Category: Constitutional Law

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 40th 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.

Seila Law LLC v. Consumer Financial Protection Bureau: Has the Supreme Court Tamed or Empowered the CFPB?

On June 26, the Supreme Court issued its long-awaited opinion in Seila Law LLC v. Consumer Financial Protection Bureau,1 finally resolving the question that has dogged the new agency since its inception:  Is the leadership structure of the Consumer Financial Protection Bureau (CFPB) constitutional?  Writing for a 5-4 majority, Chief Justice John Roberts ruled that the CFPB structure—“an independent agency that wields significant executive power and is run by a single individual who cannot be removed by the President unless certain statutory criteria are met”—violates the Constitution’s separation of powers.2  

For financial services companies regulated by the CFPB, the most important aspect of Seila Law is not the headline constitutional defect, but the remedy.  Choosing “a scalpel rather than a bulldozer,”3 the Court did not invalidate the CFPB.  The Court held 7-2 that the Director’s constitutionally offensive removal protection could be severed from the CFPB’s other authorities, thus bringing the Director (and with her, the CFPB) under Presidential control, while leaving the CFPB’s other powers in place.4

While Seila Law  is an important case in the evolving doctrine of separation of powers as applied to independent agencies, the case has three immediate consequences for financial services companies.  First, the CFPB is here to stay, and its broad authorities and other controversial aspects (such as its insulation from Congressional appropriations) remain intact.  Second, the CFPB’s Director is now directly accountable to the President, significantly raising the stakes in the 2020 election for the agency’s regulatory and enforcement agenda.  Third, the Court left one important question unanswered:  it declined to address the effect of its ruling on prior CFPB rules and enforcement actions.  While we believe the agency will attempt to cure the constitutional defect, we expect continued litigation—and uncertainty—on this issue.

Background

In response to the 2008 financial crisis, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”), creating the CFPB as an independent financial regulator within the Federal Reserve System.5  The CFPB has expansive authority to “implement and, where applicable, enforce Federal consumer financial law,” which includes 19 enumerated federal consumer-protection statutes and the Dodd-Frank Act’s broad prohibition on unfair, deceptive, and abusive acts and practices.6  The CFPB’s authority over consumer financial products and services includes rulemaking authority with respect to the enumerated statutes, the ability to issue orders, including orders prohibiting products and services which it concludes are “abusive” or substantively unfair, as well as the power to impose significant financial penalties on financial services companies.  The CFPB is funded through the Federal Reserve System, and thus is not subject to Congressional constraint through the appropriations process.  Although technically housed within the Federal Reserve System, the CFPB also is not subject to oversight or control by the Board of Governors of the Federal Reserve System.  As a result, the CFPB was created to be an independent agency, largely unconstrained by Congress or the Federal Reserve System.  The CFPB is headed by a single Director appointed by the President, by and with the advice and consent of the Senate, for a five-year term.7  The Director may be removed by the President only for “inefficiency, neglect of duty, or malfeasance in office.”8  

In 2017, the CFPB issued a civil investigative demand to Seila Law LLC, a California-based law firm that provides debt-related legal services to consumers.  Seila Law refused to comply, objecting that concentrating the CFPB’s authority in a single Director with for-cause removal protection violated the separation of powers doctrine.  The CFPB filed a petition to enforce its demand in federal district court.  The district court rejected Seila Law’s constitutional objection and ordered the law firm to comply with the demand.  The Court of Appeals for the Ninth Circuit affirmed.9

Case Analysis: Seila Law

The Supreme Court granted certiorari to address the constitutionality of the CFPB’s single-Director structure.  That decision was telling in and of itself, given that the Ninth Circuit’s ruling was in accord with PHH Corporation v. CFPB, the D.C. Circuit’s en banc opinion upholding the Director’s removal protection.10  As many had expected, the Supreme Court reversed the Ninth Circuit and held that Congress’s restriction on the President’s power to remove the CFPB’s Director violated the separation of powers doctrine. 

The Court began its analysis from the premise that Article II of the Constitution gives the entire executive power to the President alone, “who must ‘take care that the Laws be faithfully executed.’”11  Lesser officers who aid the President in his or her duties “must remain accountable to the President, whose authority they wield.”12  The President’s power to remove these lesser officers at will is foundational to the President’s executive function and “has long been confirmed by history and precedent.”13  The Court held that “[w]hile we have previously upheld limits on the President’s removal authority in certain contexts, we decline to do so when it comes to principal officers who, acting alone, wield significant executive power.”14  The Court found that the CFPB’s Director fit that bill.  In creating the CFPB, Congress “vest[ed] significant governmental power in the hands of a single individual accountable to no one.”15  Such an agency “has no basis in history and no place in our constitutional structure.”16 

Next, the Court turned to the remedy.  Seila Law argued that the Director’s unconstitutional removal protection rendered the “entire agency … unconstitutional and powerless to act.”17  The Court disagreed.  Relying on the Dodd-Frank Act’s severability clause, the Court’s severability precedent, and the proposition that “Congress would have preferred a dependent CFPB to no agency at all,” the Court ruled that the Director’s removal protection is severable from the CFPB’s other statutory authorities.18  “The agency may therefore continue to operate, but its Director, in light of our decision, must be removable by the President at will.”19  

Finally, the Court expressly declined to address how its holding affects prior CFPB regulatory and enforcement actions.  The government had argued that the Court need not reach the constitutional question because the CFPB’s demand to Seila Law had since been ratified by an Acting Director accountable to the President.20  The Court remanded the question of ratification to the lower courts, noting that it “turns on case-specific factual and legal questions not addressed below and not briefed here.”21

Implications

Seila Law is an important case for the canons of administrative law and the separation of powers doctrine.  But for financial services companies regulated by the CFPB, it has meaningful (and immediate) practical consequences.

First, the CFPB has escaped Supreme Court review with its authorities basically untouched.  Absent Congressional action, the CFPB will (i) continue to be run by a single Director, (ii) continue to wield expansive rulemaking, supervisory, and enforcement authority over the multi-trillion dollar market for consumer financial products and services, and (iii) continue to be insulated from Congressional control via the appropriations process.

Second, the CFPB’s Director is now directly accountable to the President—whoever that person may be.  Typically, financial regulators have a measure of insulation from the political process to provide consistency and certainty to financial markets.  With this decision, the election of the next President—and the prospect of a Democratic administration—could result in significant and immediate changes to the CFPB’s regulatory and enforcement agenda.

Third, while Seila Law secured the CFPB’s future, the Court left in place significant uncertainty as to its past.  This past includes major enforcement actions and rulemakings that have reshaped the market for consumer financial products and services over the last nine years.  Of course, it remains to be seen what appetite financial services companies have to challenge the CFPB’s prior rules and enforcement orders.  And, we expect the CFPB will attempt to remedy the constitutional defect by ratifying the agency’s past actions or perhaps invoking the de facto officer doctrine.22  Yet, the availability of either remedy is an open question.  Ratification in particular is a live dispute in both Seila Law and a pending en banc appeal before the Fifth Circuit, Consumer Financial Protection Bureau v. All American Check Cashing.23  Ratification of prior agency actions was also left unresolved in another thread of the Supreme Court’s recent separation of powers jurisprudence.  In Lucia v. SEC, the Court found that the SEC hired administrative law judges (ALJs) in violation of the Appointments Clause, but offered limited remedial guidance aside from instructions that Lucia was entitled to a “new hearing before a properly appointed” ALJ.24  While litigating Lucia’s challenge, the SEC issued an order purporting to ratify its past ALJ appointments by approval of the Commission itself.  The Court acknowledged that order, but declined to address its validity.25

1   Seila Law v. Consumer Financial Protection Bureau, 591 U.S. ____ (2020) (June 26, 2020).

2   Id., Slip Op. at 2–3.

3   Id., at 35.

4   Id.,  at 3. 

5   Title X of the Dodd-Frank Act, 12 U.S.C. § 5301 et seq., created the CFPB and defines its authorities. 

6   12 U.S.C. § 5511 (defining CFPB’s purpose); 12 U.S.C. § 5481(14) (defining “Federal consumer financial law”). 

7   Id. § 5491(b)(2), (c).

8   Id. § 5491(c)(3).  For a detailed discussion of the CFPB and its powers, see our Clients & Friends Memo, The Consumer Financial Protection Bureau: The New, Powerful Regulator of Financial Products and Services (March 06, 2012).

9   Seila Law, Slip Op. at 6–8 (discussing procedural history).

10 PHH Corp. v. CFPB, 881 F. 3d 75 (D.C. Cir. 2019) (en banc).  Tellingly, then-Judge Kavanaugh wrote the D.C. Circuit panel decision holding that the CFPB’s structure violated the separation of powers doctrine.  839 F.3d 1 (D.C. Cir. 2016). The en banc court vacated that decision, but now-Justice Kavanaugh joined the majority in Seila, reiterating his separation of powers analysis from the D.C. Circuit.    For further analysis of the PHH decision, see our Client & Friends Memo Federal Appeals Court Rules That CFPB Structure is Constitutional  (Jan. 31, 2018) (discussing the en banc decision); D.C. Circuit Brings CFPB under Presidential Control  (Oct. 13, 2016) (discussing the initial panel decision of the D.C. Circuit).

11 Seila Law, Slip Op. at 11 (quoting U.S. Const., Art. II, § 1).

12 Id. at 12.

13 Id.

14 Id. at 36.  Specifically, the Court wrote that it has recognized two limited exceptions to the President’s unrestricted removal power.  Seila Law, Slip Op. at 15–16.  First, in Humphrey’s Executor, 295 U.S. 602 (1935), the Court upheld removal restrictions for Commissioners of the Federal Trade Commission, which Roberts characterized as “a multimember body of experts, balanced along partisan lines, that performed legislative and judicial functions and was said not to exercise any executive power.”  Seila Law, Slip Op. at 15.  Second, in United States v. Perkins, 116 U.S. 483 (1886), and Morrison v. Olson, 487 U.S. 654 (1988), the Court permitted removal protections for certain inferior officers with narrow duties, such as an independent counsel appointed to investigate and prosecute specific crimes.

15 Seila Law, Slip Op. at 23.

16 Id. at 18.

17 Id. at 31.

18 Id. at 32–36 (emphasis in original).

19 Id. at 3.

20 Id. at 30.

21 Id. at 31. Justice Thomas viewed this theory as irrelevant, since the Acting Director could not have ratified the continuance of the action by Director Kraninger. Justice Kagan did not address this theory specifically.

22 See Ryder v. United States, 515 U.S. 177 (1995) (the de facto officer doctrine “confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient.”).

23 No. 18-60302 (5th Cir.).

24 Lucia v. S.E.C., 138 S. Ct. 2044, 2055 (2018).

25 Id. at 2055 n.6.

© Copyright 2020 Cadwalader, Wickersham & Taft LLP

ARTICLE BY Rachel Rodman and Scott A. Cammarn and Nihal S. Patel at Cadwalader, Wickersham & Taft LLP.

For more on the CPFB, see the National Law Review Consumer Protection law section.

Youtube May Be an Enormous Town Square, But It’s Still Not Subject to the First Amendment

In Prager University v. Google LLC, et al., Case No. 18-15712 (9th Cir. Feb. 26, 2020), the Court of Appeals for the Ninth Circuit dismissed a First Amendment lawsuit against YouTube late last week, holding that the video hosting giant is a private forum that is free to foster particular viewpoints – and need not be content-neutral.  The victory is a significant message to other online content hosts, aggregators and service providers that they need not feel threatened by censorship claims for selecting and curating content on their systems.

The lawsuit began in 2017, when conservative media company PragerU sued YouTube for imposing restrictions on some of PragerU’s short animated educational videos.  YouTube tagged several dozen videos for age-restrictions and disabled third party advertisements on others.  PragerU claimed the restrictions constituted censorship because they muted conservative political viewpoints.

Traditionally, the First Amendment regulates only U.S. and state government actors when it comes to censoring speech; it does not touch the actions of private parties.  The Ninth Circuit noted that these principles have not “lost their vitality in the digital age.”  While this threshold question is not new, PragerU’s approach to this legal hurdle has drawn fresh interest in how courts’ conception of state action might one day shift in order to accommodate the digital re-imagining of a marketplace of ideas.

PragerU argued that YouTube should be treated as something akin to a government where it operates a “public forum for speech.”  The theory follows that because YouTube has an overwhelming share of the video sharing and streaming space, it essentially performs a “public function.”  The Ninth Circuit affirmed that public use of private resources, even on a large scale, is simply not governmental.  Just because YouTube generally invites the public to use its private property (in this case, its platform) for a specific or designated purpose, does not mean that property should lose its private character.  Similarly, the Ninth Circuit ruled almost twenty years ago that internet service provider America Online was not a government actor even though it broadly opened its networks to the public to send and receive speech.

PragerU’s theory does enjoy some support.  As the Ninth Circuit acknowledged, a private actor is a state or government entity for First Amendment purposes when it performs a public function that is “traditionally and exclusively governmental.”  In other words, the First Amendment may well still apply to private companies tasked with operating public elections or even local governmental administrative duties (for example, the proverbial “company town”).  But the Ninth Circuit simply did not accept the argument that YouTube’s function of “hosting speech on a private platform” bore any resemblance to “an activity that only governmental entities” traditionally and exclusively perform.  After all, noted the Court, even “grocery stores and comedy clubs have opened their property for speech.”  Neither was the Court persuaded that the sheer scale of YouTube’s operation – equal to perhaps many millions of grocery stores and comedy clubs – should alter the analysis.

Had the Ninth Circuit adopted PragerU’s approach, it would have been the first major judicial endorsement of the view that a private entity can convert into a public one solely where its property is opened up to significant public discourse.  Instead, the Ninth Circuit imposed and upheld a more traditional delineation between public and private actors in First Amendment jurisprudence.

© 2020 Mitchell Silberberg & Knupp LLP

See the National Law Review for more on constitutional law questions.

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.

© 2020 SHERIN AND LODGEN LLP

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

The Impeachment Process: Politics, Procedure and Next Steps

The US House of Representatives is set to vote this week on impeaching President Donald Trump, and the impeachment vote is expected to pass.  This will set the stage for the next step in the impeachment process;  the third-ever Senate impeachment trial.

We thought this would be a good time to recap the steps in the impeachment process to better understand, procedurally, how the impeachment case against President Trump reached this point, and what is expected next.  Also, we wanted to dig into some of the issues which have been brought up as problematic by the Republican minority in the House related to the impeachment process and the structure of the House hearings.

Jeffrey S. Robbins, a litigation partner at the Boston offices of Saul Ewing Arnstein & Lehr LLP, served as Chief Counsel for the Minority (the Democrats) for the United States Senate Permanent Subcommittee on Investigations, and Deputy Chief Counsel for the Minority for the Senate Governmental Affairs Committee during its 1997 investigation into allegations of fundraising improprieties by the Clinton-Gore Administration during the 1996 presidential campaign.  Mr. Robbins was kind enough to share his expertise on past congressional investigations to help sort through some of the procedural issues raised and help us understand if the process, so far, has proceeded in a usual manner.

NLR: Impeachment is a three-step process, beginning with an investigation in the house and then a vote on articles of impeachment, then a trial in the Senate. What kind of evidence is the House looking for during the investigation stage prior to voting on articles of impeachment?

Robbins: The House committees are looking for the strongest quantum of evidence possible that the President engaged in conduct which amounts to an identifiable “crime,” since a conservative reading of the Constitution holds that some form of crime, at least, is necessary for impeachment.

House Republicans have complained about the limited access to closed-door House impeachment investigation and depositions leading up to the House’s impeachment vote should all be public and the transcripts should be released. Access to the House’s investigative hearings has been limited to members of the three House committees involved– Foreign Affairs, Intelligence and Oversight, and Reform which have a majority of Democratic House Members but Republican committee members can participate in the investigation and question the parties being deposed. Intelligence Committee Chairman Adam Schiff, D-Calif., said private sessions are needed to prevent witnesses from hearing each other, the same protocol used by prosecutors in criminal investigations.  House Minority Leader Kevin McCarthy, R-Calif., called Schiff a liar and a partisan leading a witch hunt and that the venerable Intelligence Committee has become the partisan Impeachment Committee.

NLR: How much of the House’s investigation needs to be in the form of public hearings?

Robbins: There is no Constitutional requirement that impeachment hearings be public or private, but as a practical and a political matter, it is obvious that impeachment hearings need to be conducted in public; after all, building public support for impeachment is a sine qua non (an essential condition) of a vote to impeach, let alone a vote to convict. On the other hand, there is nothing remotely nefarious about what the Minority refers to as “closed door” depositions; Congressional investigations routinely utilize depositions, by definition closed to the public, as a device to ascertain which witnesses have relevant evidence and what that relevant evidence is, in order to assess the strength of a “case” and to more effectively organize any public hearings associated with the investigation.

Intelligence Committee Chairman Adam Schiff said private sessions are needed to prevent witnesses from hearing each other. House and Minority Leader Kevin McCarthy said “I can’t even go down there and read the transcript,” alleging that Republicans have not been allowed to cross-examine the hearing witnesses, which is not accurate.

The reality is that Republicans have participated in each deposition, but their role is limited by the Democratic committee majority. Both Republicans and the Democrats get equal time to ask questions.  Forty-seven Republicans from the Intelligence, Foreign Affairs, and Oversight Committees have been allowed to attend and participate in the depositions.

NLR: What actually goes on in Congressional hearings? What is the timeline between the hearings and the public testimony?

Robbins: From personal experience, I can tell you that the preparation to question witnesses in a Congressional investigation is an intense process, made all the more intense by the volume of material that has to be consumed in order to question effectively and by the shortage of time within which to consume it. Here, for example, there is a steady drumbeat of witnesses being called for deposition on only a few days’ notice to all concerned, and then only a week or so between the deposition and the public hearing. The process is made more intense by the fact that there are other staff lawyers, and Members, and communications experts, all of whom quite properly want to weigh in on the thrust of the questioning, the messaging of the questioning, and the like.

In the hearings, according to the Wall Street Journal, Adam Schiff opens with remarks and then invites a Republican counterpart to do the same.  Each party receives a block of time to ask questions, and a timekeeper keeps track and moves the proceedings along.  Rep. Mark Meadows (R., N.C.), told the Wall Street Journal that each party gets equal time.  “There is a clock, with a timekeeper,” he said.  Other Republicans, including Reps. Jim Jordan of Ohio and Scott Perry of Pennsylvania have been attending the hearings regularly.  Besides Mr. Schiff, Reps. Jamie Raskin of Maryland, Sean Patrick Maloney of New York, Eric Swalwell of California and Gerry Connolly of Virginia have been attending for the Democrats.  Eventually, the committee voted down party lines to advance the impeachment proceedings.

Complicating the evidence-gathering process is the lack of cooperation from the White House, including Trump administration officials defying subpoenas.  Per Adam Schiff, the White House isn’t cooperating and is defying several subpoenas, which Schiff predicted would be considered obstruction and additional evidence “of the wrongfulness of the President’s underlying misconduct.”  When the House Leadership unveiled the articles of impeachment on December 10, 2019, they first focused on the Trump’s pressuring of Ukraine to investigate Joe Biden before the 2020 election by delaying a White House meeting and $400 million in US Security Aid, but the second focused on the obstruction related to the investigation into his misconduct.

NLR: What are the consequences if a witness refuses to testify at a hearing, or otherwise ignores a subpoena? 

Robbins: Under law, there are to be consequences to refusal to testify or disobedience of a subpoena to produce documents, in particular, contempt findings that are appropriately enforced by federal courts.

Mr. Schiff, accused by House minority Whip Steve Scalise of “…trying to impeach a president of the United States… behind closed doors,” pointed out that the president’s former attorney, Michael Cohen, pled guilty to lying to Congress out of loyalty to the president, and was recently sentenced to three years in prison as a result. Still, the White House has consistently refused to cooperate with the inquiry, citing executive privilege as justification to keep those subpoenaed from actually appearing under oath. Citing executive privilege is a not-uncommon tactic to prevent disclosure of goings-on at the top end of the executive branch, but it doesn’t always work well for those using it, and the privilege itself remains a cloudy legal concept.

NLR: What privileges, if any, can a witness assert?

Robbins: With respect to privileges, there are, of course, the “Big Three”: the attorney-client privilege, the Executive Privilege, and the Fifth Amendment. When those privileges are invoked, as a practical matter they are beyond being challenged, except in extreme circumstances, and for the purpose of this impeachment proceeding, where the time constraints are what they are, if they are invoked their invocation will effectively block disclosure of evidence.

There have been many examples of witnesses invoking their Fifth Amendment rights to avoid answering questions in Congressional hearings.  One prominent example is the case of Lt. Colonel Oliver North in the hearings around the Iran-Contra affair during Ronald Reagan’s presidency.

NLR: If the House votes to ratify the articles of impeachment, the Senate will hold a trial.  Who acts as a prosecutor in this instance, and who acts for the defense?  How is that determined?

Robbins: Since the House is the indicting authority, it will choose who presents the case for removal to the Senate. It will in all likelihood be one or more members of the House.

By way of reference, for President Andrew Johnson’s impeachment trial in 1868, an impeachment committee was made up of seven members of Congress, led by Thaddeus Stevens.  President Bill Clinton’s impeachment featured a team of thirteen House Republicans from the Judiciary Committee.

NLR: Why does the Supreme Court get involved in impeachment proceedings, and what is their role?

Robbins: As for the role of the Supreme Court, it is the Chief Justice who presides over the trial, per the Constitution, and it is he who will be involved in those proceedings, and not the full Court—at least this has not occurred in our limited experience with impeachment.

While it may seem plain that the Supreme Court would have a larger role in the impeachment proceedings, that’s not truly the case. The chief justice is, of course, given the power to preside of the Senate trial by the Constitution as a part of the doctrine of separation of powers – as Justice Joseph Story argued – removing the Vice President from Senate leadership to uphold the trial’s impartiality. Should there be a conviction in the Senate, and the convicted president were to try and engage the highest court, SCOTUS has already found that the Senate’s impeachment procedures are nonjusticiable, because of Article I’s designation of the Senate as the “sole power to try all impeachments” (Nixon v United States, 1993).

Many thanks to Mr. Robbins for his time and for helping break down these complex issues during a complicated time.

Copyright ©2019 National Law Forum, LLC

The Future of the CFPB: the Executive Branch and Separation of Powers

On October 18, 2019 the Supreme Court granted certiorari in Seila Law v. Consumer Financial Protection Bureau (CFPB). SCOTUS  will answer the question of “whether the substantial executive authority yielded by the CFPB, an independent agency led by a single director, violates the separation of powers,” and the Justices requested that the parties brief and argue an additional issue: “If the Consumer Financial Protection Bureau is found unconstitutional on the basis of the separation of powers, can 12 U.S.C. § 5491(c)(3) [the for-cause removal provision] be severed from the Dodd-Frank Act?”

Origins of the Consumer Financial Bureau and Previous Constitutional Challenges

The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank) established the CFPB as an independent bureau within the Federal Reserve System designed to protect consumers from abusive financial services practices.  The structure and constitutionality of the CFPB has been addressed before. In 2018, the D.C. Circuit held in PHH Corp. v. CFPB, No. 15-1177 (D.C. Cir. 2018) (PHH) that the current structure of the CFPB, which features a single director that cannot be removed by the president except for cause, “is consistent with Article II” of the Constitution.

The PHH opinion stated that Congress’ response to the consumer finance abuse that led up to the 2008 financial crisis purposely created the CFPB to be “a regulator attentive to individuals and families”  because the existing regulatory agencies were too concerned about the financial industry they were supposed to supervise. It was determined that the CFPB needed independence to do its job, and the CPFB structure was designed to confer that independence.   Neither PHH Corporation nor the CFPB filed a petition for certiorari to ask the Supreme Court to review the D.C. Circuit’s decision.

Background of the Seila Law Case

In Seila Law v. Consumer Financial Protection Bureau (CFPB) the Petitioner is a law firm that provides a variety of legal services to consumers, and as part of a CFPB investigation into whether Seila Law violated certain federal laws, the CFPB issued a civil investigative demand seeking information and documents. Seila Law objected to the demand on the ground that the CFPB was unconstitutionally structured and filed a petition to a federal district court for enforcement. The district court held that the structure of the CFPB did not violate the separation of powers and was constitutional, after which that district court decision was appealed. The Ninth Circuit affirmed, noting that the issues had been “thoroughly canvassed” in the DC Circuit it in PHH, and adopting the position of the PHH majority that the CFPB’s structure is constitutional. Seila Law filed a petition for a writ of certiorari with the U.S. Supreme Court seeking review of the Ninth Circuit’s ruling, and here we are.

An Experienced Federal Agency Litigator’s Perspective

Mr. Anthony E. DiResta, is co-chair of Holland & Knight’s Consumer Protection Defense and Compliance Team, and a former Director of the Federal Trade Commission’s (FTC) Southeast Regional office.  Mr. DiResta was kind enough to take some time with the National Law Review to discuss the upcoming Seila Law decision and its impact on the future of the CFPB.

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NLR: Can you sum up the CFPB and separation of powers story to this point from your own viewpoint?

DiResta: The Supreme Court has decided to review this case because of the constitutionality of the CFPB’s structure, based on separation of powers. Any single leader in government who doesn’t serve at the pleasure of the President may simply have too much power, and people with certain jurisprudential philosophies about how government should be run find that an offensive situation. That’s the theory behind the certiorari decision and why SCOTUS is addressing the case – it’s really a question of constitutionality and the power of administrative agencies. Additionally, the Court will look at the severability of the CFPB in Dodd-Frank, whether it’s possible to just restructure the single leader structure, and then leave the Bureau intact to continue business as usual.

NLR: It seems many of these issues could’ve been avoided had the CFPB been structured more as a multi-member commission initially or if Congress had simply expanded FTC powers.  Why do you think it was structured differently?

DiResta: That’s a matter of speculation – but I think it might have gone something like this: After the Recession in the early 2000s, many people felt that government was asleep at the wheel, letting  devastating things in banking and finance and servicing to consumers run out of control, which led to serious blunders and mishaps. So it was decided that a new office was needed – and this was led by representatives in Congress like Elizabeth Warren.

Why they didn’t simply expand the power and resources of the FTC is also pure speculation – they could have merely expanded FTC’s jurisdiction and reach to achieve similar outcomes and intentions.

The Constitutionality of the CFPB

NLR: Do you think SCOTUS will rule in favor of the petitioner in Seila Law, and find the structure of the CFPB unconstitutional?

DiResta: I do. I suspect that SCOTUS will, in fact, find the structure unconstitutional on the basis of the separation of powers. But I also believe that an even more interesting part of that will be the discussion of the severability of the organization’s leadership, leaving the CFPB itself intact. If the structure is unconstitutional, how the Court recommends a remedy to correct that unconstitutionality could have far-reaching effects. This is so important – and we should all be excited that we get to watch this corrective process in action.

NLR: Is there a chance this would result in a complete restructure of CFPB, or even its possible dissolution?

DiResta: I really don’t think so – and the Court couldn’t do that anyway. The Court could recommend to Congress that a certain path for correction be followed, but it will be up to Congress to rearrange the CFPB (if that’s the result) in the best way. The legislative branch will just have to make sure it’s done, in a way that the Court recommends.

Some More Background on CFPB Constitutionality Litigation

Then-Judge, now Justice Kavanaugh was on the U.S Court of Appeals Court for the D.C. Circuit for the 2018 en banc ruling in the PHH Corp. v. CFPB case and on the 2016 three-judge decision. Judge Kavanaugh authored two opinions regarding PHH:  declaring a certain aspect of the CFPB to be unconstitutional and in 2018, the dissenting opinion from the en banc U.S. Court of Appeals for the D.C Circuit’s decision overruling the 2016 panel opinion.

The 2016 panel opinion determined that the structure of the CFPB is unconstitutional stating:  “The concentration of massive, unchecked power in a single Director marks a dramatic departure from settled historical practice and makes the CFPB unique among independent agencies.” And the 2016 panel also presented a view of the Constitution that vests with the president an extensive degree of unilateral authority over the executive branch’s enforcement of federal laws.

NLR:  Since Justice Kavanaugh was a judge involved in a similar case – PHH Corp. v. CFPB – why is he allowed to rule on this matter again?

DiResta: I’m not an expert on judicial ethics but there does not appear to be improper bias in Kavanaugh reviewing this decision. Rather, his views in PHH reflect a philosophical perspective on separation of powers and the role of administrative agencies.  In fact, I expect they’ll use his past ruling on PHH as part of their internal discussion.

Seila Law v CFPB and Election Politics

NLR: It’s difficult to ignore the political undertones of this case:  a watchdog organization created, in part, with input from some high-profile democrats (most notably Elizabeth Warren, who is currently running as a candidate for president) is being challenged and that challenge is being echoed in support by largely conservative elements.  In your view, is this case a litmus test for the Supreme Court delving into political issues, something it has largely tried not to do?

DiResta: No – I really don’t see this as political. Again, this is a purely constitutional question, a legal question, and it’s exactly the kind of case the SCOTUS should be deciding. If we’re honest, this is a perfect example of why we have SCOTUS in the first place: To examine how effective our public servants are behaving and performing their responsibilities under the constitutional structure revealed in the separation of powers doctrine.

Besides that, politically speaking, this could boomerang. Consider: if the Democrats win the White House in 2020, and the Court were to change the structure, that would offer any Democratic President the opportunity to appoint a new Director in 2021, and Kathleen Kraninger’s term isn’t up until 2023.

Informed Democracy at Work

While the situation with CFPB and its constitutionality is demonstrably important, DiResta touched on a few more salient – though no less important – points.

DiResta: Democracy isn’t supposed to be easy. Democracy is hard – it’s messy and complicated. It’s in its nature, and in the nature of different ideas.

In a free marketplace of ideas, people will clash when citizens are free to express themselves, and there will always be conflict – but it’s out of resolving those conflicts that democracy claims – and grows – its power and attraction. It’s so important that we – the people – see this and get to comment on it – to watch this happening.

NLR: Absolutely. In a world where the news cycle has compressed from days, to hours, to minutes – while attention spans have diminished in similar fashion – it’s increasingly important that these monumental workings in government are transparent, and that people see them.

DiResta: I couldn’t agree more. And – as a young lawyer, I  had the privilege to work with some very dedicated and highly professional journalists who understood journalism as a public service, not as entertainment.  These journalists saw themselves as educators, bringing light to the processes and prospects of government to citizens. And that’s how the media serves effectively as the Fourth Branch of government. A branch that presents a constant check to the power of government and its branches, and that gives the people the knowledge to make better decisions, and to vote for the best people and the best situations.

We sincerely appreciate Mr. DiResta for his thoughtful insights and for taking time out of his busy schedule to share them with the National Law Review.

Copyright ©2019 National Law Forum, LLC

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 Tweet

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.

Copyright ©2019 National Law Forum, LLC

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

Can The Secretary Of State Refuse To Enforce California’s Board Gender Quota Law?

The constitutional infirmities of California’s novel board gender quota law have been remarked on by everyone from former Governor Jerry Brown to the legislative consultants who prepared bill analyses.  Now there is a pending constitutional challenge.  See Legal Challenge To California Board Gender Quota Law Filed.  In the meantime, should Secretary of State continue to expend funds to administer and enforce a law that is constitutionally suspect?

It is doubtful that the Secretary of State may refuse to enforce the law even if he concludes that it is unconstitutional.  The reason lies with Article III, Section 3.5(a) of the California Constitution which provides:

“An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power:

(a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional;”

The California Constitution does not define “administrative agency” and it thus may be argued that this provision does not apply to a constitutional officer per se.  However, a panel of the Court of Appeal has assumed that the Secretary of State is subject to the policy, if not the letter, of Article III, Section 3.5(a). Stirling v. Jones, 66 Cal. App. 4th 277, 288 n.3 (1998).  The California Supreme Court granted, and then withdrew, review of the case.  At the request of the Secretary of State, the Supreme Court ordered the depublication of the case.  Stirling v. Jones, 1998 Cal. LEXIS 6656.

© 2010-2019 Allen Matkins Leck Gamble Mallory & Natsis LLP
Read more about board diversity on the National Law Review Corporate & Business Organizations law page.

USCIS Revising, Updating Naturalization Test

USCIS is on its way to revising and updating the Naturalization Test. It will start with a pilot test involving about 1,400 volunteers this fall, then a second field testing pilot in spring 2020.

Last updated in 2008, the new Naturalization Test is expected to be implemented as soon as late-2020.

Recent issues surrounding the Administration’s attempt to add a citizenship question to the 2020 census and delays in processing naturalization applications have prompted the Acting Director of USCIS, Ken Cuccinelli, to tell the Washington Post that paranoia regarding the reason for these changes is not warranted. People who are paranoid will be “sorely disappointed when [the new test] looks like another version of the [current] exam.” Decennial revisions are proposed to “ensure that the civics education requirements remain a meaningful aspect of the naturalization process.”

The working group revising the test includes staff from across USCIS. The group is “soliciting the input of experts in the field of adult education to ensure that this process is fair and transparent.”

Currently, naturalization applicants are asked 10 randomly selected questions from a list of 100 (the list is available on the USCIS website). The questions are on American government, history, and civics and reflect middle school and high school curricula. To pass, 6 of the 10 questions must be answered correctly. There is a 90% pass rate among applicants. A 2018 survey by the Woodrow Wilson National Fellowship Foundation showed the pass rate among U.S. citizens was only 36%. Citizens over the age of 65 had the highest pass rate: 74%.

Test yourself. Answer the following (answers are at the bottom of this post)

  1. Why did the colonists fight the British?

  2. When was the Declaration of Independence adopted?

  3. How many amendments does the Constitution have?

Along with changes to the civics test, the agency also is considering changes to the English language proficiency test. According to the naturalization statute, applicants must read and write “simple words and phrases” and “no extraordinary or unreasonable condition shall be imposed upon the applicant.”

When Francis Cissna, then-Director of USCIS, announced the revision he noted that the new tests would continue to provide “special consideration” to those over 65 who have lived in the U.S. as green card holders for at least 20 years. He also stated that “due consideration” would be given to “applicants’ education, background, age, length of residence in the United States, opportunities available and efforts made to acquire the requisite knowledge, and any other elements or factors relevant to an appraisal of the adequacy of the applicant’s knowledge and understanding.”

Last year, 750,000 applicants were naturalized. In the years preceding presidential elections, the application levels typically increase.

****

The answers:

  1. Because of high taxes (taxation without representation), because the British army stayed in their houses (i.e., boarding and quartering), or because they did not have self-government
  2. July 4, 1776
  3. 27
Jackson Lewis P.C. © 2019
This article is written by Peter A. Reca of Jackson Lewis P.C.
For more immigration news, see the National Law Review Immigration type of law page.

“Bikini Baristas” Ordered to Cover-Up

The 9th Circuit court of appeals has enforced the City of Everett, Washington’s Dress Code Ordinance and amendments to the Lewd Conduct Ordinances. These ordinances require employees of “Quick-Service” facilities to cover “minimum body areas” (the dress code ordinance specifically stated that it was targeting an apparent influx of “bikini barista stands”). The owner of “Hillbilly Hotties,” a coffee stand where employees wear only bikinis, and several of the bikini baristas themselves challenged the ordinances as unconstitutionally vague. Plaintiffs also alleged that the Ordinances violated their First Amendment right to free expression.

The Court of Appeals reversed a lower court ruling that prohibited enforcement of the Ordinances on the ground that they are unconstitutionally vague. The appeals court explained that a person of ordinary intelligence would be able to understand the terms in the Ordinance and would be adequately informed of which body areas cannot be exposed or displayed.

The Ninth Circuit also concluded that Plaintiffs’ first amendment claim faltered based upon their failure to show a great likelihood that their intended message would be understood by those who received it. The court found that the baristas’ acts of wearing pasties and g-strings in close proximity to customers did not necessarily convey the baristas’ purported message of female body confidence and empowerment.

Read the full decision here.

 

© 2019 Proskauer Rose LLP.
This article was written by Anthony J Oncidi and Cole D. Lewis of Proskauer Rose LLP.
For more on First Amendment questions please see the National Law Review Constitutional Law page.

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