A TALE OF TWO GREENMOSS BUILDERS
Robert M. O'Neil(fn*)
If ever a pending Supreme Court case deserved the merciful disposition of "improvidently granted," it would seem to be Dun and Bradstreet, Inc. v. Greenmoss Builders, Inc(fn1) Many factors seem to warrant such interment for an elusive and wholly unsatisfying controversy. Arguably, by any objective standard, this case should never have gone beyond a routine and little noted denial of certioriari. Against this unhappy background, let me offer several countervailing and compelling factors that seem to warrant an alternative disposition.
First, this was an essentially trivial dispute between a credit-rating company and a small private and aggrieved subscriber. As Justice Powell noted in his despairing coda on the final day of the 1984 Term, "[this case] involves only a matter of private interest to the parties. In a word, this is a typical common law libel suit."(fn2) After much wrangling among the Justices during nearly two years of the pendency of this case, it lacked any of the majesty of the New York Times Co. v. Sullivan (fn3) libel case, or even of the lesser but still highly visible struggles such as Richard Nixon's epic argument on behalf of Time Magazine in the "Desperate Hours" case,(fn4) or the bizarre if memorable stand-off between Robert Welch and Elmer Gertz which produced a major sequel on libel law and politics.(fn5) Greenmoss Builders, in stark contrast, offered no such redeeming appraisal.
Moreover, the Vermont Supreme Court was a highly unlikely venue in which to find a major First Amendment test case. Unlike even the New Hampshire Supreme Court, which had had a few encounters with these issues,(fn6) Vermont courts had little preparation or insight for such a dispute.
Third, and of even greater import, Justice Powell candidly announced at the close of his benediction that late June day, "[t]here is, however, no Court opinion."(fn7) Thus, the protracted and painful course of litigation during the pendency of this case ultimately left the Justices bereft even of a single acceptable theory of the case. Fragmentation and division are one thing in constitutional jurisprudence; hopeless splintering of this sort is quite another, and creates consequence ranging from uncertainty to chaos.
There is more. It would not be unfair to observe that the Greenmoss Builders case brought out the very worst among an increasingly contentious group of Justices. As Professor Wermiel and Mr. Levine candidly note, "the deliberations in Greenmoss Builders revealed deep 'hostility' within the Court 'to the New York Times v. Sullivan line of cases' . . . . As a result, the case was 'fiercely fought out' in a manner largely unseen by the public . . . ."(fn8) While falling far short of the cataclysmic divisions that would eventually split the high Court in the 2000 presidential election case of Bush v. Gore, (fn9) such intense squabbling over an essentially trivial tort case (albeit with constitutional implications) seemed unnecessary and potentially quite damaging.
As a result of such deep internal divisions in Greenmoss Builders, one might fairly note that matters of First Amendment law that seemed to have been reasonably well resolved (if not by complete accord) between the Brennan and White factions following the New York Times decision had at least produced a tolerable modus vivendi during the 1970s. What Greenmoss Builders did a decade later was to reopen many old wounds and leave several groups of Justices essentially adrift. It would have seemed far better simply to have avoided granting the case at all, or after having taken that initial step to have taken the merciful measure of dismissing as "improvidently granted."
Finally and perhaps most damaging of all elements within this critique, Greenmoss Builders essentially led the Court nowhere despite the many months of painful dissension. A satisfying outcome after interminable contest might at least have yielded ultimate satisfaction, but when the dust settled and the final decree emerged from the confusion, that was not to be the case. There, quite simply, I would rest my case for a barely visible docket order dismissing the case as "improvidently granted."
The Greenmoss Builders judgment, however, invites a completely different and far more satisfying scenario. An incurable optimist may now step up to entertain and expound a far more hopeful posture. For starters, readers of the Levine and Wermiel Article(fn10) are the grateful beneficiaries of one of the most ambitious and accomplished case studies of constitutional litigation to be found anywhere. These consummate First Amendment experts have applied the precise tools and techniques of judicial surgery to a truly daunting task. Indeed, rather than urging dismissal of Greenmoss Builders as unwisely granted, an observer who was ready to take a second look in the face of an impossible task would appear somehow to have managed to assume and indeed complete an impossible task.
In taking on that daunting assignment, Professor Wermiel and Mr. Levine engaged in extensive original research with an uncanny capacity to find the single kernel in the haystack that would help reconcile insights despite severe odds. The degree of access to certain of the Justices' personal papers-especially those of Justice Brennan, including his Term notebooks and comments-have already added immeasurably to our understanding, extending far beyond the immediate context of Greenmoss Builders. What readers have now gained is a genuine judicial treasure trove, which simply happens to focus on a single case but extends far more broadly in time and space. Thus, if nothing else, the revival-indeed essentially the discovery-of Greenmoss Builders has measurably enhanced First Amendment scholarship.
A couple of points might be added in extenuation. As Levine and Wermiel's introductory Abstract enlightens even the casual reader, their Article most thoughtfully addresses a number of issues, albeit far more clearly than did the Justices themselves. Among those issues were the process by which the post-New York Times decisions like Gertz v. Robert Welch, Inc.,(fn11)and Rosenbloom v. Metromedia, Inc.,(fn12)were reconsidered and placed in a still evolving context; how the Justices struggled to make sense out of the presumed and punitive damages issues in libel cases; and the perplexing, forever seemingly unresolved, issue of the contrasting treatment of media and non-media defendants.
By way of conclusion, let me offer my own two most persuasive and redeeming observations. As the co-authors themselves note near the very end of this timely article, "the Court now appears largely content with the shape of the constitutional law of defamation it crafted in Sullivan and Gertz."(fn13) Incredibly, as the authors add with a sense of obvious relief, "[the Court] has not deemed it necessary to consider a defamation case on its merits in more than two decades."(fn14) With some sense of satisfaction, they conclude by noting that "the import of Greenmoss Builders appears to be that, in the end, it preserved-albeit without fanfare-a fundamental tenet of First Amendment jurisprudence at a point in history when it very much remained vulnerable."(fn15) Thus, the coda of the piece appropriately reflects a high degree of ultimate satisfaction despite the intervening turmoil of the mid-1980s.
Finally, of course, explicit recognition of Justice Brennan's singular role merits close attention. Professor Wermiel and his co-author Seth Stern have noted fully in their classic Court biography the extent to which Justice Brennan shaped this branch of First Amendment law through his authorship of the New York Times Co. v. Sullivan opinion.(fn16 )As the authors of the Brennan biography note in an extensive analysis of the antecedents and implications of the New York Times ruling, the case was a natural for this "Liberal Champion."(fn17) In the year since Justice Frankfurter's retirement-and thus the ultimate empowering of a Court which had lacked a solid majority for eight years-Brennan had already written a couple of seminal free speech and free press judgments. Such rulings as NAACP v. Button, (fn18) where he advanced First Amendment protection for litigation on behalf of civil rights and other public interests against state champerty, barratry, and other such laws, already gave clear evidence of his primacy in this field. Thus the Chief Justice's assignment of the New York Times case to Justice Brennan could hardly have been faulted, and the ensuing task appeared wholly congenial. Yet, as Wermiel and Stern have aptly observed in their biography, "[t]his case would prove to be another nail biter in which Brennan was not sure of the ultimate disposition of his allies until the very last minute. He and his clerks generated eight drafts in less than two months-an extraordinarily compressed and demanding schedule."(fn19)
I.GREENMOSS BUILDERS ANTECEDENTS: STATE COMMON LAW PRIVILEGE
The roots of the New York Times libel ruling run far deeper than conventional wisdom might suggest. As early as 1908, the Kansas Supreme Court issued an opinion in the case of Coleman v. MacLennan, (fn20) which announced as state common law the doctrine of "actual malice" that Justice Brennan would...
