor for his speech on a hotly contested issue. And it did so despite the constitutional protections afforded by the First Amendment. The district court dismissed the professor’s free-speech and free-exercise claims. We see things differently and reverse."

2. "“Universities have historically been fierce guardians of intellectual debate and free speech.”  Speech First, Inc. v. Schlissel, 939 F.3d 756, 761 (6th Cir. 2019).  But here, Meriwether alleges that Shawnee State’s application of its gender-identity policy violated the Free Speech Clause of the First Amendment.  The district court rejected this argument and held that a professor’s speech in the classroom is never protected by the First Amendment.  We disagree:  Under controlling Supreme Court and Sixth Circuit precedent, the First Amendment protects the academic speech of university professors.  Since Meriwether has plausibly alleged that Shawnee State violated his First Amendment rights by compelling his speech or silence and casting a pall of orthodoxy over the classroom, his free-speech claim may proceed."

3. "A decade later, in a case involving a similar New York law banning “subversive” activities, the Supreme Court affirmed that the Constitution protects “academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned.”  Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967).  It characterized academic freedom as “a special concern of the First Amendment” and said that the First Amendment “does not tolerate laws that cast a pall of orthodoxy over the classroom.”  Id.  After all, the classroom is “peculiarly the ‘marketplace of ideas.’”  Id.  And when the state stifles a professor’s viewpoint on a matter of public import, much more than the professor’s rights are at stake.  Our nation’s future “depends upon leaders trained through wide exposure to [the] robust exchange of ideas”—not through the “authoritative” compulsion of orthodox speech.  Id. (citation omitted); accord Sweezy, 354 U.S. at 249–50 (plurality opinion) (“To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.”)."

4. " One final point worth considering:  If professors lacked free-speech protections when teaching, a university would wield alarming power to compel ideological conformity.  A university president could require a pacifist to declare that war is just, a civil rights icon to condemn the Freedom Riders, a believer to deny the existence of God, or a Soviet émigré to address his students as “comrades.”  That cannot be.  “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe” such orthodoxy.  Barnette, 319 U.S. at 642." 

5. "The need for the free exchange of ideas in the college classroom is unlike that in other public workplace settings.  And a professor’s in-class speech to his students is anything but speech by an ordinary government employee.  Indeed, in the college classroom there are three critical interests at stake (all supporting robust speech protection):  (1) the students’ interest in receiving informed opinion, (2) the professor’s right to disseminate his own opinion, and (3) the public’s interest in exposing our future leaders to different viewpoints.  See Lane v. Franks, 573 U.S. 228, 236 (2014); Sweezy, 354 U.S. at 250 (plurality opinion).  Because the First Amendment “must always be applied ‘in light of the special characteristics of the . . . environment’ in the particular case,” Healy, 408 U.S. at 180 (alteration in original) (quoting Tinker, 393 U.S. at 506), public universities do not have a license to act as classroom thought police.  They cannot force professors to avoid controversial viewpoints altogether in deference to a state-mandated orthodoxy.  Otherwise, our public universities could transform the next generation of leaders into “closed-circuit recipients of only that which the State chooses to communicate.”  Tinker, 393 U.S. at 511."  

6. "Purportedly neutral non-discrimination policies cannot be used to transform institutions of higher learning into “enclaves of totalitarianism.”  Tinker, 393 U.S. at 511."

  Here is a link to the 6th Circuit's opinion. And here is a link to a short article analyzing the opinion.

 I have not assigned this opinion, but I encourage you to read it at some point during your journey through the halls of academia. There has never been a time in my 42 years of teaching when this opinion was more important and more necessary for the preservation of the university as a free and open marketplace of ideas.

Citizens United and Discrimination Against Certain Classes of Speakers

Notice that under the law struck down in Citizens United, different classes of speakers are treated differently with respect to the right to engage in political speech shortly before elections:

1. Bill Gates could spend billions to produce an anti-Trump film--Bad Orange Man--and make it available on demand for free

2. The New York Times could use corporate funds to produce an anti-Trump film--Mean Tweet Man--and make it available on its corporate web site for free

3. But if Hobby Lobby wanted to use its corporate funds to subsidize an anti-Harris film--Kamradalla--and make it available on demand, it commits a felony

This kind of discrimination against different classes of speakers (individuals, media corporations, and non-media corporations) is difficult to justify under the Free Speech Clause. It is particularly difficult to defend two classes of corporations--media corporations (including for-profit media corporations that are often owned by non-media conglomerate corporations or by billionaires like Jeff Bezos) and "non-media" corporations which wish to fund speech that a media corporation would be free to do.

If we are going to ban corporate political speech during election seasons, let's not discriminate between media corporations and non-media corporations. Let's ban them all, or ban none. 60 Days without any political news! Thoughts?

Citizens United: Notes and Questions

The First Amendment provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Does the first amendment protect speakers or “speech?"

Should it matter whether the speaker is a corporation or a natural (i.e. human) person?

Who is the speaker in the movie Hillary?

The corporation that paid to make the movie available to the public?

The director and producer of the film?

The writers who wrote the screenplay (the narration, etc.)?

What about listeners? Do willing members of the audience for speech have a right to receive speech?

For example, if government bans corporations from distributing films such as Hillary, doesn’t this restriction deprive natural persons, such as me and you, access to the film? And remember, since this movie was "on demand" on cable tv, the listener actually had to seek it out and press play to receive it.

As the Supreme Court once put it: "The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers." (Lamont v. Postmaster General, 381 U.S. 301)

Suppose the State of Mississippi forbids the possession of books written by Karl Marx. Of course, Marx is not around to sue to challenge this censorship law's constitutionality under the First Amendment. Do I have a right, as a willing audience for Marx's books [remember this is only a hypothetical], to challenge the law under the First Amendment?

Prof. Kathleen Sullivan says that one difference between the majority and the dissent is that the majority has a vision of free speech as liberty and the dissent has a vision of free speech as equality (the "antidistortion" rationale). As she puts it:

"The outcome of Citizens United is best explained as representing a triumph of the libertarian over the egalitarian vision of free speech." 

Is Sullivan concerned about equality or equity? What is the difference between these two concepts? Subtract the "al" from equality under the law and you get something far different from equality under the law. In this case it means taking free speech rights from those who have the resources to speak in order to somehow make the marketplace of ideas more fair.

In other words, the dissent is okay with government prohibiting freedom of speech by wealthy corporations, because this amounts to a redistribution of "speaking power" from powerful corporations to natural persons. 

Of course, media corporations (New York Times, CBS, NBC, Fox) were exempt from the restriction, and some might conclude that this allows certain powerful media corporations to select which political news and viewpoints are "fit to print" for natural persons to see or hear. Perhaps non-media corporations have a different view of what is fit for audiences to see? Perhaps audiences would like to decide for themselves?

And here is the money excerpt from Justice Kennedy's opinion:

Section 441b's prohibition on corporate independent expenditures is thus a ban on speech. As a "restriction on the amount of money a person or group can spend on political communication during a campaign," that statute "necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached." Buckley v. Valeo, 424 U. S. 1, 19 (1976) (per curiam). Were the Court to uphold these restrictions, the Government could repress speech by silencing certain voices at any of the various points in the speech process.  If §441b applied to individuals, no one would believe that it is merely a time, place, or manner restriction on speech. Its purpose and effect are to silence entities whose voices the Government deems to be suspect.

     Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. The First Amendment " 'has its fullest and most urgent application' to speech uttered during a campaign for political office." 

     For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are "subject to strict scrutiny," which requires the Government to prove that the restriction "furthers a compelling interest and is narrowly tailored to achieve that interest." While it might be maintained that political speech simply cannot be banned or restricted as a categorical matter, the quoted language provides a sufficient framework for protecting the relevant First Amendment interests in this case. We shall employ it here. Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints. Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others.  As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content....The First Amendment protects speech and speaker, and the ideas that flow from each.

 

And here is the key to Justice Stevens' dissent: 

In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.

If you agree with Justice Stevens, would you also support locking the doors of media for-profit corporations such as the New York Times, NBC, and Fox News? Is there any reason to treat some corporations better than others? What is that reason?

 

 

More of CLS Decision

 Now consider this passage in the CLS case at p. 4: 

"Third, this case fits comfortably within the limited-public-forum category, for CLS, in seeking what is effectively a state subsidy, faces only indirect pressure to modify its membership policies; CLS may exclude any person for any reason if it forgoes the benefits of official recognition. The expressive-association precedents on which CLS relies, in contrast, involved regulations that compelled a group to include unwanted members, with no choice to opt out."

So, if CLS renounced its identity as the "Christian" Legal Society in favor of the "All-Comers" Legal Society, it could [receive its funding for playground safety surfaces]....um...I mean it could receive the generally available funding and access benefits of official recognition. No big deal!

Any cases we read this semester come to mind?

Another way of thinking of this is that CLS has two rights: 1. the right to participate in a limited public forum, and 2. the right of expressive association. And Hasting told them to choose one right or the other but not both.

Is this like a prosecutor saying "if you want the right to counsel you must waive the right to be protected against unreasonable searches and seizures. You choose!" Or "if you wish to continue receiving welfare benefits for the baby you have you must agree to abort the baby you are carrying. You choose."

NY Times v Sullivan (p.1316)

 Before we get to Sullivan, let me pose a hypothetical.

 Suppose the New York Times accurately reports that Senator X has taken bribes from several defense contractors.  As a result of this story, Senator X's career and personal reputation are destroyed.

Senator X, who admits the truth of the story, sues the newspaper, alleging that it published the story knowing full well that it would destroy him.  The newspaper moves to dismiss on the ground that its speech was protected by the First Amendment.  What ruling?  Why?

Now suppose the story was false.  Same ruling?  Why?

 Is there any value in false speech?

 

[FN 19 of the full text opinion in Sullivan quotes John Stuart Mill: “Even a false statement may be deemed to make a valuable contribution to public debate since it brings about the clearer perception and livelier impression of truth, produced by its collision with error.”]  See also p. 1319 (Sullivan: “[N]either factual error nor defamatory content suffices to remove the constitutional shield.”)

 What do you think of Mill’s perception?  Is it applicable when the falsehood relates to the character of an individual?

Sullivan is an interesting case, because it is set in explosive times – Montgomery, Alabama in 1964.

Supporters of the status quo desperately wanted to silence advocates of civil rights and racial equality.

 Was Sullivan’s lawsuit really a simple civil action for libel, or is this really a seditious libel case?

[ seditious libel: "a criminal offense to publish or otherwise make statements intended to criticize or provoke dissatisfaction with the government. Truth was not a defense and, in fact, made the offense worse."]

In one sense, it may be unfortunate that the Court used this case as a vehicle for making law for all defamation actions.  Because this case was not about Sullivan’s reputation being destroyed by false statements of fact, it is about the suppression of a political movement.

 

            What is the rule of Sullivan?

 

Page 1319:

The constitution “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”  Other cases establish that actual malice must be proven by “clear and convincing” evidence.

 The key element here is the scienter requirement – negligence will not suffice – the plaintiff must prove, by clear and convincing evidence (i.e. not by a mere preponderance), that the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether it was false or not.  What does that mean?

 

            [See Nowak at p. 1038:

“The standard seems to be one of the knowing lie – at the time of the publication defendant must have known that the statement was false, or must have had serious doubts as to the statement’s truth and have published it despite these doubts.”]  [Id. at 1039:  “Reckless disregard” means that the defendant has a “high degree of awareness” of probable falsity.] Pl. must prove that the defamatory statement was in fact false and that it was made with reckless disregard.

 

Is Sullivan over-protective of free speech?  Why should negligent false and defamatory statements be protected?

            “It has been suggested that the Court undervalued the individual’s interest in reputation; failed to recognize that in measuring chilling effect one must consider the deterrence of false as well as true statements; and failed to recognize that its rule would drive capable people out of politics, thus undermining the very goals it sought to achieve.  Along similar lines, the Court might have retained strict liability but limited the amount and nature of recoverable damages.”  Stone T.M. at 104.

 

Does anyone think that Sullivan is under-protective of free speech? Why?

The “central meaning” of the First Amendment (p. 1319) – “the freedom to criticize government is essential to the existence of a free society.”

 

  Who is a public official for purpose of Sullivan?

 

 Am I a public official?

 

 Dean Moberly?  A public school teacher?  Police officer?

 

 The janitor?  A secretary or copy clerk?

 

[See Nowak at 1041 (discussing Rosenblatt v. Baer, 383 U.S. 75 (discharged supervisor of a county-owned ski resort is a public official)  (government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs): “Thus, while persons occupying low level technical positions might not be included in this category, any government employee with discretionary power in matters of public interest should be considered a public official.”]

 

   [Nowak at 1095 - suggests a public school teacher is a “public official” for this purpose]

 

 Suppose members of the news media (MSNBC perhaps) continually called a candidate for the Presidency "Hitler, literally Hitler." If the victim of these many, clearly untrue, libelous statements wins a large judgment in a libel action, are these statements protected by the First Amendment under New York Times? Should they be protected?