free speech Archives - The National Law Forum

Employment Tip of the Month – February 2024

Q: Can my company treat employees adversely because of their personal political beliefs? If they wear a shirt of their favorite candidate? Or proselytize about their candidate?

A: The short answer: There exists no “First Amendment Right to freedom of expression” in a private workplace, and that extends to political expression. See Manhattan Community Access Corp. v. Halleck, 139 S.Ct. 1921 (2019) (Only “State actors subject to First Amendment constraints.”)

So, yes, legally a private employer can refuse to hire Democrats or Republicans, and can fire an employee for wearing a shirt of their candidate or vocalizing a particular political position.

On the other hand, other laws can apply, such as the right to “concerted action” under the National Labor Relations Act. Overt adverse action also could be ripe for allegations of selective enforcement, such as “you only selectively enforce this rule against me because I am ___________”, where Title VII covers race, sex, religion, color and national origin; ADA covers disability; ADEA age, etc. Some political positions could easily bleed over into religious beliefs.

Even if legally permissible for a private employer to discriminate against holders of one particular political belief, from a practical management perspective, it cannot be recommended, and would be loaded with risk. Also, it could simply make for bad optics and make it harder to attract and retain the best talent.

Finally, this answer changes entirely for public employers and government employers, where employees do possess First Amendment rights, so long as, in general, they are speaking (1) as a private citizen, (2) about a matter of public concern, and (3) their speech does not interfere with the job. There are exceptions for high-ranking individuals, political appointees or someone trying to release classified information, though in many instances they would still be protected from retaliation.

As Foretold, California’s New Forced Speech Laws Are Being Challenged

Last year, I commented on the likely unconstitutionality of two California laws compelling forced speech:

The California legislature has of late adopted the tactic of driving behavior by compelling speech. SB 253 (Wiener), for example, compels disclosure of greenhouse gas emissions and SB 261 (Stern) requires disclosure of climate-related financial risks. Both of these requirements clearly compel speech arguably in contravention of the First Amendment to the U.S. Constitution. Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 61 (2006) (“Some of this Court’s leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say.”).

I had previously noted that SB 253 was very similar to an earlier bill that did not make it into law.

Yesterday, the Chamber of Commerce of the United States of America and several others filed suit in the Central District Court challenging these laws. In its complaint, the plaintiffs allege that the “State’s plan for compelling speech to combat climate change is unconstitutional – twice over.” The plaintiffs urge the court to apply “strict scrutiny” to both laws because they compel speech about a controversial subject – climate change. If the court applies strict scrutiny, the bills would be presumptively unconstitutional and may be upheld only by proof that they are narrowly tailored to serve compelling state interests. That is an exceedingly high hill to climb.

Because both bills quite obviously violate basic free speech rights, the question arises whether the authors knew or were grossly negligent in not knowing of the constitutional infirmities of the legislation. In 2020, I wrote Senator Wiener, the author of SB 253, that SB 260, “abridges free speech rights guaranteed by the U.S. and California Constitutions”. At the time, I was distressed that the legislative analyses for SB 260 failed to mention the constitutional infirmities of the bill. See Legislators Again Kept In Dark About Constitutional Infirmities Of Climate Corporate Accountability Act and Legislators Again Kept In Dark About Constitutional Infirmities of Climate Corporate Accountability Act.

U.S. Supreme Court Sides with Public High School Coach in Free Speech/Freedom of Religion Case

The U.S. Supreme Court issued a ruling which will have wide-ranging effects on the ability of governmental entities to react to religious and other speech of public employees. In Kennedy v. Bremerton Schools, the Court ruled that a public high school could not discipline or disfavor a football coach for his practice of kneeling on the 50-yard line and praying at the conclusion of each game, eventually growing to include most of the football team and opposing players as well. The school district had attempted to accommodate the coach’s desire for prayer, but concerns mounted when one parent complained that her son felt compelled to participate despite being an atheist. The coach was eventually placed on administrative leave and not extended an offer to return to coaching the next school year. Both the district court and the U.S. Court of Appeals for the Ninth Circuit rejected the coach’s First Amendment challenges.

With a 6-3 majority, the Supreme Court reversed. In doing so, the Court first found a violation of the Free Exercise Clause. The Court discounted the school district’s stated concerns that the coach’s practice could violate the Establishment Clause or interfere with students’ right of free exercise. The Court held that absent evidence of “direct” coercion the Establishment Clause was not implicated and then concluded that the coach’s position of authority over the players was insufficient to constitute direct coercion. The Court distinguished earlier cases involving prayers at football games and civic meetings, by emphasizing that the speech for which the coach was disciplined was not publicly broadcast or recited to a captive audience. Additionally, students were not required or formally expected to participate.

With respect to the Free Speech issue, the Court concluded that the coach’s prayers were not unprotected “government speech,” and in doing so applied a restrictive view of what could be considered “government speech.” The Court held that because the coach’s job duties did not include leading prayers, the fact that the speech occurred on the field immediately after the game was insufficient to transform it from private speech to government speech. “To hold differently,” the Court stated, “would be to treat religious expression as second-class speech and eviscerate this Court’s repeated promise that teachers do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’”

The decision, together with Shurtleff v. Boston decided earlier this Term, suggests a sharp break with past Court jurisprudence on the balance between the dictates of the Establishment and Free Exercise Clauses. Government entities should review their policies on religious activity on government property or by employees in connection with their positions in light of these two decisions.

Article By Ahmad Chehab, Scott R. Eldridge, and Robert T. Zielinski of Miller Canfield

For more civil rights legal news, click here to visit the National Law Review.

The Intersection of Libel Law and Politics

Libel Commentary

Since its beginning, the American Republic has debated sedition, free speech, and protection of reputation. After we cut our British roots we ensured our right to criticize our leaders, the politicians who control our government. The British crown demanded loyalty of its printers, but American courts would not tolerate such prosecutions as the notion of a truly free press emerged.

Today, we are witnessing an intense intersection of politics and libel law unlike anything we’ve seen since the 1960s. Politicians are suing for libel damages and being sued. The current overlap of politics and libel includes a push by the president of the United States to change libel law. Those who seek change, including President Trump, say they want to make it easier for plaintiffs to prevail and collect damages. Careful what you wish for, though, because such change would ease the path for plaintiffs seeking to collect damages from public officials such as Donald Trump.

Heading into the 2020 election, the Trump campaign filed three lawsuits in a 10-day period against mainstream media.

Legal scholars and pundits have opined that Trump’s pending libel complaints against The New York Times, The Washington Post, and CNN are weak or even dead on arrival. These analysts point out that Trump’s campaign is seeking damages due to political opinions, which are protected speech under the First Amendment.

As a life-long public figure and now public official, Trump (his re-election campaign is the plaintiff) must prove that the media defendants acted with actual malice, that is, reckless disregard for the truth or that they published information knowing it was false. The actual malice standard is well established through the First Amendment by a unanimous U.S. Supreme Court in New York Times v. Sullivan in 1964.

Win or lose in court, the president’s libel lawsuits also are political messaging, dramatic actions that complement his anti-press rhetoric. The stories about the libel suits are arguably more effective than the libel suits themselves in the president’s battles to discredit the mainstream press. In addition to political messaging, libel claims – even when they fail in court — can be a form of punishment.

Historical Context

Presidential involvement in libel litigation is rare, but not unprecedented. President Theodore Roosevelt was irritated by published allegations of corruption in the sale of the Panama Canal. He pushed the Justice Department to prosecute publisher Joseph Pulitzer and other newspapermen for criminal libel. Courts later quashed indictments.

After his presidency, Roosevelt was sued for libel by a New York political figure (William Barnes) who objected to being called corrupt by Roosevelt. The jury trial, in Syracuse in 1915, was grist for Dan Abrams’ book “Theodore Roosevelt for the Defense.” The jury ruled in Roosevelt’s favor; he seemed to thrive in legal combat, the book says.

Fifteen years ago, there was speculation about the prospect of President George W. Bush suing the National Enquirer. The Enquirer published a report based on unnamed sources who claimed that pressures of the job led Bush to drink, even though he said he gave up alcohol on his 40^th birthday.

“The president would be exceptionally ill-advised to file suit over this story, even if he knows . . . it’s false,” wrote First Amendment lawyer Julie Hilden in 2005.

She suggested such a suit would likely fail because its “actual malice” claim appeared to be weak. Plus, she warned, the suit would expose the president to civil discovery. Bush did not sue.

After the 1964 election, Republican presidential candidate Barry Goldwater successfully sued Fact Magazine and its publisher for an article questioning Goldwater’s mental fitness to hold office (Goldwater v. Ginzburg). Federal courts found that Goldwater’s complaint met the actual malice standard, awarding $75,000. The U.S. Supreme Court, in 1970, declined to hear the case.

Trump’s Track Record

In seven earlier speech-related cases filed by Donald Trump or his companies before he became president, four were dismissed on the merits, two were voluntarily withdrawn, and one was an arbitration won by Trump by default. These findings were compiled by Susan E. Seager, a First Amendment attorney who teaches media law at University of Southern California. Indeed, this appears to be a way of life for the highly litigious Trump, who has been involved in approximately 4,000 legal battles over the past 30 years, both as a plaintiff and defendant. An exhaustive analysis by USA Today detailed those seven libel cases where he initiated the lawsuits and seven more where he was named defendant. These don’t even include the threats of suits, the so-called “I’ll sue you” effect that can too often chill speech.

A common thread of these cases is the pursuit of jumbo damages. Trump alleged $5 billion in damages (in New Jersey state court) because author Timothy O’Brien and his book publishers cast doubt on the size of the real estate mogul’s wealth. Trump lost after five years of litigation but assessed the outcome this way to The Washington Post: “I spent a couple of bucks on legal fees but they spent a whole lot more. I did it to make [O’Brien’s] life miserable, which I’m happy about.”

Judicial Nominations

Judicial appointments are a priority for the Trump Administration. Interestingly, a judge nominated by the president in 2018 dismissed (with prejudice) a case filed by a Republican congressman.

On August 5, 2020, U.S. District Court Judge C.J. Williams of the Northern District of Iowa dismissed Congressman Devin Nunes’ defamation complaint against Esquire writer Ryan Lizza and its publisher. The judge said published criticism of Nunes (R-CA) was not actionable (Devin G. Nunes v. Ryan Lizza and Hearst Magazine Media, Inc).

Interestingly, part of this recent case deals directly with President Trump and his tweets. I’ll quote Judge Willliams’ opinion regarding Trump’s tweet that “Obama had my ‘wires tapped’ in Trump Tower:”

First, to the extent defendants assert President Trump “made up” the tweet,

the statement is not of an concerning plaintiff (Nunes). Second, plaintiff has

not alleged that the statement is false. Third, even if the statement is factually inaccurate, the statement that plaintiff’s theory about surveillance of the Trump campaign “began” with President Trump’s tweet is not defamatory.

Other Political Cases

Sarah Palin, John McCain’s vice-presidential running mate in 2008, sued The New York Times for defamation, claiming that a 2017 editorial maliciously associated her with a mass shooting that injured Congresswoman Gabrielle Giffords (D-AZ). A federal judge dismissed her case, but a 3-0 panel of the U.S. Second Circuit Court of Appeals reversed, thus reviving the case (Sarah Palin v. The New York Times).

Besides the characters involved – and the reversal in federal court – this case is interesting because The New York Times published a correction: “An earlier version of this editorial incorrectly stated that a link existed between political incitement and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established.”

To prevail, Palin – a public figure — must show that the newspaper acted with actual malice.

Meanwhile, a former contestant on “The Apprentice,” Summer Zervos sued President Trump in 2017 claiming she was defamed because candidate Trump said her allegations of his sexual misconduct in 2007 were lies. In 2019, a 3-2 majority of a New York State appeals court rejected the argument from Trump’s counsel that a sitting president cannot be sued in state court (Zervos v. Trump).

In addition to its spotlight on the Supremacy Clause, the Zervos lawsuit also examines the boundaries of opinion-as-defense in defamation disputes. Trump’s lawyers argue that his campaign rhetoric and opinions are protected by the First Amendment.

Nicholas Sandmann, a student at Covington Catholic High School in northern Kentucky, alleged that he was defamed by news coverage and social media sharing of accounts of his encounter near the Lincoln Memorial with a Native American activist in early 2019. Sandmann sued The Washington Post for $250 million; NBC and CNN for $275 million each. CNN and The Washington Post settled for undisclosed terms.

Are media rattled by all this litigation? Yes, I think that’s pretty apparent. How could they not be in this anti-press environment? Libel claims are part of a general, overarching criticism of press, reporting the news, and media prerogatives.

From a bottom-line standpoint, media must pay for legal defense. Newspaper publisher McClatchy — a defendant in one of Congressman Devin Nunes’ myriad libel suits — filed for bankruptcy in February. The Poynter Institute for journalism published commentary in 2019 that McClatchy could hire 10 reporters for the money it would spend on the Nunes lawsuit.

A small newspaper in Iowa (Carroll Times Herald) won a libel case but created a GoFundMe appeal in 2019 because the legal defense drained its resources. Response to the solicitation — mainly small donations, from across the country — was impressive.

Most certainly the Sandmann cases have drained considerable resources from some of the most noted media companies in the country as those out-of-court settlements show.

Non-political Cases

We also see a flurry of high-dollar claims not directly related to political speech.

On August 14, the unanimous North Carolina Supreme Court upheld a jury’s libel decision against the Raleigh newspaper (Beth Desmond v. The News & Observer Publishing Company). The Ohio private liberal arts Oberlin College is appealing the whopping $44 million in damages awarded to a local bakery stemming from an alleged shoplifting attempt by three African American students (Gibson’s Bakery v. Oberlin College). Rolling Stone paid dearly for its flawed article about a campus rape at the University of Virginia.

Is libel law likely to change?

Fundamental change is not likely in the near future. Justice Clarence Thomas suggested it’s time for the Supreme Court to examine/roll back the New York Times v. Sullivan standard created in 1964. The premise is that current strict standards intended to protect free speech and free press make it nearly impossible for public figures and public officials to prevail in libel cases.

Justice Thomas’ colleagues on the Court have not publicly joined him in urging review of Sullivan.

Libel cases are percolating in federal and state courts that eventually could ripen for Supreme Court review. The Roberts Court has been protective of speech, including commercial and political speech, such as:

Citizens United v. FEC, 2010 (political contributions)
Snyder v. Phelps, 2010 (picketing at funerals)
Sorrell v. IMS Health, 2011 (data mining, drug marketing)
Reed v. Town of Gilbert, 2015 (sign regulations cannot be based on content)
Matal v. Tam, 2017 (trademarks)

We all can be grateful that American libel law does not mirror British libel law, where the burden of proof is on the defendant rather than the plaintiff. Surely by now we have all seen the clickbait coverage of actor Johnny Depp’s libel case against The Sun (Johnny Depp v. News Group Newspapers) for its 2018 reportage of his contentious divorce, which included a headline calling him a “wife beater.”

American libel law is not British libel law. And we need to keep it that way.

© Aimee Edmondson, PhD

Article by Aimee Edmondson, PhD E.W. Scripps School of Journalism at Ohio University and National Law Review Guest Contributor.

For more on free speech, see the National Law Review Constitutional Law section.

Sticks and Stones May Break Bones, But Words May Constitute Unlawful Discrimination

In recent months, there have been several news stories about the legal implications of inappropriate and/or offensive language in our society, generating discussion about whether such language is, or should be, unlawful in certain circumstances. This past fall, the Massachusetts Legislature held a committee hearing on a widely-publicized bill which sought to penalize the use of “bitch,” by imposing a fine of up to $200 for any person who “uses the word ‘bitch’ directed at another person to accost, annoy, degrade or demean” another person.

While this proposed legislation, fraught with Constitutional issues involving the exercise of free speech, was largely decried and gained no traction, it does highlight an important question: In what circumstances may offensive and demeaning comments constitute unlawful discrimination? In fact, in January, Chief Justice John Roberts, during oral arguments in Babbe v. Wilkie, asked the hypothetical question whether the phrase “OK Boomer” would qualify as age discrimination.

The answer to Chief Justice Robert’s question is not a bright-line “yes” or “no.” Context matters. For example, in connection with a hostile work environment claim, one of the central legal issues is whether the conduct in question was severe or pervasive. As a general rule, a single, isolated comment will not be actionable as creating a hostile work environment, but in some instances, it may. See Augis Corp. v. Massachusetts Comm’n Against Discrimination, 75 Mass. App. Ct. 398, 408-409 (2009) (noting that a supervisor who calls a black subordinate a f***ing n***** “has engaged in conduct so powerfully offensive that the MCAD can properly base liability on a single instance”).

Courts do not impose a numerosity test. Rather, the legal analysis is focused on whether the discriminatory comments “intimidated, humiliated, and stigmatized” the employee in such a way as to pose a “formidable barrier to the full participation of an individual in the workplace.” See Thomas O’Connor Constructors, Inc. v. Massachusetts Comm’n Against Discrimination, 72 Mass. App. Ct. 549, 560–61(2008); Chery v. Sears, Roebuck & Co., 98 F. Supp. 3d 179, 193 (D. Mass. 2015) (noting that, in the context of a hostile work environment based upon race, “[i]t is beyond question that the use of the [“N” word] is highly offensive and demeaning, evoking a history of racial violence, brutality, and subordination”).

Similarly, in the context of a disparate treatment claim (e.g., allegations that employee was terminated based on unlawful age bias), evidence that the decision-maker referred to the employee as a “Boomer” should not be evaluated in a legal vacuum. Rather, this evidence may be presented to the jury as just one piece of a “convincing mosaic of circumstantial evidence” from which a fact-finder could properly determine that the termination decision was driven by discriminatory animus based upon age. See Burns v. Johnson, 829 F.3d 1, 16 (1st Cir. 2016).

So, while sticks and stones may break bones, words also do harm and depending upon the circumstances, may result in legal claims and liability.

ARTICLE BY Brian J. MacDonough of Sherin and Lodgen LLP.

For more on Free Speech, see the National Law Review Constitutional Law section.

Texas Appeals Court Rules Private Communications with Customers Not Protected Free Speech

In a case addressing the applicability of free speech as a defense to trade secret misappropriation, the Court of Appeals for the Fifth District of Texas retracted its previous ruling, holding that communications with customers and suppliers did not involve a matter of public concern and were therefore not an exercise of free speech. Goldberg, et al. v. EMR (USA Holdings) Inc., et al., Case No. 05-18-00261-CV (Tex. App. Jan. 23, 2020) (Myers, J).

The case concerns allegations of trade secret misappropriation brought by EMR (USA Holdings) (EMR), against Kenneth Goldberg, his company Geomet Recycling (Geomet), and several Geomet employees who, like Goldberg, formerly worked for EMR. EMR and Geomet are both involved in the business of scrap metal recycling. EMR alleged that Goldberg, Geomet and the former EMR employees (collectively, “Defendants”) violated the Texas Uniform Trade Secrets Act (TUTSA), breached fiduciary duties and tortuously interfered with contracts by, among other things, using EMR’s trade secrets and confidential and proprietary information to contact purchasers and suppliers.

Defendants moved to dismiss all claims under the Texas Citizen’s Participation Act (TCPA), claiming that their contacts with purchasers and suppliers were protected free speech involving a matter of public concern. The TCPA allows litigants to seek early dismissal of a lawsuit if they prove by a preponderance of the evidence that the legal action is based on, or is in response to, a party’s exercise of the right of free speech.

The TCPA defines “exercise of the right of free speech” as “a communication made in connection with a matter of public concern.” The statute states that a “‘[m]atter of public concern’ includes an issue related to: (A) health or safety; (B) environmental, economic, or community well-being; . . . or (E) a good, product, or service in the marketplace.” Id. § 27.001(7). Additionally, under the “commercial-speech exemption,” the TCPA does not apply to a legal action brought against a person engaged in the business of selling goods or services if the conduct arises out of a commercial transaction in which the intended audience is an actual or potential buyer or customer.

After the trial court denied Defendants’ motion to dismiss without providing any reasoning, Defendants appealed.

On August 22, 2019, the Court of Appeals for the Fifth District of Texas affirmed the trial court’s decision. The Court held that the commercial-speech exemption to the TCPA applied to the Defendants’ communications with purchaser and suppliers. However, the Court also found that these communications concerned “an issue related to . . . a good, product, or service in the marketplace” and therefore involved a matter of public concern under the TCPA.

Both sides asked for rehearing. In its new ruling, the Court of Appeals reversed course and found that Defendants’ communications with purchasers and suppliers did not involve matters of public concern. Defendants argued that the business of recycling scrap metal relates to environmental, economic and community well-being, which are considered matters of public concern under the TCPA. The Court rejected this argument, noting that while scrap metal recycling may indeed relate to matters of public concern, the communications at issue “were private communications regarding private commercial transactions for the purchase and sale of a commodity.” The Court held that, because the communications themselves did not implicate matters of public concern, they were not subject to the TCPA.

Practice Note:

The new ruling significantly restricts the application of the TCPA. The holding indicates that the TCPA cannot shield defendants from trade secret claims based on communications between the defendant and potential customers or suppliers that solely relate to the purchase or sale of a commodity—even if the commodity at issue might arguably relate to matters of public concern.

ARTICLE BY William C. Rose of McDermott Will & Emery.

For more on TCPA rule application, see the National Law Review Communications, Media & Internet law section.

New York Times v. Sullivan Supreme Court Decision and its Impact on Libel Law: the Case, the Context and the Consequences

Aimee Edmondson, Ph.D. and Associate Professor and Director for Graduate Studies at Ohio University, has recently published a new book, In Sullivan’s Shadow on the landmark libel US Supreme Court case New York Times v. Sullivan. In the current contentious climate where even the weather has become a political topic, and with President Trump courting a combative relationship with the news media, this case from the Civil Rights Era (1964) has a new resonance. It seems appropriate to re-examine the case, the historical context surrounding it, and why it still matters today.

The following are the facts of this case. In the early ’60s, the New York Times (NYT) published a full-page advertisement by the supporters of Martin Luther King, Jr, criticizing the Montgomery Alabama police, and specifically L.B. Sullivan, the Montgomery Police commissioner, for the department’s mistreatment of Civil Rights protesters. Sullivan sued the paper for defamation, and the trial court ruled in his favor. The NYT appealed to the Supreme Court in Alabama, which affirmed, and then the NYT appealed to the U.S Supreme Court. The U.S. Supreme Court heard the case and returned a unanimous decision 9-0, that the underlying decisions violated the First Amendment. This 1964 Supreme Court landmark decision is foundational in support of the First Amendment’s right of freedom of the press and ultimately demonstrates that the freedom of speech protections in the First Amendment restrict the ability of public officials to sue for defamation. This decision also created the “actual malice” standard, which required that the publication of false or erroneous information had to be done with actual intent to harm the public figure.

Libel litigation has really kicked up in recent years. While the “actual malice” standard is still firmly in place, a few high-profile libel actions have pressed forward. A few examples are the following: Sarah Palin suing the NYT; the Covington Catholic students, specifically Nicholas Sandmann and his ultimately dismissed lawsuit against the Washington Post (WP); and former Sheriff Joseph Arpaio’s lawsuit against the NYT and editorial writer Michelle Cottle which was also dismissed. Additionally, Trump frequently uses his Twitter feed to proclaim that libel suits “are out of reach” but continues to threaten libel action when unflattering press is published. To be clear, his threats have remained threats; to this date, he has not filed lawsuits regarding libel.

With this history and cultural context in mind, I am very grateful that Professor Edmondson took the time to speak with me regarding the state of libel litigation in the United States.

The NLR: The Sullivan case dates back to the ’60s and came out of the Civil Rights Movement when the NYT was sued by the Montgomery, Alabama police commissioner, L.B. Sullivan. Why is this precedent especially relevant now?

Sullivan is relevant for at least these three reasons.

First, journalism faces tough challenges. Local print journalism is withering. The president of the United States has launched an assault on news media. And manipulators, some of them foreign, are abusing technology with fakery and confusion. As the free press struggles, our Republic is well served by existing protection again libel abuse.

Second, we as a nation go to great lengths to protect free speech, even unpopular and hateful expression. The Supreme Court recently ruled that the government could not deny vulgar trademarks citing the First Amendment (Iancu v. Brunetti, decided June 24, 2019). Citizens who chant “send her back” at a Trump rally are protected. Journalists who cover controversy likewise should be protected from libel abuse.

When the nation’s Founders gathered to amend the Constitution through the Bill of Rights, they positioned freedom of speech and the free press side-by-side, as complementary. As we protect free speech, we also should protect the free press.

Third, the abuse of libel is an instinctive default position of authority facing criticism. When authority is irritated by the message, it can seek ways to injure or chill the messenger. America should guard against abuse of libel. Justice William Brennan wrote in the 1964 landmark Sullivan case that, left unchecked, abuse of libel can “threaten the very existence of an American press virile enough to publish unpopular views on public affairs and bold enough to criticize the conduct of public officials.”

In this era of divided citizenry, profound technological changes, and nervousness about the future, Sullivan is perhaps more relevant because it checks the misuse of libel.

The NLR: Based on your research of libel prior to Sullivan, what can you tell us about the use and abuse of libel before Sullivan?

In the Jim Crow South, libel was weaponized against the press and individuals who challenged the racial status quo. The Sullivan case was the culmination of an onslaught of libel claims designed to brake progress, silence criticism, and bankrupt agents of change as the civil rights movement was gaining momentum.

The intersection of libel, race, and journalism can be tracked to the early years of our nation. In 1830, abolitionist William Lloyd Garrison was indicted in Baltimore for publishing a newspaper report of 75 enslaved people shipped from Baltimore to New Orleans. He was locked up for 49 days in part for criticizing the institution of slavery. Garrison’s lawyer, Charles Mitchell of Baltimore, described libel abuse as an “engine of tyranny.”

My book primarily focuses on civil rights-era libel litigation, mainly, but not exclusively, in the South. Chapter One is set in Los Angeles. The local Klan sued the African American editor-publisher of the California Eagle in 1925 after the newspaper published a Klan strategy memo on how to manipulate black voters in Watts. The judge ruled in favor of the paper, concluding that the Klan document, which had been handed over to police and then to journalists, was privileged. (In court, the Klan said the paper was fake.)

The win-loss record of libel cases was mixed before Sullivan was taken up by the nation’s high court. Defendants settled some cases to avoid expense and exposure. Some judges ruled that truth was a defense against libel claims.

Regardless of the legal outcomes, the pile-on of libel lawsuits against the press and civil rights leaders was draining financially. For example, Reverend Fred Shuttlesworth was a named defendant in the Sullivan case, even though he didn’t know that his name appeared in the full-page ad in NYT that prompted Sullivan’s lawsuit. Alabama courts awarded Commissioner Sullivan $500,000, a record-high judgment at the time. While the case was on appeal, authorities seized Reverend Shuttlesworth’s Plymouth, which brought $400 at auction to help pay the judgment. Land owned by three other ministers who also were defendants was sold at auction for $4,350.

By the time the U.S. Supreme Court heard the Sullivan case, there was plenty of evidence in multiple jurisdictions showing that libel abuse was weighing on the First Amendment.

The NLR: After the Sullivan ruling in 1964, the press went on to break some fairly fantastic stories. I am thinking about Watergate, in the early ’70s, specifically. What were the implications of Sullivan regarding press coverage of civil rights, Vietnam, Watergate, and other contentious news?

Yes. My colleague Christopher B. Daly at Boston University (author of “Covering America”) makes the profound point that Americans need a free and robust press in wartime and peacetime. He cites coverage of the Pentagon Papers, the My Lai Massacre, and the Abu Ghraib torture scandal.

I close my book by pointing out that Sullivan freed the press to ramp up its watchdog reporting on a wide range of issues. The press’ scrutiny must continue as a cornerstone of our democratic tradition.

Balancing police authority/public safety with respect for individual freedoms and free expression was at the core of much of the libel litigation before and after Sullivan. The Sullivan case at its heart was about criticism of police brutality against civil rights protesters in Montgomery, Alabama, which was a cradle of the Confederacy during the Civil War. As a result of Sullivan, today’s public criticism of law enforcement, such as press coverage of “Hands up, don’t shoot,” and “I can’t breathe” are not actionable libel claims.

The NLR: Earlier this year, Justice Clarence Thomas suggested that the Supreme Court should take a look at Sullivan, after 55 years, to modify the standard on actual malice. The rest of the Court did not voice similar sentiments. What point is Justice Thomas making/what is on his mind, and do you think the Court will revisit libel anytime soon?

Justice Thomas often treads his own path in the area of First Amendment law. He is a noted defender of advertising (commercial speech), questioning why it should be more heavily regulated than other types of speech, even political speech. He has questioned laws that regulate political contributions, and strongly supported less government regulation of street and lawn signs. However, he has opposed free speech protections for high school students and prisoners.

I see Sullivan as a civil rights case as well as a libel case. How ironic that Justice Thomas, the only African-American on the Supreme Court, is calling for a retreat on civil rights-era protections in Sullivan. He made this remark in a concurring opinion released early this year when the court turned down an appeal from Kathrine McKee, who accused Bill Cosby of sexual assault. She sued Cosby for libel after his lawyers called her dishonest (McKee v. Cosby). As Justice Thomas says:

New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own “‘federal rule[s]’” by balancing the “competing values at stake in defamation suits.” (quoting Gertz v. Welch and Sullivan). We should not continue to reflexively apply this policy-driven approach to the Constitution. Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.

As you noted in your question, Thomas’ colleagues on the Supreme Court have not publicly joined his push to roll back Sullivan. I do not expect that Court will revisit Sullivan immediately. But predicting what the Court will do is virtually impossible. Sometimes, the seeds planted by a single justice, like Thomas’ remarks about Sullivan, yield results later.

Generally, critics say Sullivan stacks the deck against the plaintiff, that actual malice is an impossible standard, and the press should not have license to run amuck.

The NLR: Sullivan set the standard pretty high for public officials seeking to win libel claims, they have to show “actual malice.” Does this, and other existing protections of the press, make it virtually impossible to win a libel claim?

Journalists are not totally protected from libel suits, nor should they be. Truth is the ultimate defense in a libel suit. If reporters get it wrong, certainly there can be ramifications.

If reporters get it wrong and the plaintiff is a public official or public figure, the reporters may lose a libel case if actual malice is proven in court. Actual malice is publishing content that is knowingly wrong, or journalists should have known it was incorrect.

After a 15-day trial, a jury in New York awarded $75,000 in damages to Barry Goldwater, the Republican nominee for president in 1964 (Goldwater v. Ginzburg). A federal appeals court affirmed the outcome in 1969, and the Supreme Court declined to review the case. Ralph Ginzburg, publisher of Fact magazine, ran an article that said Goldwater was paranoid, unfit for office, and troubled by “intense anxiety about his manhood.” This unflattering claim was based on a survey mailed to psychiatrists. Some of the respondents had warned that psychological evaluations must take place in clinical settings, but Ginzburg published anyway. He cited the Sullivan case when Goldwater took him to court, to no avail.

Rolling Stone settled multiple libel claims after retracting its 2014 story of gang rape at a University of Virginia fraternity. The flawed 9,000-word article portrayed an associate dean as “chief villain” of the incident. She won a $3 million verdict in court and then settled. Rolling Stone settled with the fraternity for $1.65 million, and also settled with members of the fraternity.

In June, a jury in Ohio awarded $44.4 million in punitive and compensatory damages to family-owned Gibson’s Bakery to be paid by Oberlin College (Gibson’s Bakery v. Oberlin College). Bakery owners said the college defamed and harmed their business after a shoplifting incident. “Even a college as influential as Oberlin,” noted conservative blogger Cornell Law Professor William Jacobson, “may be held accountable for its actions in a court of law.”

The NLR: What has candidate Donald Trump/President Trump said about libel?

In 2016 in Fort Worth, Texas, then-candidate Trump took aim at libel laws directly: “One of the things I’m going to do if I win, and I hope we do and we’re certainly leading. I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws. So when The New York Times and Washington Post . . . writes a hit piece, we can sue them and win money instead of having no chance of winning because they are totally protected.”

President Trump lamented in 2018 that “totally false” reports are out of reach of libel law:

Trump has threatened libel action against both the media and individuals. For example, candidate Trump threatened to sue NYT in 2016 after NYT’S publication containing claims by women of his alleged inappropriate touching. In response, a NYT attorney said if Trump thinks “the law of this land forces us and those who would dare to criticize him to stand silent or be punished, we welcome the opportunity to have a court set him straight.”

Trump did not sue.

Threatening libel action is part of Trump’s broader effort, aimed at his voter base and the electorate, to de-legitimize the press.

The NLR: Defamation-libel litigation is very active lately. What are today’s courts saying about libel?

Legal outcomes vary because circumstances vary. There is significant activity on libel, in state and federal courts, showcasing the durability of the legal standard set more than a half-century ago in Sullivan.

The Sullivan standard resonates throughout the 11-page opinion dismissing former Sheriff Joseph Arpaio’s lawsuit against NYT and editorial writer Michelle Cottle. “Because plaintiff has failed to plead actual malice, his false light claim must fail as well,” wrote US District Court Judge Amit P. Mehta (District of Columbia) in a decision issued August 9, 2019. Arpaio was longtime sheriff of Maricopa County, Arizona, before running for Congress in 2018. After Arpaio lost in the primary, NYT published an opinion piece by Cottle criticizing the sheriff’s treatment of immigrants (“he was so much more than a run-of-the-mill immigrant basher”). Arpaio, a public figure, claimed the column harmed his reputation and his chances to run for the U.S. Senate in 2020. The judge said Arpaio’s complaint “comes nowhere close to pleading sufficient facts that plausible establish ‘actual malice.’” (Arpaio v Cottle, August 9, 2019). This case is remarkably similar to the multiple libel suits filed by legendary southern lawman Lawrence Rainey, a former Neshoba County, Mississippi sheriff who sued multiple journalists and even Orion Pictures for his depiction in the film, Mississippi Burning, in 1989.

Current libel claims highlight the inflation in the amount of damages sought by plaintiffs. In the early 1960s, Sullivan (as well as then Alabama Governor John Patterson) sued NYT for $500,000. In 1982, General William Westmoreland sued CBS for $120 million regarding a Vietnam documentary (Westmoreland settled during the trial, ending the case without payment, retraction, or apology from CBS).

This year, a high school student from Kentucky sued WP for $250 million, the purchase price of the newspaper when Amazon founder Jeff Bezos bought it in 2013. On July 26, U.S. District Court Judge William O. Bertelsman (Eastern District of Kentucky) dismissed the case (Nicholas Sandmann v. The Washington Post). Publication of opinion is not actionable libel, the judge concluded. This case involved coverage of Sandmann’s encounter with Native American activist Nathan Phillips on the National Mall on January 19, 2019.

“The Court accepts Sandmann’s statement that, when he was standing motionless in the confrontation with Phillips, his intent was to calm the situation and to not impede or block anyone”, the judge said. “However, Phillips did not see it that way. He concluded that he was being ‘blocked’ and not allowed to ‘retreat.’ He passed these conclusions on to The Post. They may have been erroneous, but . . . they are opinion protected by the First Amendment. The Post is not liable for publishing these opinions.”

Days after the Sandmann case was dismissed in federal court, eight of Sandmann’s classmates (“John Does 1 through 8”) from Covington Catholic High School in Park Hills, Kentucky, filed a defamation suit in state court against 12 individuals. Defendants include two members of Congress, comic Kathy Griffin, and a batch of commentators and journalists.

Also, in August, a federal appeals court reinstated Sarah Palin’s defamation suit against NYT. Therefore, a court will consider whether a NYT editorial on gun violence exhibited “actual malice” against Palin, a former vice presidential candidate.

The NLR: You’ve raised some excellent points. How does all of this fit together? What are we to make of this landscape in today’s contentious and media-saturated environment?

Truth-seeking is a primary mission of journalism. News reporting inspires debate. Reporting controversy does not constitute libel. Publication of malicious, reckless, falsehood is actionable libel.

Newsgathering is an ongoing process, as events evolve. Courts appear to understand this dynamic, with the media’s constant deadlines, and do not view updating as a story evolves as actual malice. It’s quite the opposite. We write what we know to be the truth as we know it.

It’s important to note that Justice Brennan’s majority opinion in Sullivan protected even false information, as long as that information was published by accident (without actual malice). Later libel cases built on Sullivan with the U.S. Supreme Court declaring that “pure opinion” is also constitutionally protected speech (Milkovich v. Lorain Journal Company). The First Amendment, then, ensures that free speech isn’t “chilled” and thus clears the way for journalists to write about fast-moving and-or controversial issues without fear of costly libel litigation.

As we ponder the big picture, let’s remember Justice Louis Brandeis’ time-honored advice: “the answer to bad speech is more speech, not ‘enforced silence.’”

The NLR: Many thanks to Dr. Edmondson for her insights and useful examples on this important and timely matter.

ARTICLE BY Eilene Spear of The National Law Review / The National Law Forum LLC.

For more freedom of speech issues, see the Constitutional Law page on the National Law Review.

Mississippi Sued Over Plant-Based, Cell-Based, and Insect-Based Meat Labeling Law

Like countless other states, earlier this year, Mississippi passed SB 2922, which stipulates that cell-based, plant-based, or insect-based foods cannot be labeled as “meat” or “a meat food product” (e.g., “hamburgers,” “hot dogs,” “sausages,” “jerky”, etc.). Specifically, SB 2922 amended Section 75-35-15(4) of the Mississippi Code to state “[a] food product that contains cultured animal tissue produced from animal cell cultures outside of the organism from which it is derived shall not be labeled as meat or a meat food product. A plant-based or insect-based food product shall not be labeled as meat or a meat food-product.” Such products still run afoul of the law even if the labels include claims like “100% vegan,” “plant-based,” or “meatless.”

SB 2922 came into effect on July 1, 2019. On that same day, vegan “meat” producer, Upton’s Naturals Co. and the Plant Based Foods Association (PBFA) filed suit in federal court against Mississippi’s Governor and Commissioner of the Department of Agriculture and Commerce arguing that the label restrictions violate their First Amendment right to free speech, among other claims. Upton’s and PBFA are seeking a declaratory judgment that SB 2922 violates the First and Fourteenth Amendments to the U.S. Constitution, a preliminary injunction prohibiting enforcement of SB 2922 throughout the duration of the litigation, a permanent injunction, and an award of nominal damages in the amount of $1.00.

Mississippi’s Department of Agriculture and Commerce, along with the state’s cattle and poultry associations, supported the state law. Indeed, in response to the lawsuit, the Department said it has a “duty and obligation to enforce the law” and that it wanted to ensure the consumer has “clear information on the meat and non-meat products they purchase.” However, supporters of the lawsuit, like the Good Food Institute, argued that “Mississippi is acting as word police” and that the law is a “slippery slope” that could open the door to restrictive labeling.

Article by Food and Drug Law at Keller and Heckman LLP

For more on food regulation & labeling, see the National Law Review Biotech, Food & Drug law page.

Employer Strategies for Surviving Election Season

Once again, the “silly season” is upon us. Every four years, battle lines are drawn and many employees take sides, touting their preferred candidate’s merits over what they regard as the utterly despicable nature of the other candidate. Fortunately for employers (and everyone else who values their sanity) this should be over in about a month. I hesitate only because I lived in Florida during the 2000 election, and if you think things are contentious now – pray the current election cycle doesn’t go into overtime.

Free Speech?

It’s only natural for employees to discuss politics at work. But doing so can be disruptive, and if a political discussion gets out of hand, it can lead to confrontations, allegations of assault, harassment, discrimination or retaliation. Generally, private employers may limit and even prohibit political expression in the workplace, such as discussing candidates or issues, wearing or displaying political signs and paraphernalia. What about free speech, you ask? The First Amendment does not apply to private employers – only the government. Still, there are limits. For one thing, the National Labor Relations Act (NLRA) allows political discussions directly connected to the terms and conditions of employment. Second, some states (such as Colorado, Connecticut, Maryland, New Jersey, New York, Oregon, Texas, Virginia and Washington) have laws that prohibit discrimination against employees based on their political affiliation, or from unduly influencing an employee’s vote through intimidation.

Prudent employers should adopt and implement policies advising their employees of what will and will not be tolerated in the workplace during election season. If an employer wants to keep politics separate and apart from the workplace, this is perfectly appropriate – provided of course, that the employer complies with the exclusions outlined by the NLRA, which may be required under state or local law.

Election Day Leave

Another reminder during election season is that most states permit employees to take leave during the workday so they can cast their ballots. The specific laws can vary significantly by state. For instance, some states – but not all – allow voting leave only where the employee would not otherwise have sufficient time to vote before or after their scheduled shift. The majority of states require employees to provide advance notice of voting leave, and also give employers the discretion to determine the specific times during which the employee may be absent from work to vote. With few exceptions, voting leave laws typically allow an employee to be away from work for up to two or three hours during the workday to vote. Similarly, with few exceptions, most states require the employer to pay the employee for the time spent on voting leave. Further, a few states also allow employees to take time off not only to vote, but to serve as election officials.

Other Employer Considerations

Employers seeking to preserve a calm workplace in this silly season – particularly one as heated as this year’s – should try to stay above the fray and consider these strategies:

Adopting a neutral stance about the elections while focusing on the business at hand.
Review, and if necessary, revise existing policies regarding political expressions at work.
Remind employees of the policies on voting and political expression.
Check the requirements of state and local laws regarding elections, and particularly anti-discrimination and voting leave laws, to ensure compliance.
Educate your front-line supervisors and human resources personnel (especially those tasked with handling leave requests) about the company’s policies and the requirements of state and local laws.

ARTICLE BY Hannesson Murphy of Barnes & Thornburg LLP

Supreme Court Rules Public Employee Demoted For Perceived Political Activity Can Bring First Amendment Challenge

In a 6-to-2 decision, the Supreme Court ruled that when a public employer demotes an employee in order to prevent the employee from exercising his free-speech rights, the employee may challenge that action as a violation of the First Amendment and §1983, even if the employer was mistaken about the employee’s behavior. The Court found that the government’s motive is what matters and that the constitutional violation of discouraging employees from engaging in protected political activity and speech is the same regardless of whether or not the employer was mistaken about the employee’s political involvement. Heffernan v. City of Paterson, 578 U.S. ___ (2016).

Supervisor Assumed Employee Supported Opposing Candidate

Jeffrey Heffernan was a police officer in Paterson, N.J., a twenty-year veteran of the force. After being promoted to detective in 2005, he was assigned to the office of the chief of police. In April 2006, the city was in the middle of a mayoral election where the incumbent had the support of Heffernan’s supervisors, but the challenger was a former Paterson police chief and friend of Heffernan. Heffernan could not even vote in the election as he did not live in the city but his mother did.

One afternoon, while off duty, Heffernan went, at his mother’s request, to the challenger’s campaign office to get a new yard sign for his mother’s yard. Other members of the police force saw him with the sign. The following day, Heffernan’s supervisors demoted him to patrol officer and assigned him to a walking patrol post. They demoted him as punishment for what they thought was his “overt involvement” in the challenger’s campaign, even though that belief was mistaken. Heffernan was not involved in the campaign but merely picked up the sign to help his bedridden mother.

Heffernan sued, alleging his demotion violated the First Amendment. He asserted that his supervisors demoted him because they thought he engaged in constitutionally protected speech, even though they were mistaken about his actions. The district court and Third Circuit Court of Appeals rejected his claim, holding that a free-speech retaliation claim under §1983 lies only when the government retaliated against an employee who actually exercised his First Amendment rights, not on the mistaken perception that he exercised protected rights.

High Court Rules In Favor Of First Amendment Protection

Generally, the First Amendment prohibits government officials from dismissing or demoting an employee because that employee engaged in constitutionally protected political activity or speech. Heffernan argued that the government’s motive in taking an adverse employment action is the key to a public employee’s retaliation claim. He alleged that as long as a government employer believed that the employee was engaged in protected activity and took adverse action because of that belief, the employer violated the First Amendment.

The Supreme Court agreed. Writing for the majority, Justice Breyer stated that “the government’s reason for demoting Heffernan is what counts here.” The Court ruled that when a government employer demotes an employee because it wants to prevent the employee from engaging in political activity protected by the First Amendment, the employee is entitled to challenge that unlawful action under the First Amendment and §1983, even if the employer is acting upon a factual mistake regarding the employee’s behavior. The Court stated that the employer’s mistake does not diminish the risk of harm to the demoted employee or to others who fear similar adverse consequences of engaging in protected activity.

The Court left the door open, however, for government employers to adopt a neutral policy that prohibits police officers from overt involvement in any political campaign. Whether a specific neutral policy meets constitutional muster is a question the Court left for another day.

It’s the Employer’s Ill Motive that Matters, Not the Employee’s Exercise of Rights

The Court’s ruling means that a public employer can be held liable for violating an employee’s constitutional rights even where the employee admits he wasn’t exercising those rights. The public employer’s desire or motive to keep the employee from engaging in protected political activity is enough to give the employee a viable claim for damages under §1983 regardless of whether the employee engaged in any activity protected by the Constitution.

Article By Joanna R. Vilos of Holland & Hart LLP

Tag: free speech

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