Amicus Curiae Brief — Smith & Wesson Brands, Inc., et al., Petitioners v. Estados Unidos Mexicanos

No. 23-1141

In The

Supreme Court of the United States

————♦————

SMITH & WESSON BRANDS, INC., ET AL.,

Petitioners,

v.

ESTADOS UNIDOS MEXICANOS,

Respondent.

————♦————

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the First Circuit

————♦————

BRIEF OF THE NATIONAL RIFLE

ASSOCIATION OF AMERICA AND

INDEPENDENCE INSTITUTE AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

————♦————

DAVID B. KOPEL

INDEPENDENCE INSTITUTE

727 E. 16th Ave.

Denver, CO 80203

GEORGE A. MOCSARY

UNIVERSITY OF WYOMING

COLLEGE OF LAW

1000 E. University Ave.

Laramie, WY 82071

JOSEPH G.S. GREENLEE

Counsel of Record

ERIN M. ERHARDT

NATIONAL RIFLE ASSOCIATION

OF AMERICA – INSTITUTE FOR

LEGISLATIVE ACTION

11250 Waples Mill Rd.

Fairfax, VA 22030

(703) 267-1161

jgreenlee@nrahq.org

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

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

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

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

ARGUMENT.. .............................................................. 4

I.

The Mexican government seeks to extinguish

the Second Amendment as it extinguished the

Mexican constitutional arms right. ...................... 4

II. This case epitomizes the type of abusive

lawsuit PLCAA was enacted to prohibit. ............. 6

A. Similar abusive suits were brought

against firearms manufacturers in the

1980s and 90s. ................................................... 6

B. Congress passed PLCAA to halt the

abusive lawsuits. ............................................. 10

III. Mexico’s attempt to scapegoat lawful

American companies for its own failures

demonstrates the need for PLCAA. .................... 12

A. Mexico’s homicide rates were higher

during the “assault weapons” ban than

after its expiration. ......................................... 12

B. Few Mexican crime guns are determined

to have come from America. ........................... 14

C. Mexican criminals obtain guns from

around the world. ............................................ 18

D. Mexico’s homicide increase is the result of

the Mexican government’s own failures......... 19

ii

IV. This Court decided N.Y. Times v. Sullivan

to halt abusive suits targeting the First

Amendment. ........................................................ 23

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

iii

TABLE OF AUTHORITIES

Page

CASES

Associated Press v. Walker,

388 U.S. 130 (1967) ................................................ 28

Curtis Pub. Co. v. Birdsong,

360 F.2d 344 (5th Cir. 1966) .................................. 28

Henry v. Collins,

380 U.S. 356 (1965) ................................................ 28

Kelley v. R.G. Indus., Inc.,

304 Md. 124 (1985) ................................................... 6

New York Times Co. v. Sullivan,

273 Ala. 656 (1962)................................................. 27

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) .......................... 3, 23, 24, 25, 28

New York Times v. Connor,

165 F.2d 567 (5th Cir. 1966) .................................. 25

Patterson v. Rohm Gesellschaft,

608 F. Supp. 1206 (N.D. Tex. 1985) ......................... 6

Twitter, Inc. v. Taamneh,

598 U.S. 471 (2023) .................................................. 5

CONSTITUTIONAL PROVISIONS

MEX. CONST. art. 10 ..................................................... 4

U.S. CONST. amend. II ........................................... 4, 11

U.S. CONST. amend. XIV ............................................ 11

iv

STATUTES AND REGULATIONS

15 U.S.C. §7901 .......................................................... 10

15 U.S.C. §7901(a)(6) ................................................. 11

15 U.S.C. §7901(a)(7) ................................................. 11

15 U.S.C. §7901(a)(8) ................................................. 11

15 U.S.C. §7902 .......................................................... 10

15 U.S.C. §7903 .......................................................... 10

18 U.S.C. §923............................................................ 15

1988 Md. Laws 3489-90 ............................................... 6

OTHER AUTHORITIES

146 CONG. REC. No. 45 (Apr. 11, 2000) ................. 9, 10

151 CONG. REC. No. 104 (July 27, 2005) .............. 10, 11

2006 Crime in the United States: Expanded

Homicide Data Table 7, FBI: UCR ........................ 14

2019 Crime in the United States – Expanded

Homicide Data Table 8, FBI: UCR ........................ 14

2019 Section 655 Report 23, U.S. DEP’T OF STATE,

Apr. 23, 2020 .......................................................... 19

Administrative Record, Nat’l Shooting Sports

Found. v. Melson, No. 1:11-cv-01401 (D.D.C.

Sep. 12, 2011), ECF No. 22-4 ................................. 18

Agreement Between Smith & Wesson and the

Departments of the Treasury and Housing and

Urban Development, Local Governments and

States, U.S. DEPARTMENT OF HOUSING AND

DEVELOPMENT, archived Dec. 13, 2009 .................... 9

v

Aguilar V., Rubén & Castañeda, Jorge G.,

EL NARCO: LA GUERRA FALLIDA (2009) .................. 18

Allen, Mike, Colt’s to Curtail Sale of Handguns,

N.Y. TIMES, Oct. 11, 1999......................................... 8

At Mexico’s Lone Gun Shop, Army Oversees Sales,

NPR, June 24, 2009................................................ 17

Barrett, Paul, Lawsuits Trigger Gun Firms’

Bankruptcy, WALL ST. J., Sept. 13, 1999 ................. 8

Boyer, Peter, Big Guns, NEW YORKER,

May 17, 1999 ............................................................ 7

Butterfield, Fox, Lawsuits Lead Gun Maker To

File for Bankruptcy, N.Y. TIMES, June 24, 1999 ..... 8

Crime Gun Trace Analysis Report: The Illegal

Youth Firearms Market in Jersey City, BUREAU

OF ALCOHOL, TOBACCO AND FIREARMS (1999) ........ 18

Edmondson, Aimee, IN SULLIVAN’S

SHADOW: THE USE AND ABUSE OF

LIBEL LAW ARISING FROM THE

CIVIL RIGHTS MOVEMENT (2019) .... 23, 24, 25, 26, 28

Firearms Trafficking: U.S. Efforts to Combat

Arms Trafficking to Mexico Face Planning

and Coordination Challenges, U.S. GOV’T

ACCOUNTABILITY OFFICE (2009) ............................. 17

Global Study on Homicide, UNITED NATIONS

OFFICE ON DRUGS AND CRIME (2011)...................... 13

Goodman, Colby, Update on U.S. Firearms

Trafficking to Mexico Report, WILSON CTR.

(2011) ...................................................................... 16

Gore, D’Angelo, Counting Mexico’s Guns,

FACTCHECK.ORG, Apr. 17, 2009 ............................. 15

vi

Hall, Grover, State Finds Formidable Legal Club

to Swing at Out-of-State Press, MONTGOMERY

ADVERT., May 22, 1960 .......................................... 26

Hall, Kermit L. & Urofsky, Melvin I.,

NEW YORK TIMES V. SULLIVAN (2011)............... 26, 27

Jeunesse, William La & Lott, Maxim,

The Myth of 90 Percent: Only a Small

Fraction of Guns in Mexico Come From

U.S., FOX NEWS, Apr. 2, 2009 .................... 15, 18, 19

Johnson, Nicholas, et al., FIREARMS LAW AND THE

SECOND AMENDMENT (3d ed. 2022) ........................ 23

Kloppe-Santamaria, Gema, Behind

Mexico’s Spiraling Violence, WILSON

CTR., Feb. 2018 ........................................... 20, 21, 22

Kopel, David B., Mexico’s Gun-Control Laws:

A Model for the United States?, 18 TEX. REV.

L. & POL. 27 (2013) ............................................. 4, 19

Kopel, David B. & Gardner, Richard E., The

Sullivan Principles: Protecting the Second

Amendment from Civil Abuse, 19 SETON

HALL LEGIS. J. 737 (1995) ........................................ 6

Lewis, Anthony, MAKE NO LAW: THE SULLIVAN

CASE AND THE FIRST AMENDMENT (1992) ......... 26, 27

Llana, Sara Miller, Escalating drug war grips

Mexico, CHRISTIAN SCIENCE MONITOR,

May 23, 2007 .......................................................... 20

Mérida Initiative for Mexico and Central America:

Funding and Policy Issues, CONG. RSCH. SERV.,

Apr. 19, 2010 .......................................................... 20

vii

Mexico 2022 Human Rights Report, BUREAU OF

DEMOCRACY, HUMAN RIGHTS, AND LABOR (2023) ... 22

Mexico President Calderon Address to Joint

Meeting of Congress, C-SPAN, May 20, 2010........ 14

Musante, Fred, After Tobacco, Handgun Lawsuits,

N.Y. TIMES, Jan. 31, 1999 ........................................ 7

Olson, Walter, Plaintiffs Lawyers Take Aim at

Democracy, WALL ST. J., Mar. 21, 2000 ................... 7

Olson, Walter, THE RULE OF LAWYERS (2003) ........... 10

Parra, Luz Paula, Why Has There Been Such an

Increase in Homicides in 2017?, WILSON CTR.,

Feb. 2018 ................................................................ 21

Ramirez, Gabriela Capó, Why did homicides

increase so much in 2017? What should the

Mexican government do about it?, WILSON

CTR., Feb. 2018 ....................................................... 21

Salisbury, Harrison, Fear and Terror Grip

Birmingham, N.Y. TIMES, Apr. 8, 1960 ................. 25

Smolla, Rodney, SUING THE PRESS (1986) ................. 26

Stewart, Scott, Mexico’s Gun Supply and the

90 Percent Myth, STRATFOR, Feb. 10, 2011 ..... 16, 17

The HUD Gun Suit, WASH. POST, Dec. 17, 1999 ........ 7

Tobar, Hector, A Cartel Army’s War Within, L.A.

TIMES, May 20, 2007 .............................................. 19

Villanueva, Ernesto, EL DERECHO DE ARMARSE:

LO QUE TODO MEXICANO DEBE SABER SOBRE LA

POSESIÓN Y PORTACIÓN LEGALES DE ARMAS DE

FUEGO (2017) .......................................................... 23

viii

Villanueva, Ernesto & Valenzuela, Karla,

SEGURIDAD, ARMAS DE FUEGO Y

TRANSPARENCIA: MITO Y REALIDAD SOBRE EL

DERECHO DE POSESIÓN Y PORTACIÓN DE ARMAS

DE FUEGO EN MÉXICO (2012) ................................... 23

Wallace, David J., MASSIVE RESISTANCE AND

MEDIA SUPPRESSION: THE SEGREGATIONIST

RESPONSE TO THE DISSENT DURING THE

CIVIL RIGHTS MOVEMENT (2013) .... 23, 24, 25, 26, 28

Walsh, Sharon, Gun Industry Views Pact as

Threat to Its Unity, WASH. POST, Mar. 18, 2000 ..... 8

Weisman, Jonathan, Gun maker, U.S. reach

agreement, BALT. SUN, Mar. 18, 2000 ...................... 9

1

INTEREST OF AMICI CURIAE1

The National Rifle Association of America

(NRA) is America’s oldest civil rights organization and

America’s foremost defender of Second Amendment

rights. It was founded in 1871 by Union generals who,

based on their Civil War experiences, sought to

promote firearms marksmanship and expertise

amongst the citizenry. The NRA has approximately

4.2 million members, and its programs reach millions

more.

Founded in 1985 on the eternal truths of the

Declaration of Independence, the Independence

Institute is a 501(c)(3) public policy research

organization based in Colorado. The briefs and

scholarship of Research Director David Kopel have

been cited in seven opinions of this Court, including

Bruen, McDonald (under the name of lead amicus Int’l

Law Enforcement Educators & Trainers Association

(ILEETA)), and Heller (same), and in over one

hundred opinions of lower courts.

Amici are interested in this case because the

decision below will enable abusive litigation that

devastates the firearms industry—and consequently

the right to keep and bear arms.

————♦————

1 Counsel for all parties received timely notice of amici’s

intent to file this brief. No counsel for any party authored this

brief in any part. Only amici funded its preparation or

submission.

2

SUMMARY OF ARGUMENT

Mexico has extinguished its constitutional arms

right and now seeks to extinguish America’s. To that

end, Mexico aims to destroy the American firearms

industry financially.

Mexico seeks to bankrupt the American firearms

industry by holding lawful firearms manufacturers

liable for violence committed by Mexican drug cartels

in Mexico—despite alleging no affirmative misconduct

by the manufacturers, intent of the manufacturers to

facilitate the violence, or concrete nexus between the

manufacturers and the cartels. If Mexico can overcome

a motion to dismiss on such a weak foundation, the

proliferation of meritless Mexico-style cases could

destroy the firearms industry solely through litigation

costs.

In the 1980s and 90s, anti-gun lobbies and some

governments weaponized baseless lawsuits to

bankrupt firearms manufacturers or coerce them to

self-impose gun controls. Defending against the suits

bankrupted several manufacturers and drove others to

the brink. Congress halted the abusive litigation by

enacting the Protection of Lawful Commerce in Arms

Act (PLCAA), citing the threat that the suits posed to

the Second Amendment, Fourteenth Amendment,

separation of powers, and national security.

This case exemplifies why PLCAA was enacted.

Mexico seeks billions in damages and the imposition of

extensive gun controls in America while relying on

shoddy data and false allegations to exaggerate the

impact of Petitioners’ firearms on Mexican homicides.

3

The complaint alleges that Mexican homicides

increased due to Petitioners manufacturing “assault

weapons” after the 2004 sunset of the U.S. “assault

weapons” ban. In fact, Mexico’s homicide rate was

higher during the ban than after its expiration. And

more Mexican homicides were committed with

firearms during the ban than after its expiration.

Mexico’s claim that 70% to 90% of firearms seized

in Mexico are trafficked from the U.S. refers only to

firearms successfully traced by the ATF—a small,

skewed sample. Of the total crime guns seized in

Mexico, only a fraction conclusively come from the U.S.

And the average age of those firearms is 15 years,

indicating that many were stolen from their lawful

owners before becoming crime guns.

Mexico’s homicides increased not when the 2004

U.S. statute sunset, but when President Calderón

deployed 30,000 soldiers and federal police to battle

cartels, creating military confrontations and turf wars

among cartels. The Mexican military’s harsh domestic

law enforcement techniques, the government’s failure

to prosecute violent criminals, and the government’s

human rights violations have also fueled violence. The

Mexican government seeks to hold Petitioners

responsible for its own domestic failings.

This Court halted similar lawsuits threatening the

First Amendment in New York Times v. Sullivan.

Before and during the Civil Rights movement, abusive

tort actions were used to silence newspapers that

exposed abuses in the Jim Crow South. The black

press in the South had been targeted for decades and

could not afford to litigate. When the national media

began significant coverage of Southern civil rights

4

abuses, it too was targeted. This Court had to quell

such strike suits, starting with Sullivan. The Sullivan

petitioners asked much of this Court: the invention of

major restrictions on tort law. Petitioners here ask for

much less: the fair construction of a federal statute.

————♦————

ARGUMENT

I.

The

Mexican

government

seeks

to

extinguish the Second Amendment as it

extinguished the Mexican constitutional

arms right.

Mexico’s

constitution

guarantees:

“The

inhabitants of the United Mexican States have the

right to keep arms at home, for their protection and

legitimate defense[.]”2 Mexico’s federal firearms law

creates a permitting system for citizens to acquire and

own handguns, rifles, and shotguns.3 Yet Mexico’s

government boasts that “Mexico has one gun store in

2 The full text provides:

The inhabitants of the United Mexican States

have the right to keep arms at home, for their

protection and legitimate defense, with the exception

of those prohibited by the Federal Law and those

reserved for the exclusive use of the Army, Navy, Air

Force and National Guard. Federal Law will state the

cases, conditions, requirements and places where

inhabitants can be authorized to carry weapons.

MEX. CONST. art. 10.

3 The system is described in David Kopel, Mexico’s GunControl Laws: A Model for the United States?, 18 TEX. REV. L. &

POL. 27, 35-41 (2013). For a full English translation, see id. at 6595.

5

the entire nation and issues fewer than 50 gun permits

per year,” Pet.App.8a, defying the permitting statute

enacted by Mexico’s Congress and the Mexico

Constitution’s guarantee of “inhabitants[’]” “right to

keep arms at home.” The Mexican government now

aims to extinguish the American right.

Mexico seeks to bankrupt the American firearms

industry by holding American firearms manufacturers

liable for violence committed by Mexican drug cartels

in Mexico—despite alleging no affirmative misconduct

by the manufacturers, intent of the manufacturers to

facilitate the violence, or concrete nexus between the

manufacturers and the cartels. See Twitter, Inc. v.

Taamneh, 598 U.S. 471, 505 (2023) (“claims fall far

short of plausibly alleging that defendants aided and

abetted” criminal activity where there is no intent,

concrete nexus, or affirmative misconduct). If Mexico

can overcome a motion to dismiss on such a weak

foundation, the proliferation of meritless Mexico-style

cases could destroy the American firearms industry

solely through litigation costs.

This very tactic was weaponized by gun control

activists in the late 20th century. Congress halted the

abusive suits by enacting the Protection of Lawful

Commerce in Arms Act (PLCAA). But the decision

below would nullify PLCAA.

6

II.

This case epitomizes the type of abusive

lawsuit PLCAA was enacted to prohibit.

A. Similar abusive suits were brought

against firearms manufacturers in the

1980s and 90s.

Frustrated by insufficient progress in legislatures,

gun control advocates in the 1980s brought product

liability suits against firearms manufacturers and

retailers. See David Kopel & Richard Gardner, The

Sullivan Principles: Protecting the Second Amendment

from Civil Abuse, 19 SETON HALL LEGIS. J. 737, 750

n.43 (1995) (listing 26 cases from 1983 to 1990, plus

one from 1973). Guns well-suited for self-defense were

said to be “defective” because criminals also used

them. Handgun manufacture was alleged to be

“ultrahazardous activity” like blasting with dynamite.

As one court observed, “the plaintiff’s attorneys simply

want[ed] to eliminate handguns.” Patterson v. Rohm

Gesellschaft, 608 F. Supp. 1206, 1212 (N.D. Tex. 1985).

Although plaintiffs prevailed only once,4 every case

generated attorney fees and a threat of financial doom

for defendants.

In the 1990s, suits against firearms businesses

were based on even more inventive grounds: public

nuisance, recovery of government medical expenses for

crime victims, unfair trade practices, deceptive

advertising, and so on. Starting in 1998, a coordinated

series of such lawsuits were filed by dozens of local

governments. Secretary of Housing and Urban

4 Kelley v. R.G. Indus., Inc., 304 Md. 124 (1985). The novel

legal theory was later overturned by statute. 1988 Md. Laws

3489-90.

7

Development Andrew Cuomo organized federally

funded housing authorities to bring additional suits.

The HUD Gun Suit, WASH. POST, Dec. 17, 1999. Filed

in as many jurisdictions as possible and designed to

resist consolidation, these suits intended to cause

“death by a thousand cuts.” Walter Olson, Plaintiffs

Lawyers Take Aim at Democracy, WALL ST. J., Mar. 21,

2000 (quoting Cuomo).

Like this case, the lawsuits sought to bankrupt

firearms manufacturers, or at least coerce them into

imposing gun controls that legislatures would not.

Bridgeport, Connecticut, mayor Joseph Ganim

described his lawsuit as “creating law with litigation.”

Fred Musante, After Tobacco, Handgun Lawsuits,

N.Y. TIMES, Jan. 31, 1999.5 “The Bridgeport suit

named 12 American firearms manufacturers, three

handgun trade associations, and a dozen southwestern

Connecticut gun dealers, and asked for damages in

excess of $100 million.” Id. (quotation marks omitted).

“If twenty cities” bring such suits, a reporter

noted, “defending against them, according to some

estimates, could cost the gun manufacturers as much

as a million dollars a day.” Peter Boyer, Big Guns, NEW

YORKER, May 17, 1999.6 Plaintiffs’ attorney John

Coale aimed for “critical mass…where the costs alone

of defending these suits are going to eat up the gun

companies.” Fox Butterfield, Lawsuits Lead Gun

Maker To File for Bankruptcy, N.Y. TIMES, June 24,

5 https://www.nytimes.com/1999/01/31/nyregion/after-

tobacco-handgun-lawsuits.html.

6 https://www.newyorker.com/magazine/1999/05/17/big-

guns.

8

1999.7 As Coale boasted, “the legal fees alone are

enough to bankrupt the industry[.]” Sharon Walsh,

Gun Industry Views Pact as Threat to Its Unity, WASH.

POST, Mar. 18, 2000.8

Some manufacturers indeed went bankrupt,

including Sundance Industries, Lorcin Engineering,

and Davis Industries. Paul Barrett, Lawsuits Trigger

Gun Firms’ Bankruptcy, WALL ST. J., Sept. 13, 1999.

Davis Industries was “one of the 10 largest makers of

handguns.” Butterfield, supra.

Venerable manufacturers were driven to the

brink. Colt’s Manufacturing Company stopped

producing handguns for the public. Facing “28

lawsuits from cities and counties hoping to punish gun

makers….the company could no longer get loans to

finance manufacturing because the lawsuits ‘could be

worth zero, or a trillion dollars.’” Mike Allen, Colt’s to

Curtail Sale of Handguns, N.Y. TIMES, Oct. 11, 1999.9

Then British-owned, Smith & Wesson (S&W) was

ordered to accept Cuomo’s demands in exchange for

immunity from some of the litigation. See Agreement

Between Smith & Wesson and the Departments of the

Treasury and Housing and Urban Development, Local

Governments and States, U.S. DEPARTMENT OF

7 https://www.nytimes.com/1999/06/24/us/lawsuits-leadgun-maker-to-file-for-bankruptcy.html#:~:text=''If%20New%20Y

ork%20comes%20into,other%20cities%20that%20have%20sued.

8 https://www.washingtonpost.com/archive/politics/2000/03/

18/gun-industry-views-pact-as-threat-to-its-unity/b18b920f-afdf44d1-a252-68b12863a032/.

9 https://www.nytimes.com/1999/10/11/nyregion/colt-s-tocurtail-sale-of-handguns.html.

9

HOUSING AND DEVELOPMENT, archived Dec. 13, 2009

(summary).10 These demands included some of the

same gun controls that Mexico seeks to impose

through this case. For example, S&W was ordered to

“not sell large capacity magazines or semiautomatic

assault weapons,” restrict “[m]ultiple handgun sales,”

add “[s]econd ‘hidden’ serial numbers” on handguns,

impose extra restrictions to prevent “straw

purchasers,” and develop “Smart Gun” technology.

Compare id., with Pet.App.39a-40a, 83a-84a, 131a; see

also Pet.App.134a.

“Smith & Wesson made it clear…that the company

was driven to the agreement by the lawsuits.”

Jonathan Weisman, Gun maker, U.S. reach

agreement, BALT. SUN, Mar. 18, 2000.

“[T]he litigants vowed to press on until all the

manufacturers joined”—indeed, “to get more

aggressive.” Id. Alex Panelas, mayor of Miami-Dade

County, Florida, warned that the S&W deal would be

“‘a floor, not a ceiling’ for any other gun maker that

wants to sign on.” Id.

No other company joined. Glock came closest. As it

wavered, New York Attorney General Eliot Spitzer

warned a Glock executive: “if you do not sign, your

bankruptcy lawyers will be knocking at your door.” 146

CONG. REC. No. 45, H2017 (Apr. 11, 2000). Spitzer and

Connecticut Attorney General Richard Blumenthal

announced they would sue other manufacturers for

shunning S&W—for instance, by no longer sharing

joint legal defense with S&W. Walter Olson, THE RULE

10 https://archives.hud.gov/news/2000/gunagree.html.

10

OF LAWYERS 127 (2003). This would have been “the

first antitrust action in history aimed at punishing

smaller companies for not cooperating with the largest

company in the market in an agreement restraining

trade.” Id. Like Mexico, Blumenthal had no evidence

of illegal behavior; “the point was sheer intimidation.”

Id.

Ultimately, as Mexico laments, Pet.App.134a-35a,

the S&W consent decree never went into force. But the

lawsuits continued. Although most cases were

dismissed, litigation costs mounted.

B. Congress passed PLCAA to halt the

abusive lawsuits.

Representative Cliff Stearns denounced “the

government lawyers and private lawyers conspiring,

conspiring to coerce private industry into adopting

public policy changes through the threat of abusive

litigation. The option? Adopt our proposals or you will

go bankrupt.” 146 CONG. REC., at H2017. Stearns thus

cosponsored PLCAA. Pub. L. No. 109-92, 119 Stat.

2095 (2005) (codified at 15 U.S.C. §§7901-03).

According to PLCAA cosponsor Senator Max

Baucus, PLCAA was “intended to protect law-abiding

members of the firearms industry” from suits “that are

only intended to regulate the industry or harass the

industry or put it out of business.” 151 CONG. REC. No.

104, S9107 (July 27, 2005). Senator Thomas Coburn

called PLCAA necessary “to put a stop to the

unmeritorious litigation that threatens to bankrupt a

vital industry in this country.” Id. at S9059. The suits,

he recognized, were designed “to constrict the right to

11

bear arms and attack the Bill of Rights and attack the

Constitution.” Id.

Senator Jeff Sessions, acknowledging that “the

ultimate goal of these suits” was “the elimination of

th[e] arms industry,” noted that by the time PLCAA

was enacted in 2005, “33 State legislatures have acted

to block similar lawsuits…. However, it only takes one

lawsuit in one State to bankrupt the entire industry,

making all those State laws inconsequential. That is

why it is essential that we pass Federal legislation.”

Id. at S9063.

The attempt to bankrupt the gun industry via

litigation continues to have national security

implications. The Department of Defense “strongly

support[ed]” PLCAA to “safeguard our national

security by limiting unnecessary lawsuits against an

industry that plays a critical role in meeting the

procurement needs of our men and women in uniform.”

151 CONG. REC., at S9395.

The bipartisan filibuster-proof majority enacting

PLCAA found that imposing liability on the firearms

industry for third-party crimes violates the Second

Amendment and “the rights, privileges, and

immunities

guaranteed”

by

the

Fourteenth

Amendment. 15 U.S.C. §7901(a)(6),(7). Similarly, “The

liability actions…attempt to use the judicial branch to

circumvent

the

Legislative

branch

of

government…thereby threatening the Separation of

Powers doctrine.” Id. §7901(a)(8).

PLCAA is a critical statute, and its curtailment

warrants this Court’s review.

12

III. Mexico’s attempt to scapegoat lawful

American companies for its own failures

demonstrates the need for PLCAA.

This case exemplifies why PLCAA was enacted.

Mexico seeks billions of dollars in damages and the

imposition of extensive gun controls in America while

relying on shoddy data and false allegations to

exaggerate the impact of Petitioners’ firearms on

Mexican homicides.

A. Mexico’s homicide rates were higher

during the “assault weapons” ban than

after its expiration.

Mexico argues that Petitioners “exploited” the

September 2004 sunset of the federal ban on so-called

“assault weapons” “to vastly increase production,

particularly of the military-style assault weapons

favored by the drug cartels.” Pet.App.10a.

Consequently, Mexico argues, Mexican homicides

“increased dramatically beginning in 2004 exactly

contemporaneously with [Petitioners’] increased

production, distribution, and marketing of their

military-grade weapons.” Id. In fact, Mexico’s

homicide rate was lower during each of the first three

years after the ban’s expiration (2005-2007) than

during any year in which the ban was in effect (1995-

13

2003).11 Global Study on Homicide, UNITED NATIONS

OFFICE ON DRUGS AND CRIME 107 (2011).12

Mexico asserts, “The increased percentage of

homicides by gun was contemporaneous with the

increased gun production in the U.S. beginning in

2005 with the expiration of the U.S. assault-weapons

ban.” Pet.App.162a. Rather, from 1995-2010, the year

with the highest percentage of Mexican homicides by

gun was 1999 (60.1%), when the “assault weapons”

ban was in full force. Global Study on Homicide, at

115. The only post-ban years that topped 1998 (46.2%)

were 2009 (54.6%) and 2010 (54.9%)—5 and 6 years

after the ban’s expiration.

If Petitioners’ firearms cause an increase in

homicides, then the U.S. should have experienced a

homicide increase after the “assault weapons” ban’s

expiration. It did not. The U.S. homicide rate in the six

years following the ban (2005-2010) never exceeded

the rate from the last full year that the ban was in

effect (2003). Id. at 107. The four highest homicide

rates from 1995-2010 came during years that the ban

was in effect. Id. The lowest rate was in 2010. Id. As

for murders perpetrated with all rifles (not only

“assault rifles”), there were 488 in 2002 and 392 in

2003—the last two full years of the ban—compared to

445 in 2005 and 436 in 2006. 2006 Crime in the United

11 Because the ban took effect on September 13, 1994, and

expired on September 13, 2004, both 1994 and 2004 are omitted

from this analysis.

12 https://www.unodc.org/documents/data-and-analysis/stati

stics/Homicide/Globa_study_on_homicide_2011_web.pdf.

14

States: Expanded Homicide Data Table 7, FBI: UCR.13

Over the years, while the number of “assault weapons”

in America increased, the number of murders

committed with rifles declined. Americans own

approximately 28.1 million so-called “assault

weapons” today;14 in the five most recent years for

which data are available, the number of murders

committed with rifles were 215 (2015), 300 (2016), 389

(2017), 305 (2018), and 364 (2019). FBI: Uniform

Crime Reports, 2019 Crime in the United States –

Expanded Homicide Data Table 8.15 Neither the

proliferation of “assault weapons” nor Petitioners’

marketing caused an increase in U.S. homicides.

B. Few Mexican crime guns are determined

to have come from America.

Mexico claims that “Almost all guns recovered at

crime scenes in Mexico—70% to 90% of them—were

trafficked from the U.S.” Pet.App.7a. Likewise, former

Mexican President Felipe Calderón told Congress that

“more than 80 percent of [seized firearms] we have

been able to trace came from the United States.”

Mexico President Calderon Address to Joint Meeting of

Congress, C-SPAN, May 20, 2010, at 24:54.16 Many

U.S. politicians, gun control organizations, and media

13 https://ucr.fbi.gov/crime-in-the-u.s/2006.

14 NSSF Releases Most Recent Firearm Production Figures,

NSSF, Jan. 11, 2024, https://www.nssf.org/articles/nssf-releasesmost-recent-firearm-production-figures-2024/.

15 https://ucr.fbi.gov/crime-in-the-u.s/2019/crime-in-the-u.s.-

2019/tables/expanded-homicide-data-table-8.xls.

16 https://www.c-span.org/video/?293616-2/mexico-presidentcalderon-address-joint-meeting-congress.

15

have claimed that around 90% of Mexican crime guns

come from the U.S. See, e.g., William La Jeunesse &

Maxim Lott, The Myth of 90 Percent: Only a Small

Fraction of Guns in Mexico Come From U.S., FOX

NEWS, Apr. 2, 2009;17 D’Angelo Gore, Counting

Mexico’s Guns, FACTCHECK.ORG, Apr. 17, 2009.18 The

claims are misleading. They are based on trace data

from the Bureau of Alcohol, Tobacco, Firearms and

Explosives (ATF). While traces of individual firearms

are accurate, traces as a whole do not provide an

accurate picture of how criminals obtain firearms.

Every ATF tracing report includes the following

congressionally mandated disclaimer:

Firearms selected for tracing are not

chosen for purposes of determining which

types, makes or models of firearms are used

for illicit purposes. The firearms selected do

not constitute a random sample and should

not be considered representative of the larger

universe of all firearms used by criminals, or

any subset of that universe. Firearms are

normally traced to the first retail seller, and

sources reported for firearms traced do not

necessarily represent the sources or methods

by which firearms in general are acquired for

use in crime.19

17 https://perma.cc/0LCWsseGAdV.

18 https://www.factcheck.org/2009/04/counting-mexicos-

guns.

19 Consolidated Appropriations Act of 2008, 18 U.S.C. §923;

Pub. L. No. 110-161 §518.

16

As Mexico concedes, “traces reflect only a tiny

fraction of guns that are trafficked into Mexico.”

Pet.App.68a. Because it would be futile to trace

firearms that are clearly not from America, the

firearms submitted for tracing are only those likely

enough to be from America to justify submitting a

trace request.

Some seized firearms are traced several times. For

example, from 2007 to 2010, tens of thousands of

traces were duplicates, with trace requests sometimes

being submitted for the same firearm five times. Colby

Goodman, Update on U.S. Firearms Trafficking to

Mexico Report, WILSON CTR. 7 (2011).20

Additionally, a successful trace indicates only that

the firearm was manufactured in the U.S. It does not

show that the firearm was sold in the U.S. civilian

market. For example, a successfully traced firearm

might have been lawfully sold to Mexican police and

then stolen by or sold to a cartel member.

Moreover, the “70% to 90%” figure is based on

successful traces only. It “relates to the number of

weapons submitted by the Mexican government to the

ATF that could be successfully traced and not from the

total number of weapons seized by Mexican

authorities or even from the total number of weapons

submitted to the ATF for tracing.” Scott Stewart,

Mexico’s Gun Supply and the 90 Percent Myth,

STRATFOR, Feb. 10, 2011.21

20 https://www.wilsoncenter.org/sites/default/files/media/doc

uments/publication/update_us_firearms_trafficking_to_mex.pdf.

21 https://perma.cc/0RhQPNX9SiV.

17

An analysis of trace data from 2008—which led to

the claim that 87% of Mexican crime guns originate in

the U.S., see, e.g., At Mexico’s Lone Gun Shop, Army

Oversees Sales, NPR, June 24, 200922—illustrates the

uselessness of trace data for determining how many

Mexican crime guns come from America. Of the 30,000

total crime guns seized by Mexican officials, only 7,200

were submitted for tracing. Of those 7,200, only 4,000

were successfully traced. Of those 4,000 successful

traces, 3,480 were positively traced to the U.S. So

while 3,480 of 4,000 (87%) successfully traced firearms

came from the U.S., “the 3,480 guns positively traced

to the United States equals less than 12 percent of the

total arms seized in Mexico in 2008 and less than 48

percent of all those submitted by the Mexican

government to the ATF for tracing. This means that

almost 90 percent of the guns seized in Mexico in 2008

were not traced back to the United States.” Stewart,

supra.

The U.S. Government Accountability Office

concluded,

“the

87

percent

statistic

is

misleading…Numerous problems with the data

collection and sample population render this assertion

as unreliable.” Firearms Trafficking: U.S. Efforts to

Combat Arms Trafficking to Mexico Face Planning and

Coordination Challenges, U.S. GOV’T ACCOUNTABILITY

OFFICE 69 (2009).23

More accurately, Jorge Castañeda, a former

Foreign Minister of Mexico, and Rubén Aguilar, a

former Press Secretary for the President of Mexico,

22 https://www.npr.org/transcripts/105848207.

23 https://www.gao.gov/assets/gao-09-709.pdf.

18

estimate that only 18% of Mexican crime guns can be

conclusively determined to have come from the United

States. Rubén Aguilar & Jorge Castañeda, EL NARCO:

LA GUERRA FALLIDA 68 (2009).

Significantly, the average age of successfully

traced American firearms in Mexico is 15 years.

Administrative Record at 0222, Nat’l Shooting Sports

Found. v. Melson, No. 1:11-cv-01401 (D.D.C. Sep. 12,

2011), ECF No. 22-4 (ATF report identifying average

time-to-crime rate for U.S.-sourced firearms recovered

and traced in Mexico between December 1, 2006, and

August 31, 2010). Under the “time-to-crime” theory,

the shorter the “time-to-crime,” the greater the

probability that the gun was originally sold to someone

acting on behalf of a criminal. The longer the “time-tocrime,” the greater the probability that the gun was

stolen from its lawful owner and sold into the black

market. See Crime Gun Trace Analysis Report: The

Illegal Youth Firearms Market in Jersey City, BUREAU

OF ALCOHOL, TOBACCO AND FIREARMS 38 (1999).24 The

15-year average age for traced firearms indicates that

most were lawfully owned, stolen, and then sold into

the black market.

C. Mexican criminals obtain guns from

around the world.

Mexico’s black market is “a virtual arms bazaar,

with fragmentation grenades from South Korea, AK47s from China, and shoulder-fired rocket launchers

from Spain, Israel and former Soviet bloc

manufacturers.” Jeunesse & Lott, supra. Many

24 https://www.atf.gov/file/57291/download.

19

firearms come from “Russian crime organizations,”

who “are actively trafficking drugs and arms in

Mexico.” Id. “Testifying before the U.S. House

Subcommittee on Border, Maritime, and Global

Counterterrorism on July 16, 2009, ATF stated that

the grenades and other military-grade weaponry were

coming into Mexico via the southern border with

Guatemala.” Kopel, Mexico’s Gun-Control Laws, at 53.

In “the late 1990s, the Revolutionary Armed Forces of

Colombia established a clandestine arms smuggling

and drug trafficking partnership with the Tijuana

cartel[.]” Jeunesse & Lott, supra.

Deserters from the Mexican military are another

source of American- and foreign-made crime guns. The

U.S. sells large quantities of firearms to Mexican

governments. See 2019 Section 655 Report 23, U.S.

DEP’T OF STATE, Apr. 23, 2020.25 In the Mexican army,

“one in eight soldiers deserts every year.” Hector

Tobar, A Cartel Army’s War Within, L.A. TIMES, May

20, 2007.26 “Many [take] their weapons with them,”

Jeunesse & Lott, supra, finding higher-paying work

with cartels—for example, the Zetas, “Mexico’s first

drug cartel Army,” founded by Mexican Special Forces

deserters, Tobar, supra.

D. Mexico’s homicide increase is the result of

the Mexican government’s own failures.

As explained above, “homicides in Mexico” did not

“increase[] dramatically beginning in 2004” with the

25 Available at https://www.pmddtc.state.gov/ddtc_public/dd

tc_public?id=ddtc_public_portal_news_and_events&cat=Report.

26 http://articles.latimes.com/2007/may/20/world/fg-zetas20.

20

expiration of the “assault weapons” ban. Pet.App.10a.

Rather, homicides increased dramatically after

President Calderón took office in December 2006 and

deployed 30,000 soldiers and federal police to battle

drug cartels. Sara Llana, Escalating drug war grips

Mexico, CHRISTIAN SCIENCE MONITOR, May 23, 2007.27

As a U.S. Congressional Research Service report

explained, “the government’s crackdown, as well as

turf wars among rival [cartels], has fueled an

escalation in violence throughout the country,

including states along the U.S.-Mexico border.”

Mérida Initiative for Mexico and Central America:

Funding and Policy Issues, CONG. RES. SERV., Apr. 19,

2010.28 The report found “a 126% increase” in drug

trafficking-related murders from 2007 to 2008, at least

another 27% increase in 2009, and that “drug

trafficking-related violence…escalated even further”

in 2010. Id. Dramatic increases in 2011 and 2017 were

likewise “attributed” to the “violent confrontations

within and between Mexican criminal organizations”

that escalated after Calderón’s offensive. Gema

Kloppe-Santamaria, Behind Mexico’s Spiraling

Violence, WILSON CTR., Feb. 2018.29

Additionally, the Mexican military is partly

responsible for domestic law enforcement. Some

believe “the militarization of public security forces has

had the greatest impact on [the] increase in homicides.

27 https://www.csmonitor.com/2007/0523/p01s01woam.html.

28 https://crsreports.congress.gov/product/pdf/R/R40135.

29 https://www.wilsoncenter.org/sites/default/files/media/doc

uments/publication/behind_mexicos_spiraling_violence.pdf.

21

Assigning public security tasks to the armed forces has

contributed to rising lethality rates because these

security agents” are trained “to take out the enemy.”

Luz Parra, Why Has There Been Such an Increase in

Homicides in 2017?, WILSON CTR., Feb. 2018.30

Mexico’s failure to prosecute violent criminals has

also fostered violent crime: “the violence Mexico faces

today is the cumulative effect of the state’s clear

failures,” including “the state’s incapacity and

unwillingness to prevent, investigate, prosecute, and

punish criminal conduct.” Kloppe-Santamaria, supra.

Gabriela Capó Ramirez, executive director at the

Institute for Security and Democracy, determined that

the “main enabler” that drove “the continuous increase

in homicides in Mexico” was “the lack of judicial

accountability” that “has permeated Mexico for

decades and provides fertile ground where criminal

behaviour can flourish.” Gabriela Capó Ramirez, Why

did homicides increase so much in 2017? What should

the Mexican government do about it?, WILSON CTR.,

Feb. 2018.31 “Widespread impunity,” she asserted,

“basically represents a blank check and a perverse

incentive which encourages criminals to engage in

illicit activities (that in many cases result in

homicides).” Id.; see also Mexico 2022 Human Rights

Report, BUREAU OF DEMOCRACY, HUMAN RIGHTS, AND

30 https://www.wilsoncenter.org/publication/why-has-there-

been-such-increase-homicides-2017.

31 https://www.wilsoncenter.org/sites/default/files/media/doc

uments/publication/why_did_homicides_increase_so_much_in_2

017_what_should_the_mexican_government_do_about_it.pdf.

22

LABOR (2023)32 (“Impunity and extremely low rates of

prosecution remained a problem for all crimes,”

including for “government agents” who “were complicit

with international criminal gangs.”).

The Mexican government has also been accused of

inciting violent reactions from cartels by committing

human rights violations, including: “unlawful or

arbitrary killings by police, military, and other

governmental officials; forced disappearance by

government agents;…violence against journalists;

serious acts of government corruption[.]” Id.; see also

Kloppe-Santamaria, supra (“Military and police

personnel, in particular, have been accused of the

abduction of thousands of people over the course of the

last decade.”).

When Mexico’s homicide rate declined in recent

years, President Andrés Manuel López Obrador “said

the decline represented the results of his ‘hugs not

bullets’ policy of avoiding open confrontation with drug

cartels” and instead “addressing the root causes of

violence” by “funding training and scholarship

programs for youths.” Mexico’s homicide rate dropped

in 2022, but appears to flatline in 2023, official figures

show, ASSOCIATED PRESS, July 25, 2023.33

In short, Mexico’s homicide problem stems from a

culture of criminal impunity in the legal system, and a

culture of extra-legal killings by the military.

32 https://www.state.gov/wp-content/uploads/2023/02/41561

0_MEXICO-2022-HUMAN-RIGHTS-REPORT.pdf.

33 https://apnews.com/article/mexico-homicides-rateviolence-d0a9a83c3124b1f3ce0e8af6c9b8aa9f.

23

Because the Mexican government fails to protect

the Mexican people, Professor Ernesto Villanueva, of

National Autonomous University of Mexico (Mexico

City campus) argues that Mexicans would be safer if

their government obeyed the Mexican constitutional

right to arms. See Ernesto Villanueva, EL DERECHO DE

ARMARSE: LO QUE TODO MEXICANO DEBE SABER SOBRE LA

POSESIÓN Y PORTACIÓN LEGALES DE ARMAS DE FUEGO

(2017); Ernesto Villanueva & Karla Valenzuela,

SEGURIDAD, ARMAS DE FUEGO Y TRANSPARENCIA: MITO Y

REALIDAD SOBRE EL DERECHO DE POSESIÓN Y PORTACIÓN

DE ARMAS DE FUEGO EN MÉXICO (2012).34

IV. This Court decided N.Y. Times v. Sullivan to

halt abusive suits targeting the First

Amendment.

Under Jim Crow, mainstream press rarely

published photographs of black people, except in crime

stories. Black concerns and aspirations got little

attention. David Wallace, MASSIVE RESISTANCE AND

MEDIA SUPPRESSION: THE SEGREGATIONIST RESPONSE

TO THE DISSENT DURING THE CIVIL RIGHTS MOVEMENT

43-44 (2013).

The black press, which typically operated on a

shoestring, filled the gap. When it exposed or criticized

abuses by the white power structure—including illegal

law enforcement violence—retribution sometimes

came as a libel suit. Aimee Edmondson, IN SULLIVAN’S

34 An English translation of an excerpt of the 2012 book is

available in Nicholas Johnson, et al., FIREARMS LAW AND THE

SECOND AMENDMENT 1761-66 (3d ed. 2022),

http://firearmsregulation.org/www/FRRP3d_Ch19.pdf#page=139.

24

SHADOW: THE USE AND ABUSE OF LIBEL LAW ARISING

FROM THE CIVIL RIGHTS MOVEMENT 17-71 (2019). Even

when newspaper articles were impeccably accurate,

there was a significant risk of enormous verdicts from

all-white juries. (Jurors were selected from voter rolls,

and blacks were often prevented from registering.)

Verdicts aside, the legal defense costs threatened

the

newspapers’

existence.

For

example,

notwithstanding Thurgood Marshall’s legal defense,

South Carolina’s Lighthouse and Informer was driven

out of business in 1954 by a criminal libel prosecution.

Edmondson, at 40-51. On advice of attorneys—

including Marshall—the Sumter Daily Item paid

$10,000 to settle a non-meritorious libel suit. Id. at 5761.

A 1954 suit against the Lexington Advertiser was

eventually decided in the defendant’s “favor, but not

before a costly legal battle.” Wallace, at 70-71, 92-94.

Another unsuccessful libel case against the Lexington

Advertiser was brought in 1963. The cumulative effect

of the libel suits, plus the loss of advertising due to

violent threats against advertisers, put the editor

$100,000 in debt. Id. at 95-101.

When the Oklahoma Black Dispatch asked the

national NAACP for help in a libel suit involving a

shooting by police, NAACP attorney Robert Carter

convinced the paper to settle, due to “the toll these libel

suits were taking on the bank account of the

organization.” Edmondson, at 128.

As civil rights became a national issue, “outsider”

national media coverage in the South increased. So did

libel suits. New York Times Co. v. Sullivan arose from

25

a full-page advertisement in the Times, entitled “Heed

Their Rising Voices.” 376 U.S. 254, 256 (1964). The

suit was one of many brought by civil rights opponents.

In 1960, the Times sent Pulitzer Prize winner

Harrison Salisbury to Birmingham. His facts were

accurate; his analysis compared Birmingham to

Johannesburg, and local police behavior to Nazi police.

Harrison Salisbury, Fear and Terror Grip

Birmingham, N.Y. TIMES, Apr. 8, 1960. In retaliation,

local officials sued Salisbury and the Times in multiple

cases, seeking millions in damages. Edmondson, at 99120.35

For the next year, the Times kept its reporters out

of Alabama, lest a reporter be served with process for

the Sullivan suit and eliminate the Times’ argument

that its small circulation in Alabama was insufficient

for state court jurisdiction. Wallace, at 183-84. The

Times killed two stories, one about Mississippi and

another about voting in Birmingham; although the

stories were accurate, the lawsuit risk was too great.

Id. at 186-87.

For coverage of the police-sanctioned mob assault

against Freedom Riders on May 14, 1961, and the

follow-up, the Times relied on CBS Television reports.

Edmondson, at 121. CBS was sued for that coverage,

and for a November 1961 story about how voting

registrars in Montgomery County, Alabama, impeded

black registration. Although the reporting was

accurate, CBS retracted both stories, apologized on

35 After Sullivan, the verdict based on the Salisbury article

was overturned. New York Times v. Connor, 165 F.2d 567 (5th

Cir. 1966).

26

air, fired the reporter (award-winning Howard Smith),

and settled the case for an undisclosed amount. Id.

120-25.

The Montgomery Advertiser hoped that “the recent

checkmating of the Times in Alabama will impose a

restraint upon other publications.” Grover Hall, State

Finds Formidable Legal Club to Swing at Out-of-State

Press, MONTGOMERY ADVERT., May 22, 1960.

Although the Times was wealthier than any

Southern black newspaper, “few people realized how

financially vulnerable the Times was in 1960.” Kermit

Hall & Melvin Urofsky, NEW YORK TIMES V. SULLIVAN

85 (2011). In the early 1960s, the paper “was barely

making a profit and likely would not have been able to

survive” the multi-million-dollar damages. Wallace, at

188; see also Anthony Lewis, MAKE NO LAW: THE

SULLIVAN CASE AND THE FIRST AMENDMENT 107 (1992).

According to the Times’ Managing Editor, the paper’s

bank accounts “were coming out ‘cleaned.’ This is an

expensive business.” Edmondson, at 2.

“No strategy for squelching the media’s portrayal

of conditions in the South…carried more potential for

success than the creative use of the law of libel.”

Rodney Smolla, SUING THE PRESS 43 (1986). As the

Washington Post’s executive editor observed, the

southern libel suits “enormously increase the liability

of the press for its defense against such suits in

communities where jurors may be hostile to them[.]”

Wallace, at 187. The ability to report would be

destroyed “if the costs of defending against bare

allegations of error threaten the survival of the

newspaper.” Id. at 188.

27

There were other Sullivan defendants. Four

prominent black Alabama ministers were also sued:

Ralph Abernathy, Fred Shuttlesworth, Joseph

Lowery, and Solomon Seay. New York Times Co. v.

Sullivan, 273 Ala. 656, 665 (1962); Hall, at 61-64. The

advertiser had listed them as endorsers without their

knowledge or consent. Hall, at 61-64. The jury issued

a half-million-dollar verdict against the ministers and

the Times. “[T]he jury apparently found the four men

guilty because of their civil rights work and not

because they had defamed L.B. Sullivan.” Id. at 69.36

When Sullivan was before this Court, more “huge

verdicts” were

lurking just around the corner for the Times

or any other newspaper or broadcaster which

might dare to criticize public officials. In fact,

briefs before us show that in Alabama there

are now pending eleven libel suits by local and

state officials against the Times seeking

$5,600,000, and five such suits against the

Columbia Broadcasting System seeking

$1,700,000. Moreover, this technique for

harassing and punishing a free press—now

that it has been shown to be possible—is by

no means limited to cases with racial

overtones; it can be used in other fields where

public feelings may make local as well as outof-state newspapers easy prey for libel verdict

seekers.

36 Besides intimidating ministers, suing the four prevented

federal removal on diversity grounds. Lewis, at 13-14.

28

Sullivan, 376 U.S. at 294-95 (Black, J., concurring).

According to the Southern Publishers Association, as

of 1964 there were 17 pending libel suits against the

media in southern courts, seeking total damages of

$238,000,000. Wallace, at 174-75. For example, the

Saturday Evening Post was being sued for coverage of

riots against integration of the University of

Mississippi. Curtis Pub. Co. v. Birdsong, 360 F.2d 344

(5th Cir. 1966) (reversing verdict for plaintiffs);

Edmondson, at 146-53.

After Sullivan, this Court’s action was still

necessary against libel abuse. See e.g., Henry v.

Collins, 380 U.S. 356 (1965) (reversing libel verdicts

for criticism of law enforcement misconduct);

Associated Press v. Walker, 388 U.S. 130 (1967)

(extending actual malice rule to public figures);

Edmondson, at 136-46, 153-62 (discussing Henry and

the many suits by Mississippi segregationist leader

Edwin Walker).

The circumstances leading to Sullivan were like

those prompting PLCAA: decades of abusive suits,

including litigation designed to coerce submission by

driving up defendants’ legal expenses. This Court

should grant certiorari here for the same reason it

granted certiorari in Sullivan.

————♦————

CONCLUSION

The petition for certiorari should be granted.

29

Respectfully submitted,

JOSEPH G.S. GREENLEE

Counsel of Record

ERIN M. ERHARDT

NATIONAL RIFLE ASSOCIATION

OF AMERICA – INSTITUTE FOR

LEGISLATIVE ACTION

11250 Waples Mill Rd.

Fairfax, VA 22030

(703) 267-1161

jgreenlee@nrahq.org

DAVID B. KOPEL

INDEPENDENCE INSTITUTE

727 E. 16th Ave.

Denver, CO 80203

(303) 279-6536

david@i2i.org

May 22, 2024

GEORGE A. MOCSARY

UNIVERSITY OF WYOMING

COLLEGE OF LAW

1000 E. University Ave.

Laramie, WY 82071

(307) 766-5262

gmocsary@uwyo.edu