Petition for Writ of Certiorari — Coral Ridge Ministries Media, Inc., dba D. James Kennedy Ministries, Petitioner v. Southern Poverty Law Center

No. 21-______

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------CORAL RIDGE MINISTRIES MEDIA, INC., d/b/a

D. JAMES KENNEDY MINISTRIES,

Petitioner,

v.

SOUTHERN POVERTY LAW CENTER,

Respondent.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

---------------------------------♦--------------------------------PETITION FOR A WRIT OF CERTIORARI

---------------------------------♦--------------------------------JEREMY D. BAILIE

WEBER, CRABB & WEIN, P.A.

5453 Central Avenue

St. Petersburg, Florida 33710

(727) 828-9919

Jeremy.Bailie@webercrabb.com

DAVID C. GIBBS, III

Counsel of Record

THE NATIONAL CENTER

FOR LIFE & LIBERTY, INC.

2648 F. M. 407, Suite 240

Bartonville, Texas 76226

(727) 362-3700

dgibbs@gibbsfirm.com

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

In New York Times v. Sullivan, this Court upended

common law defamation jurisprudence creating a

more-often-than-not insurmountable bar for a public

figure to plead and prove a defamation claim—the

“actual-malice” standard. The term “public figure” was

later expanded to explicitly include non-elected public

officials in Curtis Publishing Co. v. Butts. Since the “actual malice” standard, particularly as applied to nonelected public officials, conflicts with the correct, original understanding of the First Amendment, this Court

should untangle defamation claims from the clutches

of the First Amendment and ensure a public figure’s

right to assert a common law defamation claim for redress for reputational harm remains protected.

1.

Whether this Court should reconsider Sullivan’s

“actual-malice” standard or, at a minimum, cabin

Sullivan’s “actual malice” standard to speech concerning public officials and be eliminated altogether for private public figures.

ii

PARTIES TO THE PROCEEDING

Petitioner is Coral Ridge Ministries Media, Inc.,

d/b/a D. James Kennedy Ministries. Petitioner was

plaintiff in the district court and plaintiff-appellant in

the court of appeals. Petitioner has no parent corporation and no publicly held company owns 10% or more

of Petitioner’s stock.

Respondent is Southern Poverty Law Center

(“SPLC”). Respondent was defendant in the district

court and defendant-appellee in the court of appeals.

iii

RELATED PROCEEDINGS

This case arises from the following lower court

proceedings:

•

Coral Ridge Ministries Media, Inc., d/b/a D. James

Kennedy Ministries v. Amazon.com, Inc., et al.,

No. 19-14125 (11th Cir.) (opinion affirming judgment of district court, issued July 28, 2021) (reported at 6 F.4th 1247);

•

Coral Ridge Ministries Media, Inc., d/b/a D. James

Kennedy Ministries v. Amazon.com, Inc., et al.,

No. 2:17-cv-566-MHT (N.D. Ala.) (order adopting

report and recommendation and granting the motions to dismiss, filed September 19, 2019 (reported at 406 F.Supp.3d 1258); and

•

Coral Ridge Ministries Media, Inc., d/b/a D. James

Kennedy Ministries v. Amazon.com, Inc., et al.,

No. 2:17-cv-566-MHT (N.D. Ala.) (report and recommendation recommending the district court

grant the motions to dismiss, filed February 21,

2018) (unreported, available at 2018 WL 4697073).

There are no other proceedings in state or federal

trial or appellate courts, or in this Court, directly related to this case within the meaning of this Court’s

Rule 14.1(b)(iii).

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

i

PARTIES TO THE PROCEEDING ......................

ii

RELATED PROCEEDINGS ................................

iii

TABLE OF CONTENTS ......................................

iv

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

vi

PETITION FOR REVIEW ...................................

1

OPINIONS BELOW.............................................

1

JURISDICTION ...................................................

1

CONSTITUTIONAL PROVISIONS INVOLVED ....

2

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

2

A.

Factual Background ..................................

3

B.

Procedural History ....................................

5

REASONS FOR GRANTING THE PETITION .....

7

I.

SULLIVAN HAS BEEN RIGHTLY CRITICIZED FOR ITS UNINTENDED CONSEQUENCES

AND

ITS

SHAKY

CONSTITUTIONAL UNDERPINNINGS .... 10

A. Sullivan’s Disastrous Practical Effects

Should be Enough for This Court to

Reconsider its Decision ....................... 11

B. Sullivan’s Actual-Malice Test Finds

No Support in Either the Text or Historical Understanding of the Constitution ....................................................... 21

v

TABLE OF CONTENTS—Continued

Page

C. The Ministry’s Experience in the

Courts Below is the Perfect Example

of Sullivan’s Dark Side ....................... 25

II. THIS CASE IS AN EXCELLENT VEHICLE

FOR RECONSIDERING SULLIVAN .......... 26

CONCLUSION..................................................... 28

APPENDIX

United States Court of Appeals for the Eleventh

Circuit, Opinion, Filed Jul. 28, 2021 ............... App. 1

United States District Court for the Middle

District of Alabama, Opinion, Filed Sep. 19,

2019 ................................................................ App. 16

United States District Court for the Middle

District of Alabama, Judgment, Filed Sep. 19,

2019 .............................................................. App. 110

United States District Court for the Middle

District of Alabama, Report and Recommendation, Filed Feb. 21, 2018 ........................... App. 112

vi

TABLE OF AUTHORITIES

Page

CASES

Beauharnais v. People of State of Ill., 343 U.S.

250, 72 S. Ct. 725, 96 L. Ed. 919 (1952) ..................23

Berisha v. Lawson, 141 S. Ct. 2424 (2021) ... 3, 20, 22, 27

Blevins v. W.F. Barnes Corp., 768 So. 2d 386 (Ala.

Civ. App. 1999) .........................................................25

Chaplinsky v. State of New Hampshire, 315 U.S.

568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942) ................23

Coughlin v. Westinghouse Broad. & Cable, Inc.,

476 U.S. 1187, 106 S. Ct. 2927, 91 L. Ed. 2d

554 (1986) ................................................................13

Coughlin v. Westinghouse Broad. & Cable, Inc.,

780 F.2d 340 (3d Cir. 1985) .....................................14

Curtis Pub. Co. v. Butts, 388 U.S. 130, 87 S. Ct.

1975, 18 L. Ed. 2d 1094 (1967) ...............................12

Dun & Bradstreet, Inc. v. Greenmoss Builders,

Inc., 472 U.S. 749, 105 S. Ct. 2939, 86 L. Ed. 2d

593 (1985) .......................................................... 12, 13

Fed. Election Comm’n v. Wisconsin Right To

Life, Inc., 551 U.S. 449, 127 S. Ct. 2652, 168

L. Ed. 2d 329 (2007) ..................................................8

Gaither v. Advertiser Co., 102 Ala. 458 (Ala.

1893) ........................................................................25

Garrison v. State of La., 379 U.S. 64, 85 S. Ct.

209, 13 L. Ed. 2d 125 (1964) ...................................12

vii

TABLE OF AUTHORITIES—Continued

Page

Janus v. Am. Fed’n of State, Cty., & Mun. Emps.,

Council 31, 138 S. Ct. 2448, 201 L. Ed. 2d 924

(2018) .........................................................................8

McKee v. Cosby, 139 S. Ct. 675, 203 L. Ed. 2d 247

(2019) ............................................................. 3, 19, 27

Near v. State of Minnesota ex rel. Olson, 283 U.S.

697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931) ................16

New York Times Co. v. Sullivan, 376 U.S. 254, 84

S. Ct. 710, 11 L. Ed. 2d 686 (1964) ................. passim

Ripps v. Herrington, 241 Ala. 209 (Ala. 1941)............25

Roth v. United States, 354 U.S. 476, 77 S. Ct.

1304, 1 L. Ed. 2d 1498 (1957) .................................23

Shelby Cty., Ala. v. Holder, 570 U.S. 529, 133

S. Ct. 2612, 186 L. Ed. 2d 651 (2013) .......................9

St. Amant v. Thompson, 390 U.S. 727, 88 S. Ct.

1323, 20 L. Ed. 2d 262 (1968) .................................12

Tah v. Global Witness Publishing, Inc., 991 F.3d

231 (D.C. Cir. 2021) ........................................... 20, 27

Time, Inc. v. Hill, 385 U.S. 374, 87 S. Ct. 534, 17

L. Ed. 2d 456 (1967) ................................................12

Whitney v. California, 274 U.S. 357, 47 S. Ct.

641, 71 L. Ed. 1095 (1927) ......................................21

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I ........................................... passim

viii

TABLE OF AUTHORITIES—Continued

Page

STATUTES

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

28 U.S.C. § 1367 ............................................................7

OTHER AUTHORITIES

Attorney General Sessions, Attorney General

Jeff Sessions Delivers Remarks at the Alliance

Defending Freedom’s Summit on Religious

Liberty (Aug. 8, 2018) (transcript available at

https://www.justice.gov/opa/speech/attorneygeneral-jeff-sessions-delivers-remarks-alliancedefending-freedoms-summit) (last visited November 22, 2021) .......................................................5

Charlie Rose, Antonin Scalia Interview (Nov. 27,

2012), https://charlierose.com/videos/17653 (last

visited October 29, 2021) ........................................19

Kagan, Elena A., A Libel Story: Sullivan Then

and Now (reviewing Anthony Lewis, Make No

Law: The Sullivan Case and the First Amendment (1991)), 18 Law and Social Inquiry 197

(1993) ............................................... 10, 11, 15, 17, 18

Langworth, Richard M., Galloping Lies, Bodyguards of Lies, and Lies for the Sake of Your

Country, September 30, 2020, available at

(https://richardlangworth.com/galloping-lies)

(last accessed November 19, 2021) ...........................9

ix

TABLE OF AUTHORITIES—Continued

Page

Lewis & Ottley, John Bruce Lewis & 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 L.

Rev. 1 (2014) ............................................................19

Richard A. Epstein, Was New York Times v. Sullivan Wrong?, 53 U. Chi. L. Rev. 782 (1986)...... 14, 15

Ronald Reagan Presidential Library and Museum, John G. Roberts Collection, Box 66,

Libel Laws (available at https://www.reagan

library.gov/public/digitallibrary/smof/counsel/

roberts/box-066/40_485_6909456_066_004_

2017.pdf ) (last visited November 21, 2021) .........14

1

PETITION FOR REVIEW

Petitioner, Coral Ridge Ministries Media, Inc.,

d/b/a D. James Kennedy Ministries (the “Ministry”),

respectfully petitions for a writ of certiorari to review

the judgment of the Eleventh Circuit in this case.

---------------------------------♦---------------------------------

OPINIONS BELOW

The judgment of the court of appeals is reported at

6 F.4th 1247. (App. at 1). The opinion of the district

court is reported at 406 F.Supp.3d 1258. (App. at 16).

The report and recommendation of the magistrate

judge is unreported but is available at 2018 WL

4697073. (App. at 112).

---------------------------------♦---------------------------------

JURISDICTION

The Eleventh Circuit entered judgment on July

28, 2021. (App. at 1). This Court previously extended

the deadline for Petitioner to file this Petition for Writ

of Certiorari. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

---------------------------------♦---------------------------------

2

CONSTITUTIONAL PROVISIONS INVOLVED

The First Amendment to the Constitution of the

United States provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or of the press, or the right of the people peaceably to assemble, and to petition the

Government for a redress of grievances.

---------------------------------♦---------------------------------

STATEMENT OF THE CASE

This petition presents an important question this

Court has struggled with for the better part of fifty

years: Is it time to reconsider Sullivan and the actual

malice standard it imposes on every public figure and,

sometimes, non-public figures that happen to be thrust

into the limelight? The answer to that question is resoundingly “yes.” Constrained by this Court’s opinion

in Sullivan and its progeny, the Magistrate Judge, District Court, and Eleventh Circuit below absolved Respondent of any liability for its intentional impugning

the Ministry’s name and reputation in the public square.

This Court’s “actual-malice” standard, invented for

a particular time and a particular purpose, has become

obsolete and does not serve any of the interests it was

designed to protect by limiting private individuals

from bringing defamation claims against other private

companies or individuals. Sullivan’s near-absoluteprohibition on public officials bringing libel claims

3

cannot trace its roots to the Founding, and its extension to every public figure is fundamentally untethered

from the original understanding of the First Amendment. Today, Sullivan no longer acts as a bulwark to

protect civil rights. Instead of the shield it was designed to be, it is now a sword used to bludgeon public

figures with impunity while hiding behind this Court’s

mistaken view of the First Amendment.

Since 1964, nearly a dozen members of this Court

have questioned various aspect of Sullivan and its viability. Most recently, Justice Thomas pointedly criticized its “policy-driven decision[ ] masquerading as

constitutional law.” McKee v. Cosby, 139 S. Ct. 675, 203

L. Ed. 2d 247 (2019) (Thomas, J., dissenting). And Justice Gorsuch “add[ed] [his] voice” to the now-choir of

voices calling on the Court to “return[ ] its attention . . .

to a field so vital to the ‘safe deposit’ of our liberties.”

Berisha v. Lawson, 141 S. Ct. 2424, 2430 (2021) (Gorsuch, J., dissenting). This case presents this Court that

opportunity.

A. Factual Background

This case was resolved by the District Court and

the Eleventh Circuit at the motion to dismiss stage

limiting the facts of this case to the Ministry’s wellpleaded factual allegations. Relevant to this Court’s

consideration, the facts are straightforward.

The Ministry is a not-for-profit Christian ministry that primarily exists to broadcast Truths That

Transform, a television program that airs the

4

previously-recorded messages of its (now-deceased)

founder, Dr. D. James Kennedy. (App. at 19–20). In fact,

since much of the Ministry’s work consists of rebroadcasting programs recorded before Dr. Kennedy’s death,

the message cannot have changed since his death.

These messages are faith based and are based in Dr.

Kennedy’s beliefs and the Bible’s teachings. (App. at

20).

SPLC declared to the world the Ministry is to be

considered a “hate group” because of these religious

teachings by Dr. Kennedy. (App. at 21). SPLC made

this determination and published its “hate group” designation of the Ministry on its “Hate Map.”1 (App. at

20–21). In addition to its website, SPLC also widely

distributed this “hate group” designation to third parties in fundraising materials, direct mail solicitations,

publications, and training programs. (App. at 20–21).

SPLC intended for its readers to rely on this information as a statement of fact. And SPLC publicly

stated its aim is to “completely destroy” the groups it

has listed on its Hate Map. See n.1, supra.

For some of the groups listed, there is good reason

to wish their end. To put this designation in context,

SPLC associated the Ministry with real hate groups

like the Ku Klux Klan, white nationalists, and the

neo-Nazi movement—groups that have been associated with and have well-documented histories of horrific violence and true acts of hate. There are no facts

1

SPLC’s “Hate Map” is located on its website. https://www

.splcenter.org/hate-map. (App. at 44).

5

(nor does SPLC include any on its “hate map”) that could

ever bring the Ministry within the “hate group” definition. Indeed, SPLC’s broad brush wrongfully paints the

Ministry in a horrible light leaving the “hate map”

readers with the impression the Ministry participates

in acts of hate like the KKK and neo-Nazis. Nothing

could be further from the truth. Declaring a Christian

ministry, that exists to serve its community and share

the love of Jesus with the world, to be a hate group

constitutes libel per se under Alabama law. (App. at 19).2

B. Procedural History

The Ministry filed its Complaint in the Northern

District of Alabama against SPLC. Not relevant here,

the Ministry brought additional claims against GuideStar USA, Amazon.com, Inc. and the AmazonSmile

Foundation (the “Amazon Defendants”). (App. at 117).

Thereafter, the Ministry filed its First Amended Complaint alleging its common law defamation claims

against SPLC and related claims against the Amazon

Defendants for its acts against the Ministry in reliance on SPLC’s hate group designation. (App. at 117).

2

In 2018, Attorney General Sessions ordered the Department of Justice to review (and potentially cease) its partnerships

with Respondent due to its “hate group” designations that “unfairly defame Americans for standing up for the Constitution or

their faith.” Attorney General Sessions, Attorney General Jeff

Sessions Delivers Remarks at the Alliance Defending Freedom’s

Summit on Religious Liberty (Aug. 8, 2018) (transcript available

at https://www.justice.gov/opa/speech/attorney-general-jeff-sessionsdelivers-remarks-alliance-defending-freedoms-summit) (last visited November 22, 2021).

6

Both SPLC and the Amazon Defendants filed motions

to dismiss the First Amended Complaint. (App. at 113).

The District Court referred the motions to Magistrate

Judge David A. Baker, who issued a Report and Recommendation recommending both motions be granted

and the case by dismissed with prejudice. (App. at 113–

14). The Ministry timely objected to the Magistrate’s

Report and Recommendation, and the District Court

heard argument of counsel on the motions to dismiss

on May 29, 2018. Thereafter, the District Court entered

its Order granting the motions to dismiss and entering

judgment for SPLC and the Amazon Defendants. (App.

at 17).

Relevant here, the Magistrate Judge’s and District

Court’s analyses of the Ministry’s defamation claim

against SPLC began and ended with Sullivan. (App. at

23, 121). Specifically, the District Court began by explaining the near-insurmountable hurdle the Ministry

must clear: the Ministry must “plausibly allege” the defamatory statement was: (1) provable as false; (2) actually false; and (3) made with actual-malice. (App. at 23)

(quoting New York Times Co. v. Sullivan, 376 U.S. 254,

280, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964)). Ultimately,

the District Court concluded the Ministry did not complete the herculean effort. (App. at 44–45). The District

Court rejected some of the Ministry’s allegations as

“conclusory” and determined the complaint lacked

“plausible” allegations of SPLC’s internal, subjective

knowledge that its “hate group” designation of the

Ministry was false. (App. at 44).

7

Also applying Sullivan, the Eleventh Circuit concluded the courthouse doors were slammed shut on

the Ministry. (App. at 6). The Eleventh Circuit, with

the assistance of oral argument, affirmed the district

court’s opinion on July 28, 2021. (App. at 1). This

Court’s “actual-malice” standard had another victim.

The Eleventh Circuit summed up its conclusion as to

the claims against SPLC: “Because we agree that Coral

Ridge failed to adequately plead actual malice, we affirm the dismissal of Coral Ridge’s defamation claim.”

(App. at 6). Such was the sole basis for its affirming

the District Court’s dismissal—this Court’s “actualmalice” standard that is presented for review in this

Petition.

The District Court exercised jurisdiction in this

matter under 28 U.S.C. § 1367 as the state law claims

(common law defamation) were supplemental to the

Ministry’s federal law claims under Title II and the

Lanham Act. (App. at 17). The District Court also had

jurisdiction over the common law defamation claims

under § 1332 as the parties are completely diverse and

the amount in controversy exceeds $75,000. (App. at

17).

---------------------------------♦---------------------------------

REASONS FOR GRANTING THE PETITION

Sullivan and its warts are no surprise to the members of this Court. The flaws in its reasoning and its

primary criticisms are discussed below explaining why

this Court should reconsider (or, at a minimum, cabin)

8

its holding. More importantly, Sullivan was a resultsoriented decision and made out of whole cloth a standard for public official and public figure defamation that

was not in place at the time of the Founding nor would

have it been understood by those of the Founding-era

as implicit in the protections of the First Amendment.

This Petition presents a clean opportunity for this

Court to reconsider Sullivan and it should take that

opportunity.

“‘This Court has not hesitated to overrule decisions offensive to the First Amendment (a fixed star in

our constitutional constellation, if there is one).’” Janus

v. Am. Fed’n of State, Cty., & Mun. Emps., Council 31,

138 S. Ct. 2448, 2478, 201 L. Ed. 2d 924 (2018) (quoting Fed. Election Comm’n v. Wisconsin Right To Life,

Inc., 551 U.S. 449, 500, 127 S. Ct. 2652, 168 L. Ed. 2d

329 (2007) (Scalia, J., concurring in part and concurring in judgment)). Often, when asked to reconsider

one of this Court’s precedents that has had an outsized

impact in a particular field for fifty years, stare decisis

cautions against taking that opportunity. And for good

reason. Decisions of this Court should be long-lasting

and because that is the case this Court brings stability

and predictability to the law.

But those concerns are not present here. Despite

its age, Sullivan has not stood the test of time and is

not to be celebrated as landmark constitutional guideposts like Marbury v. Madison, Gideon v. Wainwright,

and those like it. The principles of stare decisis are not

in opposition to reconsidering Sullivan. For instance,

setting aside for the moment whether it was correctly

9

decided, unlike many instances where this Court is

asked to reconsider its prior jurisprudence and must

account for significant reliance interest, such is not

present here. Any reliance interest would only be those

who, by definition, had published false, defamatory

statements. A consideration this Court can easily dispense with leaving this Court with the real question:

Is now the time to reconsider Sullivan?

Our county is experiencing an era of unrivaled

lows in the quality of public discourse coupled with the

fact a lie “will gallop halfway round the world before

the truth has time to pull its breeches on.”3 Not to mention the fact anyone with a cell phone and an internet

connection can become a publisher and broadcast any

message to the world—whether true or not. It is difficult to imagine a better time for this Court to readdress the limits of Sullivan.

As the Court explained in Shelby County, an uncommon exercise of this Court’s substantial judicial

power that alters the state-federal balance may be justified by “exceptional conditions” but that exercise of

power must also change with the times and cannot

simply justify its continued existence on the way

things were in the past. Shelby Cty., Ala. v. Holder, 570

U.S. 529, 549, 553, 133 S. Ct. 2612, 186 L. Ed. 2d 651

(2013) (tracing the history of the Voting Rights Act and

limiting its expansive congressional oversight of a

3

Langworth, Richard M., Galloping Lies, Bodyguards of

Lies, and Lies for the Sake of Your Country, September 30, 2020,

available at (https://richardlangworth.com/galloping-lies) (last

accessed November 19, 2021).

10

traditionally state function—elections). While Sullivan may have been appropriate for a season. Seasons

change. And the time for Sullivan to fade into the

annals of history has come.

SULLIVAN HAS BEEN RIGHTLY CRITICIZED

FOR ITS UNINTENDED CONSEQUENCES

AND ITS SHAKY CONSTITUTIONAL UNDERPINNINGS

I.

At the time it was decided, Sullivan was warmly

received since many saw the Court’s decision as an important tool in protecting Civil Rights in the South.4 In

fact, some saw the Court’s opinion as the last line of

defense against an onslaught of enormous verdicts

(and pending libel actions) against Northern newspapers and media companies aimed to shut out those that

had the courage to speak about the atrocities being

committed against Southern African-Americans. Kagan, Elena A., A Libel Story: Sullivan Then and Now

(reviewing Anthony Lewis, Make No Law: The Sullivan

4

As then-Professor Kagan explained, the verdict in New

York Times carried a particular stench of injustice because of the

circumstances surrounding the verdict. A Libel Story, at p. 202.

Sullivan’s trial judge, Judge Walter Burgwyn Jones (a confederate sympathizer and believer in “white man’s justice”) presided

over the trial, seated an all-white jury in a racially segregated

courtroom, and found for Sullivan on every significant ruling. Id.

Even worse, Sullivan was just the tip of the iceberg. Id. There was

a coordinated campaign in the South to devastate the Northern

press’ ability to shed light on the atrocities being committed in

the South seeking a combined $300 million in libel damages. Id.

And if Sullivan had gone the other way, the coordinated effort

likely would have succeeded. Id. at 200-01.

11

Case and the First Amendment (1991)), 18 Law and Social Inquiry 197, 202–03 (1993) (hereinafter referred to

as “A Libel Story”).

Beginning with lofty goals (protecting Civil Rights

and the freedom of the press and individuals to speak

out against elected officials’ wrongdoing), the Warren

Court’s purposivist leanings were on full display in

Sullivan. The Court worked its way backwards to its

ultimate decision: effectively eliminating a cause of action for libel against a public official. Sullivan’s progeny expanded that well-meaning goal far beyond its

roots and ultimately federalized much of the common

law tort of defamation.

The whispers of opposition to Sullivan after its

inception have now grown into a deafening roar. Its

criticism has generally fallen into two camps: (1) concerns over its practical implications and the virtual

immunity it gives media companies and the impact

that license has had on society and public discourse;

and (2) Sullivan’s doctrinal shortcomings and the

Court’s failure to ground its analysis in either the text

or the original understanding of the First Amendment.

A. Sullivan’s Disastrous Practical Effects

Should be Enough for This Court to Reconsider its Decision

With the passage from the Warren Court to the

Burger Court, a shift in Sullivan’s support began to

make its way through the Court. Since Sullivan’s

12

inception, nearly a dozen justices of this Court have

expressed concern with its onerous standard and its

slamming shut the courthouse doors on legitimate

claims of reputational harm. And leading constitutional scholars have joined in the criticism.

Justice White, who joined the Court’s opinion in

Sullivan, and some of its progeny,5 came to appreciate

its disservice to the First Amendment. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749,

767, 105 S. Ct. 2939, 86 L. Ed. 2d 593 (1985) (White, J.,

concurring in judgment). Justice White explained his

conversion. This Court “struck an improvident balance” between protecting the public’s right to speak

(and hear speech) about public officials and “the competing interest of those who have been defamed in vindicating their reputation.” Id. Even in its short history,

Sullivan had already begun to wreak havoc. Justice

White explained the problem:

[I]n 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

5

Justice White joined Sullivan and also joined (or wrote)

some of its progeny, including, Curtis Pub. Co. v. Butts, 388 U.S.

130, 155, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967) (expanding application of Sullivan’s actual malice rule to public figures that are

not public officials); Time, Inc. v. Hill, 385 U.S. 374, 398, 87 S. Ct.

534, 17 L. Ed. 2d 456 (1967) (expanding application to claims

against publisher for invasion of right of privacy); Garrison v.

State of La., 379 U.S. 64, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964)

(striking down Louisiana criminal libel statute); St. Amant v.

Thompson, 390 U.S. 727, 728, 88 S. Ct. 1323, 20 L. Ed. 2d 262

(1968); among others.

13

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.

Id. at 768.

Although Chief Justice Burger expressed his

agreement with Justice White’s concurrence in Dun &

Bradstreet, Inc.,6 his full-throated demand for Sullivan to be reconsidered came the following term in

Coughlin v. Westinghouse Broad. & Cable, Inc., 476 U.S.

1187, 1188, 106 S. Ct. 2927, 91 L. Ed. 2d 554 (1986)

6

Dun & Bradstreet, Inc., 472 U.S. at 764 (Burger, C.J, concurring) (recognizing Gertz should be overturned and agreeing

with Justice White’s criticism of NYT v. Sullivan).

14

(Burger, C.J., dissenting from denial of certiorari).

Chief Justice Burger and then-Associate Justice

Rehnquist observed Sullivan, in practice, “constitutionally barr[s]” an individual from clearing her or his

name in a court of law when it has been sullied in the

court of public opinion by a false accusation of misconduct. Id. And Sullivan’s standard protects even “egregious conduct on the part of the media.” Id. (quoting

Coughlin v. Westinghouse Broad. & Cable, Inc., 780

F.2d 340 (3d Cir. 1985) (Becker, J.)).

At this same time, members of the Court were not

the only legal minds wrestling with this issue. Across

the street, members of Congress were concerned with

the impact a reversal of Sullivan would have on media

defendants and the White House was asked to wade

into the “raging debate.”7 President Reagan’s counselors,

in response to correspondence from then-Representative

Charles Schumer, advised caution from entering into

the “raging debate” regarding the “near-impossibility

of prevailing under the New York Times” actual malice

standard. Id.

Professor Richard Epstein did not hesitate to jump

into that raging debate.8 Anywhere but 1960s deepSouth Alabama, Sullivan’s claims would have faced a

7

Ronald Reagan Presidential Library and Museum, John G.

Roberts Collection, Box 66, Libel Laws, at p. 10. (available at

https://www.reaganlibrary.gov/public/digitallibrary/smof/counsel/

roberts/box-066/40_485_6909456_066_004_2017.pdf ) (last visited

November 21, 2021).

8

Richard A. Epstein, Was New York Times v. Sullivan

Wrong?, 53 U. Chi. L. Rev. 782, 786 (1986).

15

skeptical judiciary and an even more suspicious jury.

Id. And the case never would have survived pre-trial

motion practice, much less making its way to the

Court. By design, Sullivan brought suit in the Alabama

courtroom (eloquently described by then-Professor

Kagan) that he knew was sympathetic to his claims.

See n.4, supra. Sullivan’s outlandish claims and handpicked venue became the “source of many of the modern problems with the law of defamation” since “the

New York Times decision was influenced too heavily by

the dramatic facts of the underlying dispute that gave

the doctrine its birth.” Id. at 787. To put it bluntly, bad

facts made bad law.

Prior to Sullivan, defamation claims were the sole

province of common law courts. Id. at 788. But faced

with such a clearly unjust verdict, this Court had to

act. Something had to be done to right the injustice of

the $500,000 verdict against the New York Times

based on the flimsiest of evidence and a judicial system

likely (if not openly) stacked against it. Id. The only

problem, as Epstein points out, the Court had few instruments at its disposal to intervene in an otherwise

state law matter. But, act it must.

Results-oriented, the Warren Court used the only

tool in its toolbox—constitutionalizing. Id. By making

the issue one of constitutional magnitude, the Court

was able to federalize common law defamation and

establish a framework to permit (or prevent) claims

brought by public figures. Id. Deciding an issue it

needed not reach, this Court created the actual-malice

standard differing sharply from the existing body of

16

common law defamation. Id. at 795. Epstein explained

the actual-malice standard’s departure from then-recognized principles:

The proposition stands in very sharp opposition to the majority common law position on

the same question, which drew a line between

statements of fact, for which liability was

strict if the statements were false, and statements of opinion, which were generally privileged absolutely because they are incapable of

being either true or false.

Id. at 795–96.

This Court’s pre-Sullivan opinions bear this out.

This Court had previously recognized public elected officials had the right, post-publication, to “find their

remedies for false accusation in actions under libel law

as providing for redress and punishment,” only limiting the right to pre-publication restraint. Id. at 788

(quoting Near v. State of Minnesota ex rel. Olson, 283

U.S. 697, 718–19, 51 S. Ct. 625, 75 L. Ed. 1357 (1931)).

There was no “hint” of constitutional “infirmity” in permitting public figures to bring private tort actions for

defamation. Id. One of the reasons this Court rejected

the use of the pre-publication injunction in Near was

precisely the existence of the post-publication claim for

damages (e.g., the adequate legal remedy). Id. Sullivan

devastates this delicate balance by eliminating the

availability of a legal remedy.

After detailing both the common law history pre- and

post- Sullivan, Epstein resounded the all-too familiar

17

refrain: Sullivan presents an often insurmountable

bar for a public figure plaintiff since it requires proof

of the defendant’s internal state of mind. Id. at 813.

Recognizing what has now become overwhelmingly

evident, “[t]he difficulties of proof under an actual

malice standard have a powerful influence on the overall behavior of the media.” Id. at 809. What Professor

Epstein could not have foreseen are the corresponding

results of the near-complete immunity for media companies when applied to trillion-dollar tech companies.

Then-professor Elena Kagan explained that at the

time, Sullivan’s result appeared “justified, correct,

even obvious,” but over time its unintended consequences have begun to stack up. A Libel Story, p. 208.

Similar to Professor Epstein’s criticisms, her analysis

exposed how the actual malice standard “impose[d] serious costs” both to reputations and “the nature and

quality of public discourse.” Id. Discussing its “obvious

dark side,” Sullivan’s actual-malice standard “allows

grievous reputational injury to occur without monetary compensation or any other effective remedy.” Id.

at 205. The culprits in these situations are often media

companies, the same sympathetic defendants this

Court bent the First Amendment to protect. The protections of the First Amendment extended to prevent

injustice have now become a license to libel.

Although the jury may still be out on whether a

causal connection exists, there is certainly anecdotal

evidence Sullivan brought about a cultural shift in the

press. Id. at 208. And it is easy to see why. Given its

“get-out-of-jail-free card,” the press has significant

18

breathing room (or, “a greater sense of entitlement and

self-importance”) to write and publish without serious

accountability. Id. Then-Professor Kagan wrote:

Is it possible that Sullivan bears some responsibility for a change in the way the press views

itself and its conduct-a change that the general public might describe as increased press

arrogance? It is wise to be wary about attributing too much cultural impact to a Supreme

Court decision; yet it is hard to believe that

those most directly affected by a decision like

Sullivan are in no way changed by it. At the

most basic level, judicial declarations of unaccountability can go to the head. It is hardly

unthinkable that increased legal protection

may lead to a greater sense of entitlement and

self-importance (which in turn may manifest

itself in questionable conduct). But the effects

of Sullivan on the press’s conception of itself

may go yet deeper. Just as the Court treats the

story of Sullivan as an archetype, so too may

the press: the heroic role of the Times in that

case helps to define and inform self-understanding. This mythical image may at times

serve as model, but it also may blind the press

to numerous less attractive aspects of its role

and performance. Thus, the self-image of the

press becomes semi-delusional, and journalists cease to ask the questions of themselves

which they ask of other powerful actors in society.

A Libel Story, p. 210.

19

A few years later, Justice Scalia publicly condemned Sullivan and its failure to find any footing in

the text or original understanding of the First Amendment. In one of a few public statements regarding Sullivan, Justice Scalia stated he “abhor[ed]” Sullivan.9

Justice Scalia’s primary criticism was Sullivan’s lack

of support in the original understanding of the First

Amendment. Lewis & Ottley, John Bruce Lewis &

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 L. Rev. 1, 35–36 (2014) (“In

his view, the framers of the Constitution ‘would have

been appalled’ by the decision and the adoption of the

actual malice standard for public officials. According to

Justice Scalia, the Supreme Court ‘was revising the

Constitution’ with its opinion, not interpreting it.”) (internal citations removed).

Next to pick up the mantle of calling out Sullivan’s

disservice to our legal system, Justice Thomas similarly criticized Sullivan (discussed in more detail below) for its shaky foundation. In his view, there is little,

if any, historical evidence the actual-malice rule comports with the original understanding of the “First

Amendment.” McKee, 139 S. Ct. at 676, 678. Although

McKee presented a poor vehicle for that review, Justice

Thomas called for the Court to take up the case that

presents the question in the appropriate case. Id. Just

9

Charlie Rose, Antonin Scalia Interview (Nov. 27, 2012),

https://charlierose.com/videos/17653 (last visited October 29, 2021),

at 29:21.

20

last term, Justice Thomas reiterated his call for the

Court to reconsider Sullivan re-stating the thought

provoking criticism: “This Court’s pronouncement that

the First Amendment requires public figures to establish actual malice bears ‘no relation to the text, history,

or structure of the Constitution.’” Berisha, 141 S. Ct. at

2425 (Thomas, J., dissenting) (quoting Tah v. Global

Witness Publishing, Inc., 991 F.3d 231, 251 (D.C. Cir.

2021) (Silberman, J. dissenting)).10

Most recently, Justice Gorsuch similarly dissented

from the Court’s denial of certiorari arguing the “momentous changes in the Nation’s media landscape

since 1964” should give the Court reason to return to

its analysis of Sullivan and review whether it remains the correct standard. Berisha, 141 S. Ct. at

2429 (Gorsuch, J., dissenting). Justice Gorsuch noted

the purposivist underpinnings of Sullivan (or, as he

phrased it, “[d]epartures from the Constitution’s original public meaning”) “are usually the product of good

intentions. But less clear is how well Sullivan and all

its various extensions serve its intended goals in today’s changed world.” Id.

Scholars from every position on the political spectrum and Justices appointed by every President since

John F. Kennedy have called for this Court to consider

10

Rejecting his request for the Court to slightly modify the

pleading standard applicable under Sullivan, this Court recently

denied Tah’s Petition for Writ of Certiorari. Tah v. Glob. Witness

Publ’g, Inc., No. 21-121. Although Tah failed to squarely present

Judge Silberman’s call for Sullivan to be overruled.

21

Sullivan’s outside impact on our society. It is time to

answer that call.

B. Sullivan’s Actual-Malice Test Finds No

Support in Either the Text or Historical

Understanding of the Constitution

Any examination of the problems with Sullivan’s

underpinnings risks merely plowing well-worn ground.

Multiple petitions for certiorari have come before this

Court explaining the disconnect between the original

understanding of the First Amendment and Sullivan’s

actual-malice standard. Nonetheless, to begin, there is

no reading of the First Amendment’s text which mandates the actual malice standard. The analysis therefore rests on whether the original understanding of the

“freedom of speech” and “freedom of the press” included

an understanding that those freedoms encompassed

protection from libel claims but for that small subset

of cases where the false statements were published

with actual knowledge of the falsity. As explained

many times before, “those who won our independence”11 would not have understood the First Amendment to impose the actual-malice standard. Justice

Gorsuch provided a brief historical overview:

The Bill of Rights protects the freedom of the

press not as a favor to a particular industry,

11

Whitney v. California, 274 U.S. 357, 375, 47 S. Ct. 641, 71

L. Ed. 1095 (1927), overruled in part by Brandenburg v. Ohio, 395

U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969).

22

but because democracy cannot function without the free exchange of ideas.

*

*

*

Like most rights, this one comes with corresponding duties. The right to due process in

court entails the duty to abide the results that

process produces. The right to speak freely includes the duty to allow others to have their

say. From the outset, the right to publish was

no different. At the founding, the freedom of

the press generally meant the government

could not impose prior restraints preventing

individuals from publishing what they

wished. But none of that meant publishers

could defame people, ruining careers or lives,

without consequence. Rather, those exercising

the freedom of the press had a responsibility

to try to get the facts right—or, like anyone

else, answer in tort for the injuries they

caused. This principle extended far back in

the common law and far forward into our Nation’s history. As Blackstone put it, “[e]very

freeman has an undoubted right to lay what

sentiments he pleases before the public,” but

if he publishes falsehoods “he must take the

consequence of his own temerity.” 4 W. Blackstone, Commentaries on the Laws of England

151–152 (1769). Or as Justice Story later explained, “the liberty of the press do[es] not authorize malicious and injurious defamation.”

Dexter v. Spear, 7 F. Cas. 624 (No. 3,867) (CC

RI 1825).

Berisha, 141 S. Ct. at 2426 (Gorsuch, J., dissenting).

23

The idea that a libelous publication would have to

be evaluated to determine whether it is protected by

the First Amendment would have been a completely

foreign concept to the Founders. The Founders understood libel to be completely outside the protections of

the First Amendment. Chaplinsky v. State of New

Hampshire, 315 U.S. 568, 571–72, 62 S. Ct. 766, 86

L. Ed. 1031 (1942) (internal citations omitted). This

Court’s precedents (until Sullivan) made that clear.

For instance, this Court explained in the context of a

conviction for distributing religious literature:

There are certain well-defined and narrowly

limited classes of speech, the prevention and

punishment of which have never been

thought to raise any Constitutional problem.

These include the lewd and obscene, the profane, the libelous, and the insulting or

‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.

Chaplinsky, 315 U.S. at 571–72 (internal citations

omitted); Beauharnais v. People of State of Ill., 343 U.S.

250, 255, 72 S. Ct. 725, 96 L. Ed. 919 (1952) (“In the

first decades after the adoption of the Constitution . . .

nowhere was there any suggestion that the crime of libel be abolished.”); Roth v. United States, 354 U.S. 476,

483, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957) (“This

phrasing [of the First Amendment] did not prevent this

Court from concluding that libelous utterances are not

within the area of constitutionally protected speech.”).

24

To the contrary, Colonies and States, at the time of

Ratification, imposed criminal penalties for libel (and

certainly permitted civil actions for the common law

tort). Prior to Sullivan, persons accused of libel could

not seek refuge under the First Amendment to prevent

their prosecution. In fact, the opposite was true. Libelous speech was granted no protection under the First

Amendment. Under that (proper) test, if a person was

accused of libel, the First Amendment would have no

place in the analysis. And if found to have libeled another, the First Amendment (historically) provided no

get-out-of-jail-free-card.

Ignoring that body of law, Justice Brennan, writing for the Court, attempted to distinguish the cases

where this Court had excised libelous speech from the

protections of the First Amendment:

Respondent relies heavily, as did the Alabama

courts, on statements of this Court to the effect that the Constitution does not protect libelous publications. Those statements do not

foreclose our inquiry here. None of the cases

sustained the use of libel laws to impose sanctions upon expression critical of the official

conduct of public officials.

New York Times Co., 376 U.S. at 268 (footnote omitted).

Drawing a very narrow distinction, Justice Brennan

flatly ignored the prior decisions of the Court permitting the First Amendment and common law defamation

actions against public figures to exist concurrently.

Notably, Justice Brennan did not point to writings of

25

the Founders or judicial opinions from the Founding

supporting this strained reading of the First Amendment. Nor could he have, since this reading was of recent vintage thrust onto the Constitution.

At bottom, the historical record (completely overlooked by the Court in Sullivan) compels this Court’s

reconsideration of Sullivan. There is no reading of the

First Amendment, consistent with the Founder’s understanding of the text, that would permit Sullivan’s

test, much less compel it.

C. The Ministry’s Experience in the Courts

Below is the Perfect Example of Sullivan’s Dark Side

SPLC designated the Ministry to be a hate group

and published that information to third parties

through its website and other means. (App. at 20). The

Hate Map’s purpose is to permanently tar the reputation of those listed on the map and, like occurred with

the Amazon Defendants, encourage businesses to void

those listed on the Hate Map. Under Alabama defamation law, this conduct constitutes libel per se. Blevins v.

W.F. Barnes Corp., 768 So. 2d 386 (Ala. Civ. App. 1999).

Although a defendant may raise truth as a defense to

a claim of libel per se, the burden is on the defendant

to prove the truth of his statement. Gaither v. Advertiser Co., 102 Ala. 458, 463 (Ala. 1893); Ripps v. Herrington, 241 Ala. 209, 212 (Ala. 1941).

While actual malice is not an element of libel per

se or indirect defamation in Alabama, relying squarely

26

on Sullivan the Magistrate Judge recommended dismissal and the District Court dismissed the Ministry’s

common law defamation claim against SPLC, reasoning the Ministry failed to sufficiently plead facts to

show it could later prove Sullivan’s actual-malice

standard. Imagine the difficulty of that proposition: at

the pleading stage, prior to any discovery, the Ministry

had to plead specific facts to show SPLC subjectively

knew its designation that the Ministry is a hate group

to be false.

Well-meaning in its purpose, Sullivan upended

200 years of common law defamation jurisprudence.

The time has come for Sullivan to be reconsidered and

cabined to its rightful place: protecting free discourse

regarding public officials, while not foreclosing the

right of public figures to bring a claim for reputational

harm caused by false statements.

II.

THIS CASE IS AN EXCELLENT VEHICLE

FOR RECONSIDERING SULLIVAN

This case is an excellent vehicle for addressing

whether Sullivan should be substantially modified or

overruled. The Magistrate Judge relied solely on the

actual-malice standard in recommending the dismissal of the Ministry’s claims against SPLC. While recognizing that it must accept all factual allegations in the

Complaint as true, applying Sullivan, the District

Court agreed (albeit examining Sullivan differently)

and dismissed the Ministry’s Complaint at the pleading stage without any opportunity to amend or take

27

discovery. And the Eleventh Circuit affirmed the dismissal for the same reason—Sullivan.

The procedural posture of this case provides the

Court with a clean platform free of litigated factual

disputes to decide the purely legal question of the appropriate legal standard to apply to a common law defamation claim brought by a public figure. This case

squarely calls into question Sullivan and there is no

way to distinguish its holding or avoid its application.

The Court is left with a perfected record for determining whether and in what form Sullivan should continue to exist. That is not to say factual disputes do

not exist. Those disputes will be properly resolved on

remand under whatever test this Court adopts postSullivan.

Moreover, it is important for this Court to take this

opportunity to address Sullivan, one way or the other.

If this Court wishes to declare Sullivan to be good law

and permit its standard to exist for the next fifty years,

it should say so. But, by every indication, a majority of

the members of this Court do not believe Sullivan

should continue unrefined.

Legal challenges to Sullivan may not come before

the Court again if this Court declines to take this case.

In the past few terms, this Court has passed on three

opportunities (McKee, Lawson, and Tah) to reassess

Sullivan (although each of those cases presented procedural challenges not present in this case). This

Court’s denial of certiorari in this case will send a

message it is not willing to reconsider the fundamental

28

principles of Sullivan. Given the enormous amount of

time and resources it takes to bring such a challenge

through the trial court, intermediate appellate court,

and finally to this Court, such a rejection would likely

discourage future litigants from expending the resources to bring another opportunity to this Court.

2021 is a remarkably different cultural and legal

landscape than what the Court faced in 1964. Greater

accountability increases civility in the culture and

journalistic integrity in the media. The time has come

for the Court to reconsider the ongoing viability and

reach of Sullivan.

---------------------------------♦---------------------------------

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

JEREMY D. BAILIE

WEBER, CRABB & WEIN, P.A.

5453 Central Avenue

St. Petersburg, Florida 33710

(727) 828-9919

Jeremy.Bailie@webercrabb.com

DAVID C. GIBBS, III

Counsel of Record

THE NATIONAL CENTER

FOR LIFE & LIBERTY, INC.

2648 F. M. 407, Suite 240

Bartonville, Texas 76226

(727) 362-3700

dgibbs@gibbsfirm.com