Amicus Curiae Brief — Don Blankenship, Petitioner v. NBCUniversal, LLC, et al.

No. 22-1125

444444444444444444444444444444444444444444

IN THE

Supreme Court of the United States

____________________

DON BLANKENSHIP,

Petitioner,

v.

NBCUNIVERSAL, LLC, ET AL., Respondents.

____________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

____________________

Brief Amicus Curiae of Free Speech Coalition,

Free Speech Defense and Education Fund,

America’s Future, Public Advocate of the

United States, Constitution Party National

Committee, U.S. Constitutional Rights Legal

Defense Fund, Conservative Legal Defense and

Education Fund, and Restoring Liberty Action

Committee in Support of Petitioner

____________________

RICK BOYER

Lynchburg, VA

JOSEPH W. MILLER

Fairbanks, AK

WILLIAM J. OLSON*

JEREMIAH L. MORGAN

WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4

Vienna, VA 22180

(703) 356-5070

wjo@mindspring.com

Attorneys for Amici Curiae

KERRY L. MORGAN

Wyandotte, MI

*Counsel of Record

June 20, 2023

JAMES N. CLYMER

Lancaster, PA

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TABLE OF CONTENTS

Page

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

INTEREST OF THE AMICI CURIAE . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT

I.

NEW YORK TIMES V. SULLIVAN WAS APPLIED

BELOW TO IMMUNIZE MEDIA CONGLOMERATES

WORKING AT THE BEHEST OF GOVERNMENT

OFFICIALS TO DESTROY PETITIONER’S

REPUTATION AND UNDERMINE HIS CAMPAIGN

FOR FEDERAL OFFICE . . . . . . . . . . . . . . . . . . . . . 5

II. THE DEFAMATION SUFFERED BY PETITIONER

CONSTITUTED DEFAMATION PER SE . . . . . . . . . . 8

III. NEW YORK TIMES V. SULLIVAN IMMUNIZES

THE BEARING OF FALSE WITNESS AND THE

THEFT OF REPUTATION . . . . . . . . . . . . . . . . . . . 11

IV. THE CIRCUIT COURT UNDERSTOOD NEW YORK

TIMES V. SULLIVAN AND ITS PROGENY TO

PROTECT BOTH SEDITIOUS LIBEL AND LIBEL

AGAINST OTHERS . . . . . . . . . . . . . . . . . . . . . . . 15

V. NEW YORK TIMES V. SULLIVAN IS AMONG THIS

COURT’S MOST ROUNDLY CRITICIZED

DECISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

ii

TABLE OF AUTHORITIES

Page

HOLY BIBLE

Exodus 20:16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Proverbs 12:19 . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Proverbs 18:8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Proverbs 18:13 . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Proverbs 18:17 . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Proverbs 22:1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

12

13

12

13

13

12

CONSTITUTION

Article I, Section 6 . . . . . . . . . . . . . . . . . . . . . . 18, 19

Amendment I . . . . . . . . . . . . . . . . . . . . . 4, 15, 21, 25

Amendment XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

CASES

Abrams v. United States, 250 U.S. 616 (1919) . . . 20

Berisha v. Lawson, 141 S. Ct. 2424 (2021) . . . 23, 24

Carey v. Piphus, 435 U.S. 247 (1978) . . . . . . . . . . . 9

Dun & Bradstreet v. Greenmoss Builders, 472

U.S. 749 (1985). . . . . . . . . . . . . . . . . . . . . . . . . 22

Gertz v. Robert Welch, 418 U.S. 323 (1974). . . . . . 22

Jackson v. Gannon-Jackson, 2021 N.Y. Misc.

LEXIS 4800 (N.Y. Sup. Ct. 2021 (Erie Co.)) . . 10

Lippard v. Holleman, 271 N.C. App. 401 (N.C.

Ct. App. 2020) . . . . . . . . . . . . . . . . . . . . . . . . . 10

Marbury v. Madison, 5 U.S. 137 (1803) . . . . . . . . 14

McKee v. Cosby, 139 S. Ct. 675 (2019). . . . 21, 24, 25

Milan v. Long, 78 W. Va. 102 (1916) . . . . . . . . . . . . 9

Myers v. Tel., 332 Ill. App. 3d 917 (Ill. Ct.

App. 5th Dist. 2002). . . . . . . . . . . . . . . . . . . . . 10

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

(1964) . . . . . . . . . . . . . . . 3-5, 10-12, 15-17, 21-25

iii

Northern Sec. Co. v. United States, 193 U.S.

197 (1904). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Respublica v. Oswald, 1 U.S. 319 (Pa. 1788) . . . . 14

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

(1957) . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 20, 21

United States v. Johnson, 383 U.S. 169 (1966) . . . 18

MISCELLANEOUS

W. Blackstone, Commentaries on the Laws

of England . . . . . . . . . . . . . . . . . . . . . . . . . 14, 16

E. Kagan, “A Libel Story: Sullivan Then

and Now,” 18 LAW & SOC. INQUIRY 197

(1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 22, 23

W. Prosser, Law of Torts (4th ed. 1971) . . . . . . . . 16

William Shakespeare, Othello, act 3, scene 3 . . . . 13

F.S. Siebert, Freedom of the Press in England,

1476-1776 (Univ. of Ill. Press: 1952). . . . . . . . 19

Sources of Our Liberties (R. Perry and J.

Cooper, eds., ABA Found: 1978) . . . 17, 18, 19, 20

G. Stone, Constitutional Law (2d ed.: Little,

Brown: 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Herbert W. Titus, “Defamation: Corrupting

the First Amendment” Forecast, Vol. 3,

Nos. 10-11 (1996) . . . . . . . . . . . . . . . . . . . . . . . 15

INTEREST OF THE AMICI CURIAE1

Free Speech Coalition, Free Speech Defense and

Education Fund, America’s Future, Public Advocate of

the United States, U.S. Constitutional Rights Legal

Defense Fund, and Conservative Legal Defense and

Education Fund are nonprofit organizations, exempt

from federal income tax under either sections 501(c)(3)

or 501(c)(4) of the Internal Revenue Code.

Constitution Party National Committee is a national

political party. Restoring Liberty Action Committee is

an educational organization. These entities, inter alia,

participate in the public policy process, including

conducting research, and informing and educating the

public on the proper construction of state and federal

constitutions, as well as statutes related to the rights

of citizens, and questions related to human and civil

rights secured by law.

STATEMENT OF THE CASE

Petitioner Don Blankenship served as CEO of

Massey Energy Co. at the time of an explosion at the

company’s Upper Big Branch mine which resulted in

29 deaths.

Federal prosecutors brought both

numerous felony and misdemeanor charges against

Blankenship, who was acquitted by a jury of all felony

charges, while being convicted of one misdemeanor:

1

It is hereby certified that counsel of record for all parties

received notice of the intention to file this brief at least 10 days

prior to the filing of it; that no counsel for a party authored this

brief in whole or in part; and that no person other than these

amici curiae, their members, or their counsel made a monetary

contribution to its preparation or submission.

2

conspiracy to violate federal mine safety laws and

regulations. Blankenship v. NBCUniversal, LLC, 60

F.4th 744, 750 (4th Cir. 2023).

After his release from prison in 2017, Blankenship

sought the Republican nomination for U.S. Senate

from West Virginia in 2018. During his campaign, a

number of media organizations reporting on the race

falsely referred to Blankenship as a “felon” and

“convicted felon,” and having been convicted of

manslaughter. He was unable to obtain retractions of

those claims before the primary election. Blankenship

filed multiple defamation lawsuits against 16 media

defendants, but the district court granted summary

judgment to most of the defendants, and three cases

were consolidated on appeal in the Fourth Circuit,

which affirmed the district court rulings in all

respects. Blankenship at 751-755.

SUMMARY OF ARGUMENT

The highly defamatory statements by major media

conglomerates against Petitioner as alleged in his

complaint, and clearly set out in the Fourth Circuit

opinion below, are not disputed. Two of the most

powerful elected officials in the country (President

Trump and Senator Mitch McConnell) urged Rupert

Murdoch of Fox News to “dump on” and defeat

Petitioner Blankenship then running in the

Republican Primary to represent West Virginia in the

U.S. Senate. That message was relayed from Murdoch

to senior executives, and on numerous occasions,

Blankenship was falsely accused by anchors and

commentators of being a “felon” and “convicted felon.”

3

Judge Andrew Napolitano’s plea to correct his own

defamatory statements made on air was denied by Fox

News producers, and the charges were corrected only

after the primary election had resulted in Petitioner’s

loss. By any standard, this case presented an

exceptionally strong circumstantial showing of “actual

malice,” and if these facts were not sufficient to avoid

summary judgment, this Court’s test in New York

Times v. Sullivan is hopelessly flawed.

A person’s reputation is his most valuable asset,

and defamatory charges, particularly charges of the

commission of a crime, can destroy a reputation and

derail a candidacy for office. Removing the remedy for

a violation of this right undermines the nation’s claim

to be ruled by laws, not men. False allegations that a

person has committed a felony have long been not just

defamation, but defamation per se, making it easier to

bring even without actual damages. Yet here, as in so

many defamation cases, New York Times was

interpreted by the lower courts as erecting a nearly

insurmountable barrier, and summary judgment was

granted to the defendants.

In New York Times, Justice Brennan justified

imposing the “actual malice” standard in a case

involving criticism of government officials because it

was like seditious libel. Sadly, that exemption from

liability was expanded to prevent claims by public

figures, and here allowed actual government officials

to participate in defaming those who would challenge

their power.

4

Few Supreme Court cases have received the degree

of criticism that New York Times has received, most

notably including Justice Byron White’s recanting of

his participation in that radical decision in 1985.

Justice Kagan’s 1993 article discussed the decision in

its historical context, observing that “the factual

situation before the Court pushed legal questions to

the margin: the adoption of the actual malice rule ...

may in fact have resulted from the extraordinary

circumstances of the case.”2 She recognized “[t]he

obvious dark side of the Sullivan standard is that it

allows grievous reputational injury to occur without ...

effective remedy.” Id. at 205. Justice Gorsuch

described how New York Times has allowed victims of

defamation to be destroyed without redress. Justice

Thomas has convincingly demonstrated that the actual

malice rule is in no way connected to the text or

history of the First or Fourteenth Amendments. For

all of these reasons, it should be re-examined, and this

case is an excellent vehicle by which to do so.

2

E. Kagan, “A Libel Story: Sullivan Then and Now,” 18 LAW &

SOC. INQUIRY 197, 202-03 (1993).

5

ARGUMENT

I.

NEW YORK TIMES v. SULLIVAN WAS

APPLIED BELOW TO IMMUNIZE MEDIA

CONGLOMERATES WORKING AT THE

BEHEST OF GOVERNMENT OFFICIALS TO

DESTROY PETITIONER’S REPUTATION

AND UNDERMINE HIS CAMPAIGN FOR

FEDERAL OFFICE.

Petitioner Blankenship was the victim of a hightech digital political assassination by some of the

nation’s most powerful media conglomerates,

performed at the behest of powerful federal

government officials. Petitioner was then left without

remedy due to this Court’s decision in New York Times

v. Sullivan, 376 U.S. 254 (1964). Petitioner’s situation

is not unique, as New York Times, and the doctrines it

has spawned during its half-century reign, have

allowed and thus actually encouraged powerful media

forces to damage the reputation of untold numbers of

Americans.

Petitioner’s defamation claims make this case an

excellent vehicle to reconsider New York Times and its

progeny because the shocking list of both false and

serious accusations leveled against Petitioner are

undisputed, all having been carefully memorialized by

the Fourth Circuit. Additionally, these charges were

leveled against him as part of a partially revealed

conspiracy to defeat his 2018 campaign for federal

office. In this section, these amici address only the

defamatory statements of Fox News:

6

• On April 25, 2018, Judge Andrew Napolitano of

Fox News stated on air a gross falsehood — that

Blankenship “went to jail for Manslaughter

after people died in a mine accident.” The truth

was that Blankenship had never been convicted

of manslaughter, but rather of “conspiracy to

violate federal mine safety laws and

regulations.”

The Blankenship campaign

demanded a correction, which Judge Napolitano

wanted to broadcast, but his producers at Fox

News refused.

See Blankenship at 751

(emphasis added).

• On May 3, an aide to Senator Mitch

McConnell emailed Martha MacCallum of Fox

News because McConnell was “‘pretty ticked’

about Blankenship making public comments

attacking Chao, McConnell’s wife.” “On May 6,

Fox News Chairman Rupert Murdoch emailed

two senior executives at the network, writing:

‘Both Trump and McConnell appealing for

help to beat unelectable former mine owner

who served time. Anything during day helpful

but Sean and Laura dumping on him hard

might save the day.’” Id. (emphasis added).

• “On May 7, anchor Neil Cavuto discussed

Blankenship [saying] ... ‘Of course, he’s a

convicted felon.’” Cavuto previously had

received a briefing packet that explained the

conviction was only for a misdemeanor. Id.

(emphasis added).

7

• “Between May 7 and May 9, four other Fox

commentators also referred to Blankenship as

a ‘felon’ or ‘convicted felon’ on air.” Id. at 752

(emphasis added).

• Requests for correction by Fox were either

denied or disregarded.

Only after the

primary election, and the character

assassination had contributed to defeating

Blankenship, when he was interviewed by

Cavuto professing ignorance as to what a felony

was, Fox News began to make clear that

Blankenship’s conviction was for a

misdemeanor. See id.

Even in the face of these damning allegations, the

district court was quick to excuse Fox News anchors

and commentators for making these false accusations,

and the circuit court readily agreed. Although the

circuit court admitted that “Murdoch and McConnell

wished to damage Blankenship’s Senate candidacy[,]

[that fact] ‘is not dispositive standing alone.’” Id. at

760. But it was not “standing alone.” The court of

appeals disregarded the cumulative effect of: (i) a

demand by the President and the Senate Minority

Leader, two of the most powerful people in the country,

that Rupert Murdoch use Fox News airtime to damage

Blankenship’s candidacy; (ii) Murdoch’s relaying that

direction to two “senior executives”; (iii) multiple Fox

anchors and commentators acting consistent with that

direction to “dump on” Blankenship “hard”; (iv) the

fact that Neal Cavuto was known to have had a memo

explaining that Petitioner committed a misdemeanor

before he reported he committed a felony, explaining

8

it away because he was “not a lawyer” even though he

was staffed by an army of lawyers; and, perhaps most

importantly, (v) the refusal of Fox News to honor

Judge Napolitano’s requests to go on air to correct the

false charge he had leveled at Petitioner.

In sum, the circuit court treated the professional

anchors and commentators at Fox as though they had

the intellect of Will Ferrell’s character in the movie

Anchorman, and even being backed by an army of Fox

News lawyers, had no idea what a misdemeanor and a

felony were. The circuit court apparently believed

“actual malice” could only be established if there was

clear proof that “Murdoch instructed anchors to falsely

call Blankenship a felon....” Id. at 761. Multiple

repetitions of a serious, false character assassination,

combined with clear motive to carry out a political hit,

meant nothing to the circuit court. If this Court’s

precedents were correctly applied below, they are in

desperate need of re-examination by this Court.

II. THE

DEFAMATION

SUFFERED

BY

PETITIONER CONSTITUTED DEFAMATION

PER SE.

The false allegations waged against Blankenship

asserted that he was: a “felon,” a “convicted felon,” and

that he had been convicted of “Manslaughter.” These

specific libelous and slanderous charges have

historically been considered among the most egregious

types of defamation which have been actionable “per

se” — without having to prove actual damages.

9

The essence of slander per se is the publication

by spoken words of [i] false statements

imputing to a person a criminal offense;

[ii] a loathsome disease; [iii] matter affecting

adversely a person’s fitness for trade, business,

or profession; or [iv] serious sexual misconduct.

[Carey v. Piphus, 435 U.S. 247, 262 n.18 (1978)

(emphasis added).]

There were good reasons for adopting this special

rule lowering the bar to bring defamation actions for

these heinous offenses, as this Court has explained:

those forms of defamation that are actionable

per se are virtually certain to cause serious

injury to reputation, and ... this kind of injury

is extremely difficult to prove.... Moreover,

statements that are defamatory per se by their

very nature are likely to cause mental and

emotional distress, as well as injury to

reputation, so there arguably is little reason

to require proof of this kind of injury either.

[Id. at 262.]

West Virginia, where Petitioner resides, adopts the

view that the false accusation of either a felony or a

misdemeanor gives rise to a defamation claim.

“Written words charging a person with the commission

of any crime, whether a felony or a misdemeanor, are

actionable, without allegation or proof of special

damages.” Milan v. Long, 78 W. Va. 102, 104 (W. Va.

1916) (emphasis added).

10

Accusing Blankenship of committing a felony is

much more damaging to his reputation than correctly

reporting he committed a misdemeanor. For example,

a New York court has found a Class A misdemeanor

not to constitute a “serious crime” for defamation

purposes, while a felony would be. Jackson v.

Gannon-Jackson, 2021 N.Y. Misc. LEXIS 4800, at *1819 (N.Y. Sup. Ct. 2021 (Erie Co.)) (emphasis added). In

North Carolina, a crime that is “only a misdemeanor,

not a felony,” is not an “‘infamous crime’” and is “not

libel per se.” Lippard v. Holleman, 271 N.C. App. 401,

450 (N.C. Ct. App. 2020) (emphasis added).

The media conglomerates which slandered

Blankenship hid behind the notion that the distinction

between a felony and a misdemeanor is a confusing

technicality. Illinois courts previously addressed that

argument:

[w]hile most persons would be unable to give a

precise legal definition of the terms

“misdemeanor” or “felony,” we have no doubt

that the prevailing view would be that a

misdemeanor is a minor offense and a

felony is a serious crime.... The likelihood

of damage to one’s reputation by the false

attribution of felonious conduct approaches

a near certainty. [Myers v. Tel., 332 Ill. App.

3d 917, 922 (Ill. Ct. App. 5th Dist. 2002)

(emphasis added).]

Rejecting this consensus based on New York Times,

the Fourth Circuit cavalierly shrugged off the deeper

defamatory sting of Respondents’ false felony

11

allegations against Petitioner. The court asserted that

“no reasonable jury could find by clear and convincing

evidence that Cavuto, who is not a lawyer, understood

it was inaccurate to describe Blankenship as a

‘convicted felon’” (Blankenship at 759), and it assumed

that “[Kevin] McLaughlin, a non-lawyer, simply did

not understand the legal distinction between a felony

and a misdemeanor in this case.” Id. at 763-764. But

it is clear that Respondents were attempting to convey

that Petitioner had committed a serious crime. CNN’s

S.E. Cupp stated of Petitioner, “‘you’re a convict, you’re

a felon. Oh my God.’” Id. at 753. MSNBC’s Chris

Hayes, likewise, stated, “‘A slap on the wrist for a dude

who killed 29 people ... Very disappointing ... he’s

killed more people than most terrorists ever do.’” Id.

at 763. Clearly, inflicting the defamatory sting from

using the word “felon” was intended, but under New

York Times v. Sullivan, accountability for making a

damaging falsehood was removed and further libels

and slanders thereby encouraged.

III. NEW

YORK

TIMES

v.

SULLIVAN

IMMUNIZES THE BEARING OF FALSE

WITNESS AND THE THEFT OF

REPUTATION.

The district court correctly understood that

Petitioner Blankenship’s “claims for defamation, false

light invasion of privacy, and civil conspiracy” were

brought because defendants had “caused him injury by

damaging his reputation and contributing to his

defeat in the 2018 primary.” Blankenship at 755

(emphasis added). However, after that opening

statement, the court made not one reference to

12

Blankenship’s reputation, and scant reference to the

plan to defeat his candidacy and the effect of the

defamation on his campaign, other than to state he

“lost the primary election....” Id. at 750.

The court of appeals focused rather on the

unfairness of holding major news media figures

accountable for what clearly would have been

defamatory statements, but for the New York Times

decision. In constitutionalizing most assaults on the

reputation of government officials, and later, of public

figures, this Court’s jurisprudence appears to treat

damage to the reputation of plaintiffs as not all that

significant — unavoidable “collateral damage”

necessary to giving robust meaning to the First

Amendment.

However, until 1964, a person’s

reputation was understood in the legal world to be an

immensely valuable commodity — a protected property

right.

Holy Writ affirms the great value ascribed to each

individual’s reputation. See Proverbs 22:1 (“A good

name is rather to be chosen than great riches....”). To

protect an individual’s good name, the Ninth

Commandment prohibits use of falsehoods to injure

the reputation of another. See Exodus 20:16 (“Thou

shalt not bear false witness against thy neighbour.”).

If that Commandment is violated by the utterance of

defamatory words, those words become irretrievable,

because once a defamatory thought is placed in the

mind of another person, that becomes the lens through

which that person will be viewed. See Proverbs 18:8

(“The words of a talebearer are as wounds, and they go

down into the innermost parts of the belly.”).

13

Immunizing professional news anchors and

commentators from accountability for repeating and

leveling serious charges before confirming them to be

true actually encourages that shameful behavior. See

Proverbs 18:13 (“He that answereth a matter before he

heareth it, it is folly and shame unto him.”).

To be sure, we are warned not to automatically

believe the accusation against a person without

hearing the other side. See Proverbs 18:17 (“He that is

first in his own cause seemeth just; but his neighbour

cometh and searcheth him.”).

But in political

campaigns, voters are predisposed to believe negative

information about those whom they oppose when

received from media sources with which they agree,

whether the charges be true or false. To be sure, lies

do not prevail in the end. See Proverbs 12:19 (“The lip

of truth shall be established for ever: but a lying

tongue is but for a moment.”). However, campaigns

end on election day, and corrections to defamation

made thereafter3 may help mitigate long-term damage,

but do nothing to remedy the immediate injury.

Shakespeare wrote, “Who steals my purse steals

trash. ’Tis something, nothing; ’Twas mine, ’tis his, and

has been slave to thousands; But he that filches from

me my good name robs me of that which not enriches

him, and makes me poor indeed.”4

3

See post-election interview of Blankenship by Cavuto.

Blankenship at 752.

4

William Shakespeare, Othello, act 3, scene 3.

14

One of the drafters of Pennsylvania’s constitution,

William Lewis, observed:

the injuries which could be done to any other

property, might be repaired; but reputation

was not only the most valuable, but, likewise,

the most delicate of human possessions. It was

the most difficult to acquire; when acquired, it

was the most difficult to preserve; and when

lost, it was never to be regained. [Respublica

v. Oswald, 1 U.S. 319, 329 (Pa. 1788).]

In his Commentaries on the Laws of England, Sir

William Blackstone observed that “it is a settled and

invariable principle in the laws of England, that every

right when with-held must have a remedy, and every

injury it’s proper redress.” III W. Blackstone,

Commentaries on the Laws of England at 109 (Univ. of

Chi. Press: 1979) (emphasis added). And it was in

response to this observation that Chief Justice

Marshall wrote his now famous paean about the legal

system of the newly formed United States of America:

The government of the United States has been

emphatically termed a government of laws,

and not of men. It will certainly cease to

deserve this high appellation, if the laws

furnish no remedy for the violation of a

vested legal right. [Marbury v. Madison, 5

U.S. 137, 163 (1803) (emphasis added).]

Plaintiff was repeatedly defamed by being

described as a “felon,” or a “convicted felon” by media

defendants hostile to his campaign to serve the people

15

of West Virginia in the U.S. Senate. The resulting

reputational loss was nationwide, but the short term

effect on his political candidacy in West Virginia likely

was devastating. Yet the pernicious effects of New

York Times and its progeny effectively “closed the

courthouse door” to Blankenship, thereby ensuring

that there would be no judicial remedy for these

wrongs. The district and circuit courts have followed

this Court’s lead to deny a remedy to this injured

Petitioner as well as many others and must be

corrected.

IV. THE CIRCUIT COURT UNDERSTOOD NEW

YORK TIMES v. SULLIVAN AND ITS

PROGENY TO PROTECT BOTH SEDITIOUS

LIBEL AND LIBEL AGAINST OTHERS.5

At the outset of his discussion of the New York

Times’ First Amendment claim, Justice Brennan

acknowledged that the Alabama courts had relied “on

statements of this Court to the effect that the

Constitution does not protect libelous publications.”

New York Times at 268. He then pivoted: “[t]hose

statements do not,” Justice Brennan continued,

“foreclose our inquiry here.” Id. Instead of conducting

5

Many of the concepts set out in this section were developed in an

important paper by founding Dean of Regent Law School, Herbert

W. Titus, “Defamation: Corrupting the First Amendment,”

Forecast, Vol. 3, Nos. 10-11 (1996) and in an amicus brief (Feb. 6,

2020) filed in the Eleventh Circuit by some of these same amici in

Coral Ridge Ministries Media v. Amazon & SPLC, 6 F.4th 1247

(11th Cir. 2021) and in an amicus brief (Dec. 30, 2021) filed in

support of a petition for certiorari in that case, U.S. Supreme

Court, Docket No. 21-802.

16

a careful inquiry, Justice Brennan offered only a very

brief survey of case precedents concerning libels of

public officials before concluding that “we are

compelled by neither precedent nor policy to give any

more weight to the epithet ‘libel’ than we have to

other ‘mere labels’ of state law.” Id. at 269 (emphasis

added). Before Justice Brennan’s opinion, libel law

may never before have been described by a judge as a

mere “epithet” (i.e., a disparaging or abusive word).

According to Blackstone, libel was a well-established

common law cause of action with specified elements,

including burdens of proof as to the truth or falsity of

the defamatory statements at issue:

A second way of affecting a man’s reputation is

by printed or written libels ... which set him in

an odious or ridiculous light, and thereby

diminish his reputation. [III Blackstone’s

Commentaries on the Laws of England at 125.]

Undeterred by this English common law pedigree

and its American counterpart,6 Justice Brennan

asserted that “libel can claim no talismanic immunity

from constitutional limitations[,] [but] must be

measured by standards that satisfy the First

Amendment.” New York Times at 269. And what were

those standards, and where might they be found?

Justice Brennan began not with the text, but with the

atextual label “freedom of expression.”

6

See W. Prosser, Law of Torts at 737-801 (4th ed. 1971).

17

The general proposition that freedom of

expression upon public questions is secured

by the First Amendment has long been settled

by our decisions.

The constitutional

safeguard, we have said, “was fashioned to

assure unfettered interchange of ideas for the

bringing about of political and social changes

desired by the people.” [Id. (emphasis added).]

As authority, the opinion for the Court by Justice

Brennan cited his own opinion for the Court in Roth v.

United States, 354 U.S. 476 (1957), decided just seven

years before in the case that revolutionized the law of

obscenity. The Roth decision was put to use by the

Court to upend libel law by adopting a new 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.” New York Times at

279-80.

In James Madison’s initial draft submitted to the

First Congress, the speech guarantee stated: “The

people shall not be deprived or abridged of their right

to speak, to write, or to publish their sentiments....”

See Sources of Our Liberties at 422 (R. Perry and J.

Cooper, eds., ABA Found.: 1978). Therefore, Madison’s

open-ended “right to speak, to write, or to publish” was

reduced in Committee to read simply — “the freedom

of speech.” (Emphasis added.) According to Webster’s

1828 Dictionary, the word “the” was commonly used

“before nouns ... to limit their signification to a specific

18

thing or things.” The manifest purpose of the change

in Madison’s broad-based first draft, then, was to limit

its reach, not to enlarge it. Furthermore, by using the

definite article, the framers indicated that they had

something definite and certain in mind, thereby

indicating that the free speech guarantee was a preexisting right that was discoverable from antecedent

texts and from history. (An understanding of the

meaning of “the freedom of speech” could never be

found in musings by a modern judge pondering what

should be protected by the atextual historically empty

phrase “freedom of expression.” Such judicial sleightof-hand allows judges to make radical changes in law

while maintaining the illusion of constitutional

fidelity.)

Like so many of our constitutional rights, “the

freedom of speech” is traceable to England. See United

States v. Johnson, 383 U.S. 169, 177-78 (1966). Section

9 of the 1689 English Bill of Rights secured “the

freedom of speech, and debates or proceedings in

parliament [and] ought not to be impeached or

questioned in any court or place out of parliament.”

Sources at 247. The adoption of the English Bill of

Rights secured to the English people’s elected

representatives in Parliament assembled protection

against the king’s misuse of power through tyrannical

laws prohibiting “stirring up sedition” and seditious

libel for impugning the reputation of the king. Sources

at 228, 235. This same protection was afforded the

American people’s representatives by Article I, Section

6 of the U.S. Constitution, which provides

jurisdictional immunity for both Senators and

19

Representatives in Congress “for any Speech or Debate

in either House.”

As for the English people themselves, they

remained accountable for calling into question the

reputations of their rulers. Sources at 306. The

English common law against seditious libel remained:

If people should not be called to account for

possessing the people with an ill opinion of the

Government, no government can subsist. For

it is very necessary for all governments that

the people should have a good opinion of it.

And nothing can be worse to any government

than to endeavour to procure animosities as to

the management of it; this has been looked

upon as a crime, and no government can be

safe without it. [Rex v. Tutchin, 14 State

Trials 1095 (1704), quoted in F.S. Siebert,

Freedom of the Press in England, 1476-1776

(Univ. of Ill. Press: 1952).]

But, both in England and in America, prosecutions for

seditious libel were hotly contested. Sources at 307-08.

In America, matters came to a head with the

enactment of the Sedition Act of 1798 which

prohibited, in part, “false, scandalous, and malicious

writings against the government ... with intent to

defame or to bring them [into] contempt or

disrepute....” See G. Stone, Constitutional Law at 1015

(2d ed.: Little, Brown: 1991). The statute was a classic

example of a seditious libel law, and it prevailed in

courts, only to fail politically with the election of

20

President Thomas Jefferson who, in 1801, pardoned

everyone who had been convicted and fined.

In 1919, Justice Oliver Wendell Holmes, Jr., wrote:

I wholly disagree with the argument of the

Government that the First Amendment left the

common law as to seditious libel in force.

History seems to me against the notion. I had

conceived that the United States through many

years had shown its repentance for the

Sedition Act of 1798, by repaying fines that it

imposed. [Abrams v. United States, 250 U.S.

616, 630 (1919) (Holmes, J., dissenting).]

Justice Holmes was right. Both Thomas Jefferson

and James Madison led the Republican resistance to

the Sedition Act on already-established American

constitutional grounds. As Madison wrote in support

of the resistance to the Sedition Act, in America, the

People are sovereign, not Parliament, and that “the

great and essential rights of the people are secured

against legislative as well as executive ambition.” J.

Madison, Report on the Virginia Resolutions quoted in

Sources at 425-26. Thus, “the freedom of speech,”

which had been secured only to English

parliamentarians, was now vested in the People by the

First Amendment.

In contrast to this textual and historic approach,

Justice Brennan used Holmes’ views to launch an

attack on common law defamation. Relying on his

Roth obscenity opinion that “the freedom of speech”

was anchored “to assure unfettered interchange of

21

ideas for the bringing about of political and social

changes desired by the people” (Roth at 484; New York

Times at 269), Justice Brennan forged a contemporary

marketplace of ideas based on practical realities as he

saw them — not enduring principles.

By

reinterpreting the First Amendment through his prism

of pragmatism, Justice Brennan then took the liberty

to fashion his own view of that Amendment,

unhindered by historical precedent or by the

constitutional text. In doing so, Justice Brennan

erased the original historical and textual distinction

between seditious libel and libel — the former

addressing the impermissible protection of the

government’s reputation and the latter designed to

protect the good reputations of individual persons.

See McKee v. Cosby, 139 S. Ct. 675, 679-82 (2019)

(Thomas, J., concurring in the denial of certiorari).

Supreme Court decisions which have ignored the

historic meaning of “the freedom of speech,” begun by

Justice Brennan, have led us to where we are today.

Defamation, particularly against public figures, is

given such strong protection that lower courts

routinely do what the district court below did —

dismiss a complaint for failing to meet an unachievable

standard of specificity of allegation.

V. NEW YORK TIMES v. SULLIVAN IS AMONG

THIS COURT’S MOST ROUNDLY

CRITICIZED DECISIONS.

Only rarely do individual Justices seek

opportunities to admit error, but Justice Byron White,

part of the New York Times majority in 1964, did just

22

that. First, in 1974, Justice White noted the radical

transformation that New York Times had imposed on

the nation. He reflected on the state of the law before

that historic case: “[f]or some 200 years — from the

very founding of the Nation — the law of defamation

and right of the ordinary citizen to recover for false

publication injurious to his reputation have been

almost exclusively the business of state courts and

legislatures.” Gertz v. Robert Welch, 418 U.S. 323, 369370 (1974) (White, J., dissenting).

Then, two decades after New York Times, Justice

White reversed position: “I have ... 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.” Dun &

Bradstreet v. Greenmoss Builders, 472 U.S. 749, 767

(1985) (White, J., concurring). “[T]he reputation and

professional life of the defeated plaintiff may be

destroyed by falsehoods that might have been avoided

with a reasonable effort to investigate the facts. In

terms of the First Amendment and reputational

interests at stake, these seem grossly perverse results.”

Id. at 769.

How this radical change in law occurred was

addressed by now Justice Kagan in a 1993 article

where she described the Court’s invention of a brandnew “actual malice” standard as “puzzling,” and fitting

“the square pegs of many defamation cases into the

23

round holes of Sullivan.”7 Justice Kagan credibly

speculated that “the adoption of the actual malice rule

by Justice Brennan, and the Court’s ready and

unquestioning acceptance of it, may in fact have

resulted from the extraordinary circumstances of the

case.” Id. at 202-203. Likely, the claims against New

York Times fell victim to Justice Oliver Wendell

Holmes’s truism:

“hard cases make bad law.”

Northern Sec. Co. v. United States, 193 U.S. 197, 400

(1904).

Although originally defended as a protection for

attacks on “public officials,” New York Times was soon

expanded to “public figures,” leading Justice Gorsuch

to add another criticism:

Now, private citizens can become “public

figures” on social media overnight. Individuals

can be deemed “famous” because of their

notoriety in certain channels of our now-highly

segmented media even as they remain

unknown in most.... Other persons, such as

victims of sexual assault seeking to confront

their assailants, might choose to enter the

public square only reluctantly and yet wind up

treated as limited purpose public figures too....

[The actual malice standard] has come to leave

far more people without redress than anyone

could have predicted. [Berisha v. Lawson, 141

S. Ct. 2424, 2429 (2021) (Gorsuch, J.,

dissenting from denial of certiorari).]

7

E. Kagan, “A Libel Story” at 199.

24

As Justice Gorsuch pointed out, the confluence of

media conglomeration, online social media, and New

York Times’ results-oriented departure from

constitutional protections, has left millions of victims

such as Petitioner destroyed — politically,

reputationally, financially — with no hope of redress.

The reality is that “[p]ublic figures are powerless to

resist a mass media oligopoly that controls the

airwaves and buys ink by the barrel.” Pet. for Cert. at

30.

Just two years ago, Justice Thomas offered the

most succinct reason for the Court to re-examine New

York Times: “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 at 2425

(Thomas, J., dissenting from denial of certiorari).

Justice Thomas also noted the damage caused by the

atextual “actual malice” standard, and its devaluing of

the reputational rights of defamation plaintiffs.

The lack of historical support for this Court’s

actual-malice requirement is reason enough to

take a second look at the Court’s doctrine. Our

reconsideration is all the more needed because

of the doctrine’s real-world effects. Public

figure or private, lies impose real harm.... [Id.

at 2425 (Thomas, J., dissenting) (citation

omitted).]

Justice Thomas had also observed that neither

New York Times nor its progeny have ever “made a

sustained effort to ground their holdings in the

25

Constitution’s original meaning. As the Court itself

acknowledged, ‘the rule enunciated in the New York

Times case’ is ‘largely a judge-made rule of law,’ the

‘content’ of which is ‘given meaning through the

evolutionary process of common-law adjudication.’”

McKee v. Cosby, 139 S. Ct. 675, 678 (2019) (Thomas, J.,

concurring in the denial of certiorari). Justice Thomas

undertook a thorough survey and concluded that

“[h]istorical practice further suggests that protections

for free speech and a free press — whether embodied in

state constitutions, the First Amendment, or the

Fourteenth Amendment — did not abrogate the

common law of libel.” Id. at 681. Remedies were not

limited to civil recovery. He noted that after the First

Amendment’s adoption, “[t]he States continued to

criminalize libel, including of public figures.” Id. In

fact, “[a]s of 1952, every American jurisdiction ...

punish[ed] libels directed at individuals.” Id. (internal

quotation omitted). “Congresses, during the period

while [the Fourteenth] Amendment was being

considered or was but freshly adopted, approved

Constitutions of ‘Reconstructed’ States that expressly

mentioned state libel laws, and also approved similar

Constitutions for States erected out of the federal

domain.” Id. (internal quotation omitted). “In short,”

Justice Thomas concluded, “there appears to be little

historical evidence suggesting that the New York

Times actual-malice rule flows from the original

understanding of the First or Fourteenth Amendment.”

Id. at 682.

26

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,

RICK BOYER

WILLIAM J. OLSON*

INTEGRITY LAW FIRM JEREMIAH L. MORGAN

P.O. Box 10953

WILLIAM J. OLSON, P.C.

Lynchburg, VA 24506 370 Maple Ave. W., Ste. 4

Vienna, VA 22180

JAMES N. CLYMER

(703) 356-5070

CLYMER MUSSER &

wjo@mindspring.com

SARNO, P.C.

Attorneys for Amici Curiae

408 West Chestnut St.

Lancaster, PA 17603

JOSEPH W. MILLER

KERRY L. MORGAN

JOSEPH MILLER LAW

PENTIUK, COUVREUR

OFFICES, LLC

KOBILJAK, P.C.

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*Counsel of Record

June 20, 2023