Petition for Writ of Certiorari — Angela Engle Horne, Petitioner v. WTVR, LLC, dba CBS6

Supreme Court briefNov 1, 2018

Ask Donna

What actually matters in this document.

Text

NO.

In the Supreme Court of the United States

ANGELA ENGLE HORNE,

WTVR, LLC, d/b/a CBS6,

Petitioner,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

Richard F. Hawkins, III

Counsel of Record

The Hawkins Law Firm, PC

2222 Monument Avenue

Richmond, VA 23220

(804) 308-3040

rhawkins@thehawkinslawfirm.net

Counsel for Petitioner

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

QUESTIONS PRESENTED

1. Whether this Court should overrule New York

Times v. Sullivan, 376 U.S. 254 (1964).

2. Whether even if this Court elects not overrule

Sullivan in its entirety, it should revise Sullivan’s

“actual malice” rule so that this exacting standard does

not apply to awards of actual damages in defamation

cases brought by public officials or public figures and,

instead, only applies to awards of punitive and

presumed damages in such cases.

3. Whether an unelected local public-school

budget/finance director with no access to the public

purse or public funds, no policy-making

responsibilities, and no media duties, should have to

forfeit substantial common law protections as to her

individual reputation by being designated as a “public

official” under the status prong of Rosenblatt v. Baer,

383 U.S. 75 (1966).

PARTIES TO THE PROCEEDINGS

Petitioner, plaintiff-appellant below, is Angela

Engle Horne. Respondent, defendant-appellee below, is

WTVR, LLC d/b/a CBS6 (“WTVR”).

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDINGS . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . vi

PETITION FOR A WRIT OF CERTIORARI . . . . . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL AND STATUTORY PROVISIONS . . . . 2

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 6

A. WTVR Defames Horne . . . . . . . . . . . . . . . 6

B. The Seriously Flawed Editorial Process

That Preceded WTVR’s Defamatory News

Story . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

C. And All This Just To Falsely Accuse An

Unelected Public Employee Of Lying On

Her Job Application . . . . . . . . . . . . . . . . 14

D. The Underlying Litigation . . . . . . . . . . . 15

REASONS FOR GRANTING THE WRIT . . . . . . . . . . . . . 16

New York Times v. Sullivan Should Be

Overruled . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

A. Prior to Sullivan, State Defamation Law

Operated Unremarkably . . . . . . . . . . . . . 16

B. Sullivan Arose From Extraordinary And

Unique Factual, Social, and Societal

Circumstances . . . . . . . . . . . . . . . . . . . . . 17

C. This Court’s Decision In Sullivan Went

Far Beyond That Which Was Necessary

To Address The Infirmities Of The

Alabama Jury’s Verdict . . . . . . . . . . . . . 19

D. Sullivan Struck An Improvident Balance

Between The Public’s Interest In Being

Fully Informed About Public Officials And

The Competing Interest Of Protecting

One’s Reputation . . . . . . . . . . . . . . . . . . . 20

II.

Even If This Court Chooses Not To Overrule

New York Times v. Sullivan In Its Entirety,

It Should Revise Its “Actual Malice” Rule Of

Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

III.

Alternatively, This Court Should Revise Its

“Public Official” Jurisprudence So That

Unelected Public Officials Such As Horne Are

Not Subjected To Sullivan’s “Actual Malice”

Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

APPENDIX

Appendix A Opinion in the United States Court of

Appeals for the Fourth Circuit

(June 18, 2018) . . . . . . . . . . . . . . . App. 1

Appendix B Final Order in the United States

District Court for the Eastern District

of Virginia, Richmond Division

(April 10, 2017) . . . . . . . . . . . . . App. 23

Appendix C Opinion in the United States District

Court for the Eastern District of

Virginia, Richmond Division

(April 6, 2017) . . . . . . . . . . . . . . App. 25

Appendix D Order in the United States District

Court for the Eastern District of

Virginia, Richmond Division

(March 8, 2017) . . . . . . . . . . . . . App. 39

TABLE OF AUTHORITIES

CASES

Curtis Publishing Co. v. Butts,

388 U.S. 130 (1967) . . . . . . . . . . . . . . . . . . . . . . 23

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,

472 U.S. 749 (1985) . . . . . . . . . . . . . . . . . . passim

Gertz v. Robert Welch, Inc.,

418 U.S. 323 (1974) . . . . . . . . . . . . . . . . . . . . . . 29

Gulf Publishing Co. v. Lee,

434 So.2d 687 (Miss. 1983) . . . . . . . . . . . . . . . . . 3

Herbert v. Oklahoma Christian Coalition,

992 P.2d 322 (Okla., 1999) . . . . . . . . . . . . . . . . . 4

Lacey v. Judge,

2012 Ohio Misc. LEXIS 6290 (Franklin Cnty. Ct.

of Common Pleas Nov. 2, 2012) . . . . . . . . . . . . . 29

Miami Herald Pub. Co. v. Ane,

423 So.2d 376 (Fla. App. 1982) . . . . . . . . . . . . . 19

New York Times v. Sullivan,

376 U.S. 254 (1964) . . . . . . . . . . . . . . . . . . passim

Rosenblatt v. Baer,

383 U.S. 75 (1966) . . . . . . . . . . . . . . . . . . . passim

St. Amant v. Thompson,

390 U.S. 727 (1968) . . . . . . . . . . . . . . . . . . . 23, 24

Webster v. Reproductive Health Services,

492 U.S. 490 (1989) . . . . . . . . . . . . . . . . . . . . . . 20

vii

STATUTES AND RULES

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Fed. R. Civ. P. 50(a) . . . . . . . . . . . . . . . . . . . . . . . . . 1

Va. Code § 22.1-296.1 . . . . . . . . . . . . . . . . . . . . . . . . 9

OTHER AUTHORITIES

John Dean, Justice Scalia’s Thoughts, And A Few

Of My Own, on New York Times v. Sullivan,

Findlaw

(Dec.

2005);

https://supreme.findlaw.com/legal-commentary/

justice-scalias-thoughts-and-a-few-of-my-ownon-new-york-times-v-sullivan.html . . . . . . . . 3, 30

David Elder, Defamation, Public Officialdom and

the Rosenblatt v. Baer Criteria – A Proposal for

Revivification: Two Decades after New York

Times Co. v. Sullivan, 33 BUFF. L. REV. 579

(1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Richard A. Epstein, Was New York Times

v. Sullivan Wrong?, 53 U. CHI. L. REV. 783 (1986)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

David Finkelson, Note: The Status/Conduct

Continuum: Injecting Rhyme And Reason Into

Contemporary Public Official Defamation

Doctrine, 84 VA. L. REV. 871 (1998) . . . . . . . . . . 28

Elena Kagan, A Libel Story: Sullivan Then

and Now, 18 LAW & SOC. INQUIRY 197 (1993)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18, 19, 24

viii

Martin B. Louis, Summary Judgment and the

Actual Malice Controversy In Constitutional

Defamation Cases, 57 S. CAL. L. REV. 707 (1984)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4

Ken Paulson, Justice Scalia: Reflections on New

York Times v. Sullivan, FIRST AMENDMENT

CENTER (Oct. 11, 2011, 10:37

AM), http://www.firstamendmentcenter.

org/justice-scalia-reflections-on-new-york-timesv-sullivan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

NORMAN PEARLSTEIN, OFF THE RECORD: THE PRESS,

THE G OVERNMENT AND THE W AR OVER

ANONYMOUS SOURCES (2007) . . . . . . . . . . . . 24, 25

John Lewis Smith; Bruce L. Ottley, New York

Times v. Sullivan at 50; Despite Criticism, The

Actual Malice Standard Still Provides

“Breathing Space” For Communications In

The Public Interest, 64 DEPAUL LAW REV. 1

(2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 18

PETITION FOR A WRIT OF CERTIORARI

Petitioner Angela Engle Horne respectfully

petitions this Court for a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Fourth Circuit in this case.

OPINIONS BELOW

The Fourth Circuit’s decision is published and is

reported at 893 F.3d 201. It is reproduced in the

Appendix (“App”) at 1-22. The District Court’s final

order granting WTVR’s motion for judgment as a

matter of law under Fed.R.Civ.P. 50(a) is unreported

and is reproduced at App. at 23-24. The District

Court’s order granting in part and denying WTVR’s

motion for summary judgment as to Horne’s status as

a “public official” and the application of the “actual

malice” standard to the factual record also is

unreported and is reproduced at App. at 39-40.1 And

the District Court’s opinion supporting its summary

judgment order is unreported and is reproduced at

App. at 25-38.

JURISDICTION

The Fourth Circuit entered its opinion on June 18,

2018. On September 12, 2018, the Chief Justice

granted an extension to November 1, 2018 to file this

petition for writ of certiorari. Dkt. No. 18A260. This

In this same order, the District Court also denied WTVR’s motion

for summary judgment as to (i) whether the news story at issue

was actually capable of defamatory meaning (App. at 30-32) and

(ii) the application of the “fair report privilege” to the news story

(App. at 36-37). Neither of these issues, however, is before the

Court as part of this Petition.

Petition is timely filed within this extended deadline,

and this Court has jurisdiction under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

The First Amendment to the Constitution of the

United States provides, in pertinent part: “Congress

shall make no law . . . abridging the freedom of speech,

or of the press.”

INTRODUCTION

When Angela Engle Horne applied to be the

Director of Budget & Finance for the local school

system in Prince George County, Virginia, a rural

county of roughly 35,000 people2, she could never have

imagined that in doing so, she would forfeit a

substantial portion of her rights to protect her personal

reputation under Virginia’s common law of defamation.

Indeed, the unelected position was not high-profile in

nature (like that of a school superintendent or school

board member); it did not come with any media

responsibilities; it did not require Horne to award

contracts or bids, or even handle public funds; and it

entailed no policy-making responsibilities whatsoever.

Essentially, Horne was a glorified bookkeeper who was

paid with public funds.

But like so many thousands of unwitting

government employees before her, Horne was deemed

a “public official” under Rosenblatt v. Baer, 383 U.S. 75

(1966), when she brought a defamation lawsuit against

https://en.wikipedia.org/wiki/Prince_George_County,_Virginia

(visited on October 31, 2018)

WTVR, a local television station which aired a false

news story about her. This designation, then, forced

Horne to meet the demanding “actual malice” standard

from New York Times v. Sullivan, 376 U.S. 254 (1964),

in order to prevail on the merits of her claim -- that is,

she had to show that WTVR aired its defamatory news

story “with knowledge that it was false or with reckless

disregard of whether it was false or not.” Id. at 279-80.

When both the District Court and the Fourth Circuit

concluded she could not meet this standard, they

slammed the courthouse doors shut on Horne’s claim.

The law of defamation should not be so unforgiving.

This Court’s decisions in Sullivan and Rosenblatt,

whether intentionally or not, have created a “‘virtually

impermeable envelope of protection’ for the media in

suits brought by public persons.” David Elder,

Defamation, Public Officialdom and the Rosenblatt v.

Baer Criteria – A Proposal for Revivification: Two

Decades after New York Times Co. v. Sullivan, 33

BUFF. L. REV. 579, 580 (1984) (quoting Gulf Publishing

Co. v. Lee, 434 So.2d 687, 695 (Miss. 1983)). Such

protection has resulted in the vast majority of public

employees such as Horne failing – especially at the

summary judgment stage, before any trial ever takes

place -- in their efforts to vindicate their reputations

after they have been defamed.3 Even the District Court

See, e.g., John Dean, Justice Scalia’s Thoughts, And A Few Of My

Own, on New York Times v. Sullivan, Findlaw (Dec. 2, 2005);

https://supreme.findlaw.com/legal-commentary/justice-scaliasthoughts-and-a-few-of-my-own-on-new-york-times-v-sullivan.html

(visited on October 31, 2018) (“In practice, the ‘actual malice’

standard means that the plaintiff usually loses.”); Martin B. Louis,

Summary Judgment and the Actual Malice Controversy In

below lamented its decision when, after describing

WTVR’s journalistic practices in the case as “probably

not first class reporting,” it granted WTVR’s Rule 50

motion for judgment as a matter of law:

I am very sorry, Ms. Horne, but this is a tough

case in the way the law works in our country. It

is designed to protect the press so they than [sic]

can feel – that they can bring to us the truth no

matter how popular or unpopular it is. And you

have heard our current president talk about how

he doesn’t think the liable [sic] laws are fair to

people in his shoes, and you may join him in that

sentiment after this. But am I very sorry. I am

going to grant the motion.

Id. at 872-873.4

It is time for this Court to do a course correction on

Sullivan and its progeny. In a powerful concurring

opinion in Dun & Bradstreet, Inc. v. Greenmoss

Builders, Inc., Justice White noted that “the Court

struck an improvident balance in the New York Times

case 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.” 472 U.S. 749, 767

Constitutional Defamation Cases, 57 S. CAL. L. REV. 707, 711 n. 29

(1984) (noting that three-quarters of defendants’ summary

judgment motions on the actual malice issue are granted). See also

Herbert v. Oklahoma Christian Coalition, 992 P.2d 322, 328 & n.6

(Okla., 1999) (citing Louis, supra, and explaining that the “actual

malice” standard is a “formidable one”).

“JA” refers to the Joint Appendix filed in the Fourth Circuit.

(1985) (White, J., concurring). He is right. For reasons

that are deeply rooted in the civil rights movement that

was the obvious driving force behind the decision, this

Court in Sullivan tipped the balance of interests

heavily in favor of First Amendment protections at the

expense the individual’s right to protect their personal

reputations using the common law. However, “[n]ow

that the exigencies of the immediate case and of the

segregation crisis that brought it to the fore have

passed, the sensible constitutional conclusion is to

abandon the actual malice rule” from Sullivan. Richard

A. Epstein, Was New York Times v. Sullivan Wrong?,

53 U. CHI. L. REV. 783, 817-818 (1986).

This Petition asks this Court to restore the balance

of interests in favor of the pre-Sullivan common law

standards for defamation cases – regardless of whether

they are brought by public or private individuals – or at

the very least, to jettison the “actual malice” standard

for proving liability and actual damages in defamation

cases brought by public officials and public figures.

This Petition alternatively asks this Court re-examine

its “public official” jurisprudence under Rosenblatt v.

Baer, 383 U.S. 75 (1966), especially as it applies to

persons such as Horne who are in unelected, nonpolicy-making governmental positions. In short,

persons such as Horne should not have to suffer

reputational damage without recourse. The Petition

should be granted.

STATEMENT OF THE CASE

A. WTVR Defames Horne

On February 13, 2015, as the lead story for its 5:30

p.m. newscast, WTVR, the largest local television

station in central Virginia, aired a two-minute-21second story entitled “Source: Convicted felon worked

at school board office in Central Va.” Ostensibly, the

story was about how a local school system had hired a

felon in violation of Virginia law. However, the story

directly implied that the felon had lied about the prior

felony conviction on her job application, thereby

committing a separate Class 1 misdemeanor, and that

this lie was the reason she was able to get the job.

Thus, the story’s unmistakable message was that the

employee unlawfully hid her prior felony conviction in

order to get a public-school job and that she was fired

after her ruse was discovered. In other words, a onetime criminal committed additional criminal conduct in

order to get a public job in violation of Virginia law.

She was a double criminal.

This message was conveyed not only by the words of

the reporter who reported the story, but also by the

video images that were prepared and published by

WTVR. The following screen shot, for example,

highlights the “Felon Hired, Then Fired” theme that

permeated the story and indicates that such an

unlawful hiring could have been “prevent[ed]” except

for the mendacity of the felon.

Later images too perpetuated the misleading

message of the story. The following screen shot of a

sample job application, for example, highlights the

initial part of the hiring process and implies (again)

that the reason that the felon got hired was because

she falsely answered questions such as the ones shown.

Indeed, the “yes”/“no” format – especially for the

questions that say: “Have you ever been convicted of

any violation of law other than minor traffic violation?”

and “Have you ever been convicted of any offense

involving moral turpitude, the sexual molestation,

physical or sexual abuse, or rape of a child?” – clearly

implies that the felon at issue lied about one or both of

those questions.

Importantly, the felon’s actual job application is not

shown at any time by WTVR.

And perhaps most damning of all, towards the end

of the story, WTVR published a portion of the language

of Va. Code § 22.1-296.1, the code provision that

criminalizes making false statements about a person’s

prior felonies on a public-school job application. This

image zeros in on the “guilty of a misdemeanor”

language of the statute. The statutory text also appears

at the same time as the “Felon Hired, Then Fired”

language (again, used throughout the broadcast) at the

bottom of the screen. This image, then, directly

connects the felon at issue with the commission of a

Class 1 misdemeanor under the statute.

The entire narrative presented by WTVR’s news

story (with all of the images, the superimposed “Felon

Hired, Then Fired” language that continuously runs at

the bottom of the screen, and the accompanying test) is

false. Contrary to the story’s implications, Horne, the

felon referenced in the story, did not fail to disclose, or

lie about, her prior felony conviction when she applied

for her public-school job. To the contrary, it is

undisputed that Horne was fully forthcoming about her

prior criminal conviction when she filled out her

application, and that at all times the school system

knew about her felony and hired her anyway. In other

words, Horne made no misrepresentations and

committed no criminal conduct in connection with the

submission of her job application.

Despite its falsity, the story is still available on

WTVR’s website and can be found at

http://wtvr.com/2015/02/13/sources-convicted-felonworked-at-school-board-office-in-central-va/

B. The Seriously Flawed Editorial Process

That Preceded WTVR’s Defamatory

News Story

The “Felon Hired, Then Fired” story was the endresult of a completely flawed editorial process. The

story arose when a confidential source of the reporter

who reported the story – Wayne Covil – contacted him

and advised him that a felon had been hired and then

fired from the local school system in Prince George

County. JA801-802. Covil then set up an interview

with the school system’s superintendent, Dr. Bobby

Browder, to ask him about whether a felon had, in fact,

been hired by the school system and more specifically,

how the felon had gotten hired in the first place.

JA755, 801, 162.

At that interview, Dr. Browder refused to go into

the specifics of whether a felon had been hired or fired

from the School System. He did, however, describe

(i) the application process (including a question on the

application about prior criminal convictions); (ii) the

background check process that follows the initial

application; and (iii) how prior criminal convictions are

sometimes discovered after the initial hiring of an

employee (as part of a post-employment criminal

background check) despite the language of the initial

application. JA804-805.

From listening to Dr. Browder’s interview

statements, Covil believed that Dr. Browder’s indirect

information about the hiring process signaled that

Horne had, in fact, lied on her application by failing to

properly disclose her prior felony. JA804-05. Indeed, at

trial, he said that “in the interviewing Browder [sic] it

was our belief that the person [the applicant] had not

been truthful.” JA804 (emphasis added). Covil also

believed that Dr. Browder’s failure to expressly deny

his assertion that a felon had been hired and fired by

the School System was a tacit admission that a felon

had, in fact, been hired and fired by the School System.

JA808. Covil formed these beliefs, however, even

though he never asked Dr. Browder whether the felon

at issue had made any misrepresentations on her

application, JA766, and he did absolutely nothing to

determine whether Dr. Browder was telling the truth.

JA808-11; JA836.

Covil’s lack of any further investigation was all the

more remarkable given what occurred soon after he

completed his interview of Dr. Browder. Specifically,

almost immediately after Covil returned to the WTVR

office, he received an unsolicited anonymous e-mail

about the School System’s hiring of a felon. JA910-911.

The e-mail, sent at 11:48 a.m. from the username “ssss

smith” and the address “sssssmith869@yahoo.com,”

said:

I am a Prince George county resident. On

Monday, I anonymously sent letters to each of

the school board members informing them that

a convicted felon was hired by the school board

office. I know this because this person also lives

in Prince George and I know they are a felon. I

also know they work as a Director at the Prince

George School Board Office. My concern is, how

did this happen? Any state employee must have

a background check when hired so how was this

overlooked? Who allowed this to happen?

Shouldn’t someone take responsibility? Who at

the School Board gave the OK to hire a felon.

Virginia law states that a school division can not

hire a convicted felon. This also happens at the

same time the Superintendent gets a $10,000.00

raise. Is he really doing his job.

JA910-911.

At trial, Covil conceded that the e-mail was critical

of Dr. Browder and that it pointed fingers at both Dr.

Browder and the School Board for allowing a felon to

get hired by the School System. JA819; JA841. WTVR’s

News Director too testified at trial that the email’s

substance raised “red flags,” and that, as such, she emailed Covil and told him “we need to pursue” and try

to find out the name of the alleged felon. JA910.

Covil, however, never followed this directive. Indeed,

after he received the e-mail, Covil (i) never made a

second call to Dr. Browder about the e-mail; (ii) never

FOIA’d Horne’s employment application; and (iii) never

called any members of the School System’s school board

to inquire about the e-mail or the information it

contained. JA818-20; JA778-79. He failed to do this

even though the telephone numbers for the individual

Prince George County School Board members were

publicly posted on the School System’s website. JA781.

C. And All This Just To Falsely Accuse An

Unelected Public Employee Of Lying On

Her Job Application

What all of these machinations ultimately meant

was that WTVR aired a false news story about an

unelected public employee of a local school system.

Horne was not the School Superintendent, an Assistant

Superintendent, a School Board member, or even the

head of any of the schools in the system. Instead, she

was a “numbers” person who basically kept the books.

In her position, Horne (i) had no access to the public

purse; (ii) did not handle public funds (including not

collecting or disbursing such funds); (iii) had no power

to make contracts for the school system, or to bind the

school system for any contracts or bids; (iv) did not pay

bills or invoices or approve purchases for the school

system; (v) did not decide which line items stayed or

went on the budget; (vi) did not decide whether to

increase or decrease school salaries; (vii) did not have

any media duties; and (vii) had no policymaking

responsibilities at all regarding the budget or the

finances of the school system. JA365-68; JA385-3JA385-5; JA837.

And, of course, WTVR never even focused on such

duties as part of its reporting. Its news story was not

about whether the school system’s Budget & Finance

Director had mismanaged funds or created a public

outcry by proposed a budget that eliminated teachers

or closed down schools. Rather, it was about the job

application requirements that applied equally to each

and every school system employee – from the highprofile Superintendent at the top to the night

watchman or school custodian at the so-called bottom.

Nothing about the fact that Virginia law prohibits

public school systems from employing felons was in any

way unique to Horne’s position or job duties.

D. The Underlying Litigation

After its false broadcast about her, Horne sued

WTVR for defamation. She was unable to prevail in

her suit, however, under this Court’s Sullivan

jurisprudence. First, she was declared to be a “public

official” under Rosenblatt v. Baer. And second, she was

held to have failed to provide sufficient evidence to

meet the “actual malice” standard of New York Times

v. Sullivan. The District Court made these holdings,

even though it held that WTVR’s broadcast was

reasonably capable of defamatory meaning because it

was “reasonably capable of conveying that the School

System fired [her] because she lied about her conviction

when filling out her application.” App. at 32.

On appeal, the Fourth Circuit affirmed these two

rulings. Its published opinion, however, applied an

expansive notion of “public officials” under Rosenblatt.

Relying on the notion of “apparent substantial

responsibility” and resting on her “title and job

description,” the Court of Appeals held that the mere

appearance of responsibility was enough to make

Horne a “public official” and therefore subject to the

“actual malice” standard. App. at 11-13.

REASONS FOR GRANTING THE WRIT

New York Times v. Sullivan Should Be

Overruled

A. Prior to Sullivan, State Defamation Law

Operated Unremarkably

Prior to Sullivan, defamation claims – even those

brought by public officials or public figures -- were

unremarkably governed by state common law. Epstein,

supra, at 789 (“Before the case [Sullivan] there was a

quiet satisfaction with the basic common law rules of

defamation.”). Within this landscape, “only ten states

applied an actual malice test to conditional or qualified

privilege cases” – that is, “those in which the privilege

may be over-ridden or foreclosed.” John Lewis Smith;

Bruce L. Ottley, New York Times v. Sullivan at 50;

Despite Criticism, The Actual Malice Standard Still

Provides “Breathing Space” For Communications In

The Public Interest, 64 DEPAUL LAW REV. 1, 22 (2014).5

And even then, this test was “usually restricted” to

“defamation cases involving candidates for political

office or public officials,” rather than simply public

employees. Id. at 24. Finally, the pre-Sullivan “actual

malice” test involved the lower threshold standard for

“common law” malice rather than the subjective

inquiry involved in Sullivan’s “actual malice” test. Id.

See Epstein, supra, at 795 (“The [actual malice] proposition

stands in very sharp opposition to the majority common law

proposition on the same question.”).

at 26-27. Simply stated, prior to Sullivan, state

common law in the United States imposed nothing

remotely comparable to this Court’s “actual malice” test

from Sullivan as a barrier or impediment to a public

employee’s defamation lawsuit.

B. Sullivan Arose From Extraordinary And

Unique Factual, Social, and Societal

Circumstances

All of this changed, of course, with Sullivan. The

extraordinary factual, social, and societal context in

which the case arose, however, cannot be divorced from

either its outcome or its holding. Sullivan was no

ordinary libel case. It sprang from the New York

Times’ decision in 1960 to run a full-page

advertisement, titled “Heed Their Rising Voices,”

sponsored by the Committee to Defend Martin Luther

King and the Struggle for Freedom in the South.

Sullivan, 376 U.S. at 256-257. The ad detailed alleged

efforts by “Southern violators of the Constitution,”

including police officers, to subvert the civil rights

movement. Id. L.B. Sullivan, an elected commissioner

of Montgomery, Alabama, in charge of supervising the

city’s police department, sued the New York Times for

libel, and an all-white Alabama jury awarded him

damages of $500,000. Id. See also Elena Kagan, A

Libel Story: Sullivan Then and Now, 18 LAW & SOC.

INQUIRY 197, 200 (1993) (describing how the case was

tried to an all-white jury).

The summary of facts in this Court’s opinion in

Sullivan, however, does not do justice to the racially

toxic environment in which the Times tried to defend

itself in 1960's Alabama. The courtroom where the case

was tried was segregated, not a single Montgomery

lawyer would represent the Times in the case, and local

newspapers vilified the Times’ advertisement for its

“crude slanders against Montgomery.” Kagan, supra,

at 200.

Not only that, but the judge who presided over the

case had previously made his feelings about

segregation clear in a companion case to Sullivan. He

stated:

Much has been said at the Bar, and out of the

hearing of the trial jury, as to the supposed

requirements of the XIV Amendment directing

the Trial Judge of the Court of a sovereign state

how he will conduct a trial before a jury in the

courts of Alabama.

I would like to say for those here present, and

for those who may come here to litigate in the

future, that the XIV Amendment has no

standing whatsoever in this Court, it is a pariah

and an outcast, if it be construed to hold and

direct the Presiding Judge of this Court as to the

manner in which proceedings in the Court . . .

shall be conducted.

...

We will now continue with the trial of this case

under the laws of the State of Alabama, and not

under the XIV Amendment, and in the belief

and knowledge that the white man’s justice . . .

will give the parties at the Bar of this Court,

regardless of race or color, equal justice under

the law.

Lewis & Ottley, supra, at 12-13 (citations omitted).

And it must also be remembered that “the Sullivan

trial was merely the first salvo in a concerted campaign

against the northern establishment by southern public

officials and opinion makers – a campaign which

intended to curtail media coverage of the civil rights

struggle and threatened to succeed in this defined.”

Kagan, supra, at 200. By the time this Court decided

Sullivan, “southern officials had brought nearly $300

million in libel actions against the press.” Id. As one

of Montgomery’s local newspapers put it at the time:

“State Finds Formidable Legal Club to Swing at Out-ofState Press.” Id.

C. This Court’s Decision In Sullivan Went

Far Beyond That Which Was Necessary

To Address The Infirmities Of The

Alabama Jury’s Verdict

Within this highly charged context, this Court went

far beyond the discrete infirmities in the Alabama

jury’s verdict, of which there were many, when it

issued its decision. Instead, in expansive terms, it held

for the very first time that the First Amendment

imposes Constitutional requirements on the common

law of defamation such that it requires “a federal rule

that prohibits a public official from recovering damages

for a defamatory falsehood relating to his official

conduct unless he proves that the statement was made

with ‘actual malice’—that is, with knowledge that it

was false or with reckless disregard of whether it was

false or not.” Sullivan, 376 U.S. at 279-80. It is no

understatement to say that in Sullivan, this Court

“revolutionized the law of defamation in . . . every . . .

jurisdiction in the country.” Miami Herald Pub. Co. v.

Ane, 423 So.2d 376, 382-383 (Fla. App. 1982).

This expansive view of the First Amendment was

unnecessary. As one commentator has noted: “My sense

is that tried anywhere outside the deep South, the

plaintiff [in Sullivan] would have been sent home

packing. The common law was sound; its application

was not.” Epstein, supra, at 790. It was also without a

solid Constitutional foundation. As Justice Blackmun

candidly stated in Webster v. Reproductive Health

Services, “[t]he Constitution makes no mention, for

example, of the First Amendment’s ‘actual malice’

standard for proving certain libels.” 492 U.S. 490, 548

(1989) (Blackmun, J., concurring in part and dissenting

in part). Rather, it is a “judge-made method[] for

evaluating and measuring the strength and scope of

constitutional rights.” Id.

D. Sullivan Struck An Improvident Balance

Between The Public’s Interest In Being

Fully Informed About Public Officials

And The Competing Interest Of

Protecting One’s Reputation

With all of this said, Sullivan went too far in

favoring the public’s First Amendment interests to the

detriment of an individual’s ability to vindicate his

personal reputation. As has been stated: “[i]t is one

thing to condemn the common law of defamation as it

was applied in a single case, and it is quite a different

thing to condemn the basic set of common law

principles in their entirety.” Epstein, supra at 817.

Justice White said it best in his concurring opinion

in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,

472 U.S. 749 (1985). In powerful and compelling

language, he said he had “become convinced that the

Court struck an improvident balance in the New

York Times case 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.” 472 U.S. at

767 (White, J., concurring) (emphasis added). He

continued:

In a country like ours, where the people purport

to be able to govern themselves through their

elected representatives, adequate information

about their government is of transcendent

importance. That flow of intelligence deserves

full First Amendment protection. Criticism and

assessment of the performance of public officials

and of government in general are not subject to

penalties imposed by law. But these First

Amendment values are not at all served by

circulating false statements of fact about public

officials. On the contrary, erroneous information

frustrates these values. They are even more

disserved when the statements falsely impugn

the honesty of those men and women and hence

lessen the confidence in government. As the

Court said in Gertz: “[T]here is no constitutional

value in false statements of fact. Neither the

intentional lie nor the careless error materially

advances society’s interest in ‘uninhibited,

robust, and wide-open’ debate on public issues.”

418 U.S., at 340, 94 S.Ct., at 3007. Yet in New

York Times cases, the public official’s complaint

will be dismissed unless he alleges and makes

out a jury case of a knowing or reckless

falsehood. Absent such proof, there will be no

jury verdict or judgment of any kind in his favor,

even if the challenged publication is admittedly

false. The lie will stand, and the public continue

to be misinformed about public matters. This

will recurringly happen because the putative

plaintiff’s burden is so exceedingly difficult to

satisfy and can be discharged only by expensive

litigation. Even if the plaintiff sues, he

frequently loses on summary judgment or never

gets to the jury because of insufficient proof of

malice. If he wins before the jury, verdicts are

often overturned by appellate courts for failure

to prove malice. Furthermore, when the plaintiff

loses, the jury will likely return a general verdict

and there will be no judgment that the

publication was false, even though it was

without foundation in reality. The public is left

to conclude that the challenged statement was

true after all. Their only chance of being

accurately informed is measured by the public

official’s ability himself to counter the lie,

unaided by the courts. That is a decidedly weak

reed to depend on for the vindication of First

Amendment.

Id. at 767-769.

Other members of the Court foreshadowed Justice

White’s sentiments many years before. In Rosenblatt,

for example, Justice Stewart emphasized that the First

Amendment is not the “only guidepost in the area of

state defamation laws.” 383 U.S. at 92 (Stewart, J.,

concurring). Instead, he explained that:

‘important social values . . . underlie the law of

defamation. Society has a pervasive and strong

interest in preventing and redressing attacks

upon reputation.’

The right of a man to the protection of his own

reputation from unjustified invasion and

wrongful hurt reflects no more than our basic

concept of the essential dignity and worth of

every human being a concept at the root of any

decent system of ordered liberty. The protection

of private personality, like the protection of life

itself is left primarily to the individual States .

. . . But this does not mean that the right is

entitled to any less recognition by this Court

as a basic of our constitutional system.

Id. (emphasis added).

Other members have emphasized that the First

Amendment is not an absolute shield that trumps an

individual’s reputational rights. As Chief Justice

Warren explained in his concurring opinion in Curtis

Publishing Co. v. Butts: “[f]reedom of the press under

the First Amendment does not include absolute license

to destroy lives or careers.” 388 U.S. 130, 170 (1967)

(Warren, C.J., concurring). And as Justice Fortas

made clear, albeit in dissent, just a year before in St.

Amant v. Thompson:

The First Amendment is not so fragile that it

requires us to immunize this kind of reckless,

destructive invasion of the life, even of public

officials, heedless of their interests and

sensitivities. The First Amendment is not a

shelter for the character assassinator, whether

his action is heedless and reckless or deliberate.

The First Amendment does not require that we

license shotgun attacks on public officials in

virtually unlimited open season. The occupation

of public officeholder does not forfeit one’s

membership in the human race. The public

official should be subject to severe scrutiny and

to free and open criticism. But if he is

needlessly, heedlessly, falsely accused of crime,

he should have a remedy in law. New York

Times does not preclude this minimal standard

of civilized living.

390 U.S. 727, 734 (1968) (Fortas, J., dissenting)

Even a current member of this Court has recognized

the “obvious dark side” of Sullivan’s “actual malice”

standard – that is, “that it allows grievous reputational

damage to occur without monetary compensation or

any other effective remedy.” Kagan, supra at 205

(1993). This dark side has likely led to a “general

tendency to sensationalize political discourse” and to

the “‘tabloidization’ of the mainstream press.” Id. at

207. It is also encouraging an arrogance of the press,

to wit:

[t]oday’s press engages in far less examination of

journalistic standards and their relation to legal

rules. Rather than asking whether some kinds

of accountability may in the long term benefit

journalism, the press reflexively asserts

constitutional insultation from any and all

norms of conduct.”

Id. at 207.

Finally, in the years preceding his passing, Justice

Scalia repeatedly expressed his open support for

overturning Sullivan, not just because of its

reputational costs but also as lacking proper

Constitutional foundation. See, e.g., NORMAN

PEARLSTEIN, OFF THE RECORD: THE PRESS, THE

GOVERNMENT AND THE WAR OVER ANONYMOUS SOURCES

77 (2007). As he explained in particularly blunt

language,

you can libel public figures without liability so

long as you are relying on some statement from

a reliable source, whether it’s true or not.

Now the old libel law used to be (that) you’re

responsible, you say something false that harms

somebody’s reputation, we don’t care if it was

told to you by nine bishops, you are liable. . . .

New York Times v. Sullivan just cast [the old

libel law] aside because the Court thought in

modern society, it’d be a good idea if the press

could say a lot of stuff about public figures

without having to worry.”

Ken Paulson, Justice Scalia: Reflections on New York

Times v. Sullivan, FIRST AMENDMENT CENTER (Oct. 11,

2011, 10:37 AM), http://www.firstamendmentcenter.

org/justice-scalia-reflections-on-new-york-times-vsullivan.

The point of these thoughtful, compelling, and

cogent statements is that Sullivan strikes the wrong

balance between the First Amendment and the

common law of defamation.

Professor Epstein

succinctly summarized the negative societal impact of

this imbalance as follows:

The greatest cost of the present system is that it

makes no provision for determining truth.

When a defendant wins a case on actual malice,

there is no correction of past errors, and no

sense of vindication for the plaintiff who can

complain bitterly that he lost on a technicality

that was of no concern to him. Indeed, it is not

surprising that the plaintiff’s level of frustration

is so great in defamation cases precisely because

the frequency with which the defendant avoids

the only issue that matters to the plaintiff –

falsehood, which could allow rehabilitation of the

plaintiff’s reputation.

Epstein, supra at 813-814. He then continued:

The public, too, is a loser because the present

system places systematic roadblocks against the

correction of error. If it is important to know

that Jones has been a faithless public official, it

is equally important for the public to know that

Jones has been a diligent public official falsely

accused by the press. The centrality of the truth

is of critical importance to any overall

assessment of the system. Even if a system that

turned on truth were more expensive to operate

than one which rested upon actual malice, which

is far from obvious, it would still provide

information of far greater social value. More

cases might be brought, but they would serve an

important public purpose.

Id. at 814.

Professor Epstein then concluded with exactly what

Horne, as the victim of the “dark side” of Sullivan,

submits is the proper course of action for this Court to

take:

On balance, the common law rules of defamation

(sensibly controlled on the question of damages)

represent a better reconciliation of the dual

claims of freedom of speech and the protection of

individual reputation than does the New York

Times rule that has replaced it.

Id. at 817-818.

II.

Even If This Court Chooses Not To

Overrule New York Times v. Sullivan In Its

Entirety, It Should Revise Its “Actual

Malice” Rule Of Law

Separately, even if this Court elects not to overrule

Sullivan in its entirety, it should revise its “actual

malice” rule of law so that it only applies to awards of

punitive or presumed damages and not to the issue of

liability or the award of actual damages. While this is

not Horne’s preferred course of action, it would

nevertheless promote the reputational interests and

values discussed in the section above and would, at the

least, recalibrate the balance between the First

Amendment interests and the interests of public

officials and public figures in trying to vindicate their

rights to their reputation through state common law.

III.

Alternatively, This Court Should Revise Its

“Public Official” Jurisprudence So That

Unelected Public Officials Such As Horne

Are Not Subjected To Sullivan’s “Actual

Malice” Standard

Additionally, and alternatively, this Court should

examine and revise its “public official” jurisprudence so

that unelected public officials such as Horne are not

subjected the Sullivan’s exacting “actual malice”

standard. Indeed, to say that this jurisprudence needs

to be clarified is an understatement. As has been

explained, “[t]he public official requirement has been

blurred beyond recognition by [this] Court’s failure to

promulgate a workable standard for differentiating

between the President from the White House kitchen

worker, and by the lower courts’ failure to resist the

temptation to hold lower-level government employees

like that White House kitchen worker to the exacting

actual malice standard.” David Finkelson, Note: The

Status/Conduct Continuum: Injecting Rhyme And

Reason Into Contemporary Public Official Defamation

Doctrine, 84 VA. L. REV. 871, 872 (1998).

Here, the Fourth Circuit essentially created a per se

rule that says, based solely on their job titles and job

descriptions, all public-school budget & finance

directors in Virginia are “public officials” under

Rosenblatt. App. at 10-14. In doing so, the Court of

Appeals in one fell swoop stripped roughly 1336 persons

of the ability to bring ordinary common law defamation

lawsuits to protect their personal reputations. Instead,

such persons – regardless of the actual duties they

engage in on a day-to-day basis and regardless of their

interactions with the local public or the media – must

now surmount the “actual malice” hurdle under

Sullivan.

The Fourth Circuit’s “public official” ruling also

almost certainly has larger and broader implications

for other public employees. Specifically, by resting its

determination so heavily on the appearance of

substantial responsibility and control over public

affairs, as opposed to the actual responsibility and

control over public affairs, the Court of Appeals all but

Virginia has 95 counties and 38 independent cities (which are

considered county equivalents), each of which presumably has a

budget director for its public-school system.

extinguished the two-part inquiry from Rosenblatt. It

is now simply collapsed into one superficial inquiry of

whether a public employee merely looks like they have

responsibility and control -- rather than whether they

actually do. This test casts far too broad a net.

And finally, the Fourth Circuit’s surface-based test

is at odds with the most fundamental purpose behind

designating persons as “public officials” – that is, that

public officials, by virtue of the status and importance

of their public position, can defend themselves against

defamation with their own public counter-statements.

As this Court made clear in Gertz v. Robert Welch, Inc.:

Public officials . . . usually enjoy significantly

greater access to the channels of effective

communication and hence have a more realistic

opportunity to counteract false statements than

private individuals normally enjoy. Private

individuals are therefore more vulnerable to

injury, and the state interest in protecting them

is correspondingly greater.

418 U.S. 323, 344 (1974). The Fourth Circuit’s test,

however, leaves no room to inquire whether a public

employee – even one who holds a lofty title or has a

gilded job description – can protect their reputations by

using communication channels to publicly counteract

false statements.

In any event, this issue warrants review by this

Court. As one court rightly observed, this “Court has

consistently sidestepped opportunities to define the

term [of public official].” Lacey v. Judge, 2012 Ohio

Misc. LEXIS 6290 at *5-6 (Franklin Cnty. Ct. of

Common Pleas Nov. 2, 2012). Such sidestepping should

stop. The time is now to address the public official issue

and to address how such persons, especially unelected

public employees who have no means of self-help such

as Horne, can protect their reputations in today’s

rough-and-tumble world.

CONCLUSION

In the end, no better or more succinct words explain

why certiorari should be granted in this case than the

following:

The constitutional law of defamation is a

disaster. It is nearly incomprehensible. It is

unfair. It is unjust. And it is long overdue for a

correction.

Dean, supra, Justice Scalia’s Thoughts, And A Few Of

My Own, on New York Times v. Sullivan, Findlaw (Dec.

2, 2005). Such correction should begin now. The

petition should be granted.

Respectfully submitted,