Amicus Curiae Brief — Competitive Enterprise Institute, et al., Petitioners v. Michael E. Mann

Supreme Court briefJul 5, 2019

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Nos. 18-1451 & 18-1477

IN THE

Supreme Court of the United States

NATIONAL REVIEW, INC.,

Petitioner,

MICHAEL E. MANN,

Respondent.

COMPETITIVE ENTERPRISE INSTITUTE

AND RAND SIMBERG,

Petitioners,

MICHAEL E. MANN,

Respondent.

On Petitions for Writs of Certiorari

to the District of Columbia Court of Appeals

BRIEF OF AMICI CURIAE

FORMER UNITED STATES

ATTORNEYS GENERAL

SUPPORTING PETITIONERS

Benjamin A. Geslison

BAKER BOTTS L.L.P.

910 Louisiana St.

Houston, TX 77002

(713) 229-1241

Scott A. Keller

Counsel of Record

BAKER BOTTS L.L.P.

1299 Pennsylvania Ave. NW

Washington, DC 20004

(202) 639-7700

scott.keller@bakerbotts.com

Counsel for Amici Curiae

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – W ASHINGTON, D.C. 20002

TABLE OF CONTENTS

Interest of Amici Curiae .................................................... 1

Summary of Argument ........................................................ 1

Argument .............................................................................. 2

Courts Should Determine Whether Speech is

Constitutionally Protected to Advance First

Amendment Principles and the Rule of Law

More Generally. ....................................................... 2

Predictable protection of open and

vigorous debate on matters of public

concern is critical to preserving the rule

of law. ................................................................ 3

This Court’s defamation precedents

correctly task judges with deciding

whether challenged speech is protected

or punishable.................................................... 4

More broadly, this Court consistently

holds that judges are best positioned to

evaluate whether speech is protected or

punishable. ....................................................... 6

II. Deferring to Juries on Whether the First

Amendment Protects Speech on Matters of

Public Concern Would Undermine Free

Speech and the Rule of Law. ................................... 9

Juries have not sufficiently protected

dissenters’ speech. ......................................... 10

Unpredictable decision-making is

inevitable if juries decide whether

statements are protected or punishable. .... 11

Speech on public issues will be chilled,

the rule of law will be undermined, and

(i)

public confidence will suffer if plaintiffs

can use local juries to punish unpopular

speech. ............................................................ 13

Conclusion ........................................................................... 15

TABLE OF AUTHORITIES

Page(s)

CASES

Bose Corp. v. Consumers Union of United

States, Inc.,

466 U.S. 485 (1984) ............................................... passim

Evenwel v. Abbott,

136 S. Ct. 1120 (2016) ................................................... 11

Gertz v. Welch,

418 U.S. 323 (1974) ......................................................... 4

Greenbelt Coop. Publ’g Ass’n, Inc. v. Bresler,

398 U.S. 6 (1970) ..........................................................5, 6

Harte-Hanks Commc’ns, Inc. v.

Connaughton,

491 U.S. 657 (1989) .............................................. 8, 12, 14

Hustler Magazine, Inc. v. Falwell,

485 U.S. 46 (1988) .................................... 5, 12, 13, 14, 15

Iancu v. Brunetti,

2019 WL 2570622 (U.S. June 24, 2019) ...................3, 15

Jenkins v. Georgia,

418 U.S. 153 (1974) ......................................................... 8

Keeton v. Hustler Magazine, Inc.,

465 U.S. 770 (1984) ....................................................... 13

Marbury v. Madison,

5 U.S. 137 (1803) ........................................................... 12

(iii)

Markman v. Westview Instruments, Inc.,

517 U.S. 370 (1996) ......................................................... 9

Merck Sharp & Dohme Corp. v. Albrecht,

139 S. Ct. 1668 (2019) ..................................................... 9

N.Y. Times Co. v. Sullivan,

376 U.S. 254 (1964) ............................................ 3, 4, 5, 14

Old Dominion Branch No. 496, Nat’l Ass’n

of Letter Carriers, AFL-CIO v. Austin,

418 U.S. 264 (1974) ..................................................5, 6, 7

Snyder v. Phelps,

562 U.S. 443 (2011) ......................................................... 3

Street v. New York,

394 U.S. 576 (1969) ......................................................7, 8

OTHER AUTHORITIES

1 Sack on Defamation § 4.3.7 (5th ed. 2018) ..................... 4

Antonin Scalia, The Rule of Law as a Law of

Rules, 56 U. Chi. L. Rev. 1175 (1989) ........................... 3

Akhil Reed Amar, Some Comments on

“The Bill of Rights as a Constitution”,

15 Harv. J. L. & Pub. Pol’y 99 (1992) ....................10, 11

Henry P. Monaghan, First Amendment

“Due Process,”

83 Harv. L. Rev. 518 (1970) ....................................10, 11

Robert K. Puglia, Freedom is not Free,

36 McGeorge L. Rev. 751 (2005) ..............................3, 12

Pew Research Center, The Partisan

Divide on Political Values Grows Even

Wider (Oct. 5, 2017) ...................................................... 12

Clio Andris et al., The Rise of Partisanship and

Super-Cooperators in the U.S. House of

Representatives, PLoS ONE 6 (Apr. 21, 2015) ............ 12

INTEREST OF AMICI CURIAE 1

Amici are former United States Attorneys General.

Edwin Meese III served as United States Attorney General from 1985 to 1988. Michael B. Mukasey served as

United States Attorney General from 2007 to 2009. Jefferson B. Sessions III served as United States Attorney General from 2017 to 2018. During their tenures as public officials and beyond, amici have been committed to advancing

the rule of law and improving the administration of justice

for all Americans. These cases offer the Court an ideal opportunity to clarify an important issue of constitutional

law: whether courts or juries decide if statements on matters of public concern are protected by the First Amendment. Amici urge that the rule of law and public confidence in the American legal system are advanced when

courts can consistently and predictably protect free

speech by making that determination.

SUMMARY OF ARGUMENT

Courts, not juries, should decide whether speech on

matters of public concern is constitutionally protected or

punishable. Predictable protection of free speech advances the rule of law and enhances public confidence.

Both within and beyond the defamation context, this

Court’s First Amendment jurisprudence has established

standards limiting what speech can be punished. Predictable application of those standards requires independence

and understanding of constitutional principles, making

courts better suited than juries for the task. Juries are a

critical element of our constitutional system, but they are

In accordance with Rule 37.2(a), timely notice of intent to file this

brief was provided to counsel for the parties, and all parties have consented to the filing of this brief. In accordance with Rule 37.6, no counsel for any party has authored this brief in whole or in part, and no

person or entity, other than amici or their counsel, have made a monetary contribution to the preparation or submission of this brief.

(1)

not well-suited to protecting dissenters’ speech. Recognizing that, this Court has repeatedly tasked courts, both in

the first instance and on appellate review, with deciding

whether speech is protected or punishable.

With an increasingly polarized populace and with free

speech under attack, this Court should grant review and reaffirm that courts, not disparate local juries, must decide

whether challenged statements on public issues are constitutionally protected or punishable. Deferring to juries on

that question will chill speech on public matters, undermine

the rule of law, and degrade public confidence, as plaintiffs

use friendly juries to punish unpopular speech.

ARGUMENT

I. COURTS SHOULD DETERMINE WHETHER SPEECH IS

CONSTITUTIONALLY PROTECTED TO ADVANCE FIRST

AMENDMENT PRINCIPLES AND THE RULE OF LAW

MORE GENERALLY.

Courts—not juries—should determine whether challenged speech is constitutionally protected, “both to be

sure that the speech in question actually falls within the

unprotected category and to confine the perimeters of any

unprotected category within acceptably narrow limits in

an effort to ensure that protected expression will not be

inhibited.” Bose Corp. v. Consumers Union of United

States, Inc., 466 U.S. 485, 505 (1984). This, in turn, provides the predictability necessary to maintaining the rule

of law and public confidence in the American legal system.

The court of appeals held that several challenged statements were unprotected because a jury could interpret

them as asserting verifiable facts. See Pet. App. 57a, 65a,

65a n.46. This Court’s review—to reaffirm that judges, not

juries, should decide whether challenged speech is protected or punishable—will advance not just free speech,

but the rule of law more generally.

Predictable protection of open and vigorous

debate on matters of public concern is critical

to preserving the rule of law.

Predictable protection of free speech is a necessary element of the rule of law. In Justice Scalia’s words, “uncertainty [is] incompatible with the Rule of Law.” Antonin

Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L.

Rev. 1175, 1179 (1989). Moreover, “[t]he rule of law relies

on a fragile consensus, which remarkably has endured and

allowed us, uniquely among the nations of the world, to live

as free people for more than 200 years.” Robert K. Puglia,

Freedom is not Free, 36 McGeorge L. Rev. 751, 754 (2005).

“Every day we reap the benefits of our constitutionally

guaranteed freedoms of speech, religion, assembly and association, and freedom from unreasonable and arbitrary

government actions against our persons and property.”

Id. at 751.

This Court has long recognized that it must predictably protect free speech in light of our “profound national

commitment to the principle that debate on public issues

should be uninhibited, robust, and wide-open.” Snyder v.

Phelps, 562 U.S. 443, 452 (2011) (quoting N.Y. Times Co.

v. Sullivan, 376 U.S. 254, 270 (1964)). This is especially

crucial now, “[a]t a time when free speech is under attack.”

Iancu v. Brunetti, No. 18-302, 2019 WL 2570622, at *6

(U.S. June 24, 2019) (Alito, J. concurring).

First Amendment jurisprudence “presupposes that the

freedom to speak one’s mind is not only an aspect of individual liberty—and thus a good unto itself—but also is essential to the common quest for truth and the vitality of society as a whole.” Bose, 466 U.S. at 503-504. As Madison famously observed, “free communication among the people”

on matters of public concern is “justly deemed the only effectual guardian of every other right.” James Madison, Virginia Resolutions (Dec. 21, 1798), in 17 The Papers of James

Madison 303, 341 (David B. Mattern et al. eds., 1991).

Ongoing protection of robust, vigorous debate on matters of public concern is, therefore, one of the Judiciary’s

most important responsibilities. And these certiorari petitions afford the Court an ideal opportunity to resolve a conflict of authority implicating the “special responsibility on

judges whenever it is claimed that a particular communication is unprotected.” Bose, 466 U.S. at 505; see, e.g.,1 Sack

on Defamation § 4.3.7 (5th ed. 2018) (recognizing a conflict

between “all of the federal circuits,” which hold that courts

decide “whether a statement is fact or opinion” and “[s]ome

state courts,” which hold that it is “a triable issue of fact for

the jury”). This Court should reaffirm that the question

whether certain speech is protected or punishable is one for

the courts, which are better positioned to understand and

correctly apply fundamental free-speech protections.

B. This Court’s defamation precedents correctly

task judges with deciding whether challenged

speech is protected or punishable.

This Court’s First Amendment defamation law has

evolved over a series of decisions circumscribing the scope

of speech that is punishable and not protected. These precedents also dictate that courts, not juries, must decide

whether challenged speech is protected or punishable.

Milkovich v. Lorain Journal Co. traced the evolution

of this Court’s defamation precedents. 497 U.S. 1, 14

(1990). The Court began placing First Amendment limits

on defamation claims in New York Times v. Sullivan,

which “recognized the need for ‘a federal rule’” protecting

the right to criticize public figures without having “to

guarantee the truth of all [one’s] factual assertions.”

Milkovich, 497 U.S. at 14 (quoting N.Y. Times, 376 U.S. at

279; Gertz v. Welch, 418 U.S. 323, 334 (1974)). After establishing the New York Times actual malice rule, the Court

required some showing of fault even for “a private individual’s defamation actions involving statements of public

concern.” Id. at 15 (discussing Gertz, 418 U.S. at 347-48).

Then “the Court fashioned ‘a constitutional requirement

that the plaintiff’” in a defamation action on matters of public concern “bear the burden of showing falsity, as well as

fault”—supplanting the “common-law presumption that

defamatory speech is false.” Id. at 16 (quoting Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 776-777 (1986)). Rounding out its recap of First Amendment defamation law’s evolution, Milkovich cited several judicially created “limits on

the type of speech” that may be punishable. Id. at 16-17 (discussing Greenbelt Coop. Publ’g Ass’n, Inc. v. Bresler, 398

U.S. 6 (1970); Hustler Magazine, Inc. v. Falwell, 485 U.S.

46 (1988); Old Dominion Branch No. 496, Nat’l Ass’n of

Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264 (1974)).

With each development in First Amendment defamation law, the Court has generally followed “the rule * * *

that we ‘examine for ourselves the statements in issue and

the circumstances under which they were made to see

* * * whether they are of a character which the principles

of the First Amendment * * * protect.” N.Y. Times, 376

U.S. at 285 (second alteration in original) (quoting

Pennekamp v. Florida, 328 U.S. 331, 335 (1946)). Milkovich

added another gloss to the boundary between protected

and punishable speech, rejecting the existence of “a wholesale defamation exemption for anything that might be labeled ‘opinion.’’’ 497 U.S. at 18. Observing that “existing

constitutional doctrine” was enough, the Court held that a

statement must be evaluated for whether it is “sufficiently

factual to be susceptible of being proved true or false” (and

thus punishable)—or merely “loose, figurative, or hyperbolic language,” “rhetorical hyperbole,” or “imaginative expression” (and thus protected). Id. at 19, 20, 21. This inquiry

evaluates the nature of the challenged statement, asking

objectively what the statement asserts and whether that assertion is “sufficiently factual to be susceptible of being

proved true or false.” Id. at 21.

Strongly implying that this inquiry is for courts,

Milkovich did not remand for a jury to evaluate whether

the challenged statements were susceptible of being

proved true or false. Rather, the Court itself evaluated the

statements, rendering judgment that they were susceptible of being proved true or false and thus punishable. See

ibid. (“We also think the connotation that petitioner committed perjury is sufficiently factual to be susceptible of

being proved true or false.”). This was consistent with the

Court’s earlier declaration that “[w]hen the standard governing the decision of a particular case is provided by the

Constitution, this Court’s role in marking out the limits of

the standard through the process of case-by-case adjudication is of special importance.” Bose, 466 U.S. at 503.

Milkovich thus requires courts to determine the type of

speech at issue and classify challenged statements as belonging to either the broad class of protected speech or a

discrete type of speech that can lawfully be proscribed. This

is a familiar inquiry under other First Amendment defamation cases. See, e.g., Letter Carriers, 418 U.S. at 284-286

(holding that a description of non-union workers as “traitors” “cannot be construed as [a] representation[] of fact”

but is “merely rhetorical hyperbole” and “a lusty and imaginative expression of * * * contempt”); Bresler, 398 U.S. at

13 (holding “as a matter of constitutional law” that an accusation of “blackmail” is not actionable). It is unsurprising,

therefore, that Milkovich did not assign this task to the

jury. Courts properly answer this First Amendment inquiry, which turns on the classification of challenged speech

under standards the Court has articulated over decades.

C. More broadly, this Court consistently holds

that judges are best positioned to evaluate

whether speech is protected or punishable.

Even beyond defamation, this Court has consistently

recognized that judges are responsible under the First

Amendment for evaluating specific speech and classifying

it as protected or punishable. In other words, the “Court

has often recognized that in cases involving free expression

we [judges] have the obligation, not only to formulate principles capable of general application, but also to review the

facts to insure that the speech involved is not protected under federal law.” Letter Carriers, 418 U.S. at 282. “This process has been vitally important in cases involving restrictions on the freedom of speech protected by the First

Amendment, particularly in those cases in which it is contended that the communication in issue is within one of the

few classes of ‘unprotected’ speech.” Bose, 466 U.S. at 503.

Just as in the defamation context, the other “unprotected speech” cases demonstrate more universally that

“the limits of the unprotected category, as well as the unprotected character of particular communications, have

been determined by the judicial evaluation of special facts

that have been deemed to have constitutional significance.”

Id. at 505 (emphasis added). In determining whether particular speech is protected by the First Amendment, courts

have predictably protected free speech, bolstered public

confidence, and helped to preserve the rule of law—by independently making “sure that the speech in question actually falls within the unprotected category and [by confining]

the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure that protected expression will not be inhibited.” Ibid.

In assessing alleged incitements to violence or fighting

words, for example, the Court disagreed that a decision below had “obviate[ed] our duty to examine the record for

ourselves.” Street v. New York, 394 U.S. 576, 589 (1969). Analyzing the statements’ content, it held that the “words,

taken alone, did not urge anyone to do anything unlawful,”

and thus were not punishable incitements to violence. Id. at

591. Nor were the words “so inherently inflammatory as to

come within that small class of ‘fighting words’ which are

‘likely to provoke the average person to retaliation, and

thereby cause a breach of the peace.’” Id. at 592 (quoting

Chaplinsky v. New Hampshire, 315 U.S. 568, 574 (1942)).

In assessing alleged obscenity, the Court conceded

that questions of “prurient interest” and “patent offensiveness” were factual inquiries, but nevertheless found

“substantive constitutional limitations, deriving from the

First Amendment, on the type of material subject to such

a determination.” Jenkins v. Georgia, 418 U.S. 153, 160161 (1974). The Court then held that “[n]othing in the

movie” under review contained “material which may constitutionally be found to meet the ‘patently offensive’ element” of the obscenity standard. Id. at 161.

The Court’s campaign-finance precedents further support the rule that courts should be the arbiters of whether

challenged statements are protected or punishable. In Federal Election Commission v. Wisconsin Right to Life, Inc.,

for example, the Chief Justice emphasized that the question

whether the First Amendment protects “speech on public

issues” “must be objective, focusing on the substance of the

communication rather than amorphous considerations of

intent and effect.” 551 U.S. 449, 451, 469 (2007) (hereinafter

WRTL) (plurality op.) (emphases added). Just as the question whether a political advertisement contains express advocacy, id. at 470, the question whether a statement contains a connotation “susceptible of being proved true or

false,” Milkovich, 497 U.S. at 21, focuses on the content and

substance of the statement—not the intent of the speaker.

As such, the Court properly performed that objective analysis itself in Milkovich. See ibid.

Courts are thus best suited to classify challenged

speech as protected or punishable. A First Amendment inquiry may involve a clean “question of law.” See, e.g., HarteHanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 685

(1989). Or it may involve “special facts” of “constitutional

significance.” Bose, 466 U.S. at 504-505. Whatever the inquiry, a First Amendment analysis will undoubtedly entail

a “tightly circumscribed legal analysis” into which “factual

questions” are “subsumed.” Merck Sharp & Dohme Corp.

v. Albrecht, 139 S. Ct. 1668, 1680 (2019). And when “an issue

‘falls somewhere between a pristine legal standard and a

simple historical fact,’” this Court typically “determin[es]

that, as a matter of the sound administration of justice, one

judicial actor”—the judge—“is better positioned than another to decide the issue in question.” Markman v.

Westview Instruments, Inc., 517 U.S. 370, 388 (1996) (quoting Miller v. Fenton, 474 U.S. 104, 114 (1985)).

The rationale of the Court’s recent Merck decision is

particularly instructive here. Merck held that an administrative law preemption issue “is a legal one for the judge,

not a jury.” 139 S. Ct. at 1679. Just as “judges are normally

familiar with principles of administrative law,” id. at 1680,

they are also much more familiar with First Amendment

principles than juries are. “To understand the question as

a legal question for judges makes sense” because “[d]oing

so should produce greater uniformity among courts; and

greater uniformity is normally a virtue when a question

requires a determination concerning the scope and effect

of” the First Amendment, just as when it involves “the

scope and effect of federal agency action.” Ibid.

II. DEFERRING TO JURIES ON WHETHER THE FIRST

AMENDMENT PROTECTS SPEECH ON MATTERS OF

PUBLIC CONCERN WOULD UNDERMINE FREE

SPEECH AND THE RULE OF LAW.

This Court’s modern First Amendment jurisprudence

has recognized that courts must protect free speech instead

of leaving these fundamental constitutional questions to juries. The Court has recognized that “[p]roviding triers of

fact with a general description of the type of communication

whose content is unworthy of protection has not, in and of

itself, served sufficiently to narrow the category, nor served

to eliminate the danger that decisions by triers of fact may

inhibit the expression of protected ideas.” Bose, 466 U.S. at

505. This Court’s directives have tasked judges with evaluating challenged speech in the first instance and with “conduct[ing] an independent review of the record.” Ibid. Consequently, this crucial role of courts in protecting free

speech has largely displaced juries in distinguishing between protected and punishable speech on matters of public

concern. That displacement has advanced First Amendment protections and the rule of law more broadly. Any retreat from that position would undermine both.

A. Juries have not sufficiently protected dissenters’ speech.

The jury has long and properly been “extolled as a great

guarantor of individual freedom, including freedom of

speech,” but modern First Amendment law has shown that

the attributes that made the jury a bulwark against tyranny

during the colonial and framing periods make it less wellsuited to reliably and consistently apply First Amendment

principles today. Henry P. Monaghan, First Amendment

“Due Process,” 83 Harv. L. Rev. 518, 528 (1970).

More specifically, “the famous free speech cases of the

past were really part of a much larger conflict between a

fairly homogeneous citizenry and an unrepresentative government. In earlier times, therefore, freedom of speech was

conceived primarily as a guarantee that the voice of the people—the majority—would be heard, that unrepresentative

government would be forced to hear, if not heed, their rising voices.” Ibid.; see also Akhil Reed Amar, Some Comments on “The Bill of Rights as a Constitution”, 15 Harv.

J. L. & Pub. Pol’y 99, 104–105 (1992) (“Under the original

(un-Reconstructed) vision, the paradigmatic First Amendment rights-holders are not Jehovah’s Witnesses or Communists or unpopular speakers; they are the Republican

Party of 1800 that actually represented a majority of the

citizens, but whose speech was being suppressed by an unrepresentative Congress.”). “As a bearer of majority sentiments,” therefore, “the jury served as a powerful and

effective vehicle for preventing governmental repression of

majority views.” Monaghan, 83 Harv. L. Rev. at 528; see

also Amar, 15 Harv. J. L. & Pub. Pol’y at 105 (“A jury will

protect popular speech criticizing government, and that is

why there is a strong linkage between free speech and jury

trial in the Eighteenth Century.”).

But although the “jury may be an adequate reflector of

the community’s conscience,” and thus a powerful tool

against government repression of the citizenry, “that conscience is not and never has been very tolerant of dissent.”

Monaghan, 83 Harv. L. Rev. at 529. The jury is not, therefore, a consistently reliable bulwark against majority oppression of unpopular speech. As our nation has become

more pluralistic, it has become even more important for

the rule of law to “do more than simply obey the will of the

majority.” Evenwel v. Abbott, 136 S. Ct. 1120, 1138 (2016)

(Thomas, J. concurring); see ibid. (“The Framers believed

that a proper government promoted the common good.

They conceived this good as objective and not inherently

coextensive with majoritarian preferences.”).

This Court’s modern First Amendment jurisprudence

is thus a recognition that courts must protect the fundamental rights of individuals—especially when those individuals criticize others on matters of public concern. Moreover, although it may be an “unprovable premise that, by

virtue of their training and occupation, judges are less inclined to be affected by passion and prejudice and more

inclined to realize the importance of first amendment values,” it is clear that “action taken by lower court judges is

more readily reviewable than action taken by the jury.”

Monaghan, 83 Harv. L. Rev. at 529.

B. Unpredictable decision-making is inevitable

if juries decide whether statements are protected or punishable.

It is no derogation of the American jury to “recogni[ze]

that ‘judges, as expositors of the Constitution,’ have a duty

to ‘independently decide whether the evidence in the record

is sufficient to cross the constitutional threshold.’” Connaughton, 491 U.S. at 686 (quoting Bose, 466 U.S. at 511).

After all, it “is emphatically the province and duty of the

judicial department to say what the law is.” Marbury v.

Madison, 5 U.S. 137, 177 (1803). Giving judges the role of

protecting free speech mitigates the demonstrated danger

of “allow[ing] a jury to impose liability on the basis of the

jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.” Falwell, 485 U.S. at 55.

Whether local jury bias favors or disfavors a particular defendant, the existence of local bias itself is dangerous. It upsets the “fragile consensus” undergirding the rule of law,

Puglia, 36 McGeorge L. Rev. at 754, by injecting unpredictability into the protection of constitutional rights.

Several recent studies have documented a substantial

and growing polarization among the American public on

matters of public policy. See, e.g., Pew Research Center,

The Partisan Divide on Political Values Grows Even

Wider 1 (Oct. 5, 2017), https://tinyurl.com/y2e7mb9o (reporting “record levels” of polarization among Americans

on “fundamental political values”); Clio Andris et al., The

Rise of Partisanship and Super-Cooperators in the U.S.

House of Representatives, PLoS ONE 6 (Apr. 21, 2015),

https://tinyurl.com/y4mha4xx (documenting an ever-widening political gap among members of the U.S. House of

Representatives between 1949 and 2011). Researchers

have found, for example, a 36-percentage-point average

difference in 2017 between members of the two political

parties on a wide variety of public policy issues. From 1994

through 2004, that partisan gap was only 15-17 percentage

points. See Pew Research, Partisan Divide, at 8.

Neither partisan polarization of the American public

nor voting patterns of individual members of Congress are

perfect proxies for the specific policy views of residents in

any given location. But if those metrics offer even a rough

approximation of how residents across the country view

public policy matters, it becomes obvious that the question

whether a given statement on a contentious public policy

matter is constitutionally protected or punishable would

be answered much differently by juries empaneled in different parts of the country. That unpredictability over

core free-speech rights is detrimental to the rule of law

and to public confidence in the American legal system.

C. Speech on public issues will be chilled, the rule

of law will be undermined, and public confidence will suffer if plaintiffs can use local juries to punish unpopular speech.

The Internet’s global reach and the unlimited circulation of online news sources, blogs, and other publications

has expanded the dangers associated with local juries deciding whether speech is protected or punishable. Because

“the tort of libel is generally held to occur wherever the offending material is circulated,” Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 777 (1984), the Internet has dramatically expanded the range of possible forums in which a

plaintiff can bring a defamation suit. Especially when allegedly defamatory statements concern contentious matters of

national importance or concern, those statements will inevitably be extremely popular with some people and quite unpopular with others. With the entire country to choose

from, a defamation plaintiff will have little trouble finding a

venue in which the content of the allegedly defamatory

statements—or simply the viewpoint of the defendant—is

deeply unpopular. If local juries then decide whether those

statements are constitutionally protected or punishable,

the risk is enormous that juries will do so “on the basis of

the jurors’ tastes or views, or perhaps on the basis of their

dislike of a particular expression.” Falwell, 485 U.S. at 55.

Wisconsin Right to Life remarked that a test for prohibited political speech that “focused on the speaker’s intent could lead to the bizarre result that identical ads aired

at the same time could be protected speech for one speaker,

while leading to criminal penalties for another.” WRTL, 551

U.S. at 468 (plurality op.). In much the same way, a rule that

allows local juries to decide whether the First Amendment

protects specific speech on issues of national concern could

result in the same statement being deemed protected

speech in one jurisdiction, but punishable defamation in another. The only distinction would be whether local juries

agree with the defendant’s position on the issue, not

whether the statements actually contain a connotation “susceptible of being proved true or false.” Milkovich, 497 U.S.

at 21. Such a rule “‘puts the speaker . . . wholly at the

mercy of the varied [public policy views] of his hearers.’”

WRTL, 551 U.S. at 469 (plurality op.) (quoting Buckley v.

Valeo, 424 U.S. 1, 43 (1976) (per curiam)). It also would

“unquestionably chill a substantial amount of political

speech” and stifle debate on issues of public concern. Ibid.

As the Court recognized with the First Amendment’s

actual-malice rule for defamation, “the jury’s application

of such a standard ‘is unlikely to be neutral with respect to

the content of speech and holds a real danger of becoming

an instrument for the suppression of those “vehement,

caustic, and sometimes unpleasantly sharp attacks,” which

must be protected if the guarantees of the First and Fourteenth Amendments are to prevail.’” Bose, 466 U.S. at 510

(quoting N.Y. Times, 376 U.S. at 270). Those risks are not

limited to applying the actual-malice standard; they extend equally to applying Milkovich’s “susceptible of being

proved true or false” rule and to all First Amendment

rules protecting speech. “Uncertainty as to the scope of

the constitutional protection can only dissuade protected

speech.” Connaughton, 491 U.S. at 686.

Nor is the danger limited to the chilling of speech on

matters of public concern. If the public comes to believe

that the First Amendment applies only “on the basis of the

jurors’ tastes or views, or perhaps on the basis of their

dislike of a particular expression,” Falwell, 485 U.S. at 55,

the rule of law and public confidence in our legal system

will suffer as well. Such uncertainty undermines the “principle of viewpoint neutrality that underlies the First

Amendment.” Bose, 466 U.S. at 505. “Viewpoint discrimination is poison to a free society.” Iancu, 2019 WL

2570622, at *6 (Alito, J. concurring). So it is especially important for the Court to reaffirm the “special responsibility on judges whenever it is claimed that a particular communication is unprotected.” Bose, 466 U.S. at 505. That responsibility for courts to decide whether a communication

is protected by the First Amendment is an important bulwark in maintaining the rule of law and public confidence

in our American legal system.

CONCLUSION

The petitions for writs of certiorari should be granted.

Respectfully submitted,

Benjamin A. Geslison

BAKER BOTTS L.L.P.

910 Louisiana St.

Houston, TX 77002

(713) 229-1241

Scott A. Keller*

Counsel of Record

BAKER BOTTS L.L.P.

1299 Pennsylvania Ave. NW

Washington, DC 20004

(202) 639-7700

scott.keller@bakerbotts.com

*Admitted only in Texas. Not

admitted in the District of Columbia. Practicing under the

supervision of principals of

the firm who are members of

the District of Columbia bar.

Counsel for Amici Curiae

July 2019

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.