THE LANDMARK THAT WASN'T: A FIRST AMENDMENT PLAY IN FIVE ACTS
Lee Levine(fn*) and Stephen Wermiel(fn**)
Abstract: What follows is an original case study of our First Amendment law of free expression and how it is created by the Supreme Court. Drawing heavily on heretofore unpublished internal papers from the chambers of Justice William Brennan and other Justices, this Article reveals how the 1964 landmark decision in New York Times Co. v. Sullivan was once in serious jeopardy of being overruled. In the course of this discussion, and in their examination of the evolution of the Court's decision in Dun and Bradstreet v. Greenmoss Builders (1985), the authors describe and analyze: (1) how and to what extent the holdings in Sullivan and Gertz v. Robert Welch, Inc. (1974) came to be reconsidered; (2) how the nature of the expression at issue in Greenmoss Builders factored into the examination of this defamation case and changed the way the First Amendment limits the common law of defamation; (3) how the members of the Burger Court considered the question of the media versus non-media status of a defendant in a defamation case; (4) how the Justices grappled with the question of the legitimacy under the First Amendment of presumed and punitive damages awards in defamation actions; (5) how the issue of the difference between private speech and public speech came to take on constitutional significance; (6) whether the Court should reconsider the balance it struck in Sullivan between the public's interest in being fully informed about public officials and public affairs and the competing interest of those who have been defamed in vindicating their reputation; and (7) how all of this ultimately influenced and determined the outcome in Greenmoss Builders.
In the swirl of this discussion and examination of the historical record, the reader gets a rare glimpse of the inner workings of the Court and its clerks along with a better appreciation of how consensus is built and lost, replete with occasional barbs. Moreover, this Article reveals just how laborious the shaping of First Amendment doctrine can be, given the issues (some never fully discussed in published opinions) raised by the Justices in their consideration of the Greenmoss Builders case. In these respects and others, this Article informs the reader of some of the central (albeit internal) moments in the history of defamation law following Sullivan and thereby sheds new light on how the law in this area might be shaped in the future.
PROLOGUE.............................................................................................3
I. ACT I-THE DRAMA BEGINS.....................................................7
A. The Protagonists..................................................................... 11
B. The Argument........................................................................ 14
C. The Initial Conference...........................................................18
D. The Second Conference.........................................................21
E. Brennan Takes Charge...........................................................23
F. Counting to Five..................................................................... 27
G. Powell's Problems..................................................................29
H. Powell's Dissent - Take One.................................................32
I. The Undecided.......................................................................34
J. The Fight for White................................................................36
K. Strange Company...................................................................37
L. Two Questions.......................................................................39
II. ACT II-THE END OF PUNITIVE DAMAGES AND THE MEDIA/NONMEDIA DISTINCTION?.........................................42
A. Powell Prepares for Reargument............................................ 42
B. The Reargument and Conference........................................... 46
C. The Battle Resumes...............................................................52
D. Powell's Folly........................................................................56
E. Waiting for White .................................................................. 59
III. ACT III-THE ASSAULT ON sSULLIVAN AND THE "PUBLIC/PRIVATE" DISTINCTION...........................................64
A. White's Bombshell.................................................................64
B. Powell's Appeasement........................................................... 67
C. White's Reaction....................................................................69
D. Settling for a Plurality............................................................71
E. Enter Justice Rehnquist..........................................................73
IV. ACT IV-DEFENDING SULLIVAN AND REGRETTING GERTZ............................................................................................76
A. The Contours of Compromise................................................76
B. Brennan Strikes Back.............................................................79
C. Enter Justice Stevens..............................................................83
D. White Responds and Powell Reacts....................................... 85
E. The Chief Justice.................................................................... 86
V. ACT V-LITTLE ADO ABOUT SOMETHING?.........................90
A. Brennan Regroups..................................................................90
B. Powell Reworks ..................................................................... 91
C. Brennan's Final Retreat ......................................................... 93
D. The Chief Reappears.............................................................. 97
E. And in the End ....................................................................... 99
EPILOGUE .......................................................................................... 101
[D]ebate on public issues should be uninhibited, robust, and wide-open. (fn1)
-Justice William J. Brennan (1964)
PROLOGUE
At this time next year, legal scholars, journalists, media lawyers, and at least some portion of the generally informed citizenry will commemorate the fiftieth anniversary of the Supreme Court's decision in New York Times Co. v. Sullivan. (fn2) When it was decided in March 1964, the renowned free speech philosopher Alexander Meiklejohn famously declared Justice William J. Brennan's opinion for the Court to be "an occasion for dancing in the streets."(fn3) In his seminal treatment of the case published in 1991, shortly before Justice Brennan resigned from the Court on which he had then served for nearly thirty-four years, journalist Anthony Lewis hailed Sullivan as effecting "a sea change . . . in the law of the First Amendment," one that has since then caused the Supreme Court to give "the amendment's bold words their full meaning."(fn4) More recently, the Court emphatically reaffirmed its allegiance to the theory of free expression that Justice Brennan set out in Sullivan, holding in Bartnicki v. Vopper (fn5) that "our 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open'"(fn6) makes it "clear" that even "a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern."(fn7)
Over the years, however, Sullivan has had its share of detractors as well, including not only those who believe they have been harmed by the publication of defamatory falsehoods, but also an assortment of academics, pundits and judges.(fn8) Most recently, Justice Antonin Scalia singled out Sullivan as the best example he could conjure of constitutional law run amok, an illegitimate declaration by Brennan and the other "living constitutionalists" sitting on the Warren Court that, "[y]es it used to be that . . . George Washington could sue somebody that libeled him, but we don't think that's a good idea anymore."(fn9)
Sullivan, of course, was not the Court's last word on the role of the First Amendment in limiting the rights of Presidents and everyone else to "sue somebody that libeled" them. In the first decade after it was decided, the Court consistently expanded Sullivan's reach, but this process took a decisive turn in 1974 with Justice Lewis Powell's opinion for the Court in Gertz v. Robert Welch, Inc.(fn10) There, Powell sketched out a complicated scheme of First Amendment-based limitations on the common law of defamation pursuant to which (1) public officials and public figures could not sue successfully unless the defendant had published a defamatory falsehood about them with "actual malice"-i.e., knowledge of its falsity or reckless disregard for the truth; (2) other defamation plaintiffs could not prevail unless the defendant could be shown to have published the falsehood with some degree of fault (to be set as a matter of state law); and (3) no defamation plaintiff could recover presumed or punitive damages without proving "actual malice."(fn11)
Unlike Sullivan, in which the Court was unanimous in its result and no Justice contended that the First Amendment...
