Petition for Writ of Certiorari — Centerline Logistics Corporation, et al., Petitioners v. Inlandboatmen’s Union of the Pacific, et al.

NO. ________

In the

Supreme Court of the United States

CENTERLINE LOGISTICS CORPORATION, ET AL.,

Petitioners,

v.

INLANDBOATMEN’S UNION OF THE PACIFIC, ET AL.,

Respondents.

__________________________

On Petition for a Writ of Certiorari to the

California Supreme Court

PETITION FOR A WRIT OF CERTIORARI

Christopher L. Hilgenfeld

Counsel of Record

Daniel J. Spurgeon

DAVIS GRIMM PAYNE & MARRA

701 Fifth Avenue, Suite 3500

Seattle, WA 98104

(206) 447-0182

CHilgenfeld@davisgrimmpayne.com

June 24, 2025

SUPREME COURT PRESS

Counsel for Petitioners

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

QUESTIONS PRESENTED

This Court, in New Yorks Times Co. v. Sullivan1,

constitutionalized an actual malice standard for publicofficial defamation plaintiffs.2 This Court, in Linn

v. Plant Guard Workers,3 extended this innovation to

false and defamatory statements made during a labor

dispute. The Court then balanced the plaintiff’s right

under the Petition’s clause with the actual malice

standard.4

Compelled by this Court’s constitutional decisions

in Sullivan and Linn, states, like California, have

incorporated the actual malice standard into their

anti-SLAPP statutes. State courts are split over the

application of the actual malice standard’s clear and

convincing evidence burden to plaintiffs in anti-SLAPP

cases and whether it violates a plaintiff’s right to a

civil jury trial. These are the questions presented:

1. Whether this Court should overturn Sullivan’s

actual malice standard.

2. Whether the Seventh Amendment’s right to a

jury trial is incorporated against the States, and, if yes,

whether the application of the clear and convincing

actual malice standard at the early anti-SLAPP stage

of litigation violates a plaintiff’s right to a civil jury

trial.

1 376 U.S. 254 (1964).

2 Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749,

766 (1985) (White, J., concurring in judgment).

3 383 U.S. 53 (1966).

4 McDonald v. Smith, 472 U.S. 479 (1985).

ii

3. Does an interpretation of the anti-SLAPP

statute that allows for the dismissal of a defamation

claim without evaluating whether the plaintiff has

met the actual malice standard violate the plaintiff’s

First Amendment right to petition the government

through access to the courts?

4. Whether a state court violates a party’s

Fourteenth Amendment right to due process under

the United States Constitution when the state court

summarily extinguishes that party’s lawsuit without

considering that party’s evidence.

iii

PARTIES TO THE PROCEEDINGS

Petitioners and Plaintiffs-Appellants below

●

Centerline Logistics Corporation

●

Westoil Marine Services, Inc.

Respondents and Defendants-Respondents below

●

Inlandboatmen’s Union of the Pacific,

a labor organization

●

Cris Sogliuzzo, an individual and the marital

community thereof

Interested Party per Sup. Ct. R. 29.4

●

Attorney General of California

CORPORATE DISCLOSURE STATEMENT

Westoil Marine Services, Inc. is wholly owned by

Petitioner Centerline Logistics Corporation, which in

turn is wholly owned by Alimpik Tug & Barge Holdco 1,

LLC. No public company owns 10% or more of either

Petitioner.

iv

LIST OF PROCEEDINGS

Supreme Court of California

No. S289158

Centerline Logistics Corporation et al., Plaintiffs and

Appellants, v. Inlandboatmen’s Union of the Pacific

et al., Defendants and Respondents.

Order Denying Review: March 26, 2025

_________________

Court of Appeal of the State of California,

Second Appellate District

No. B325276

Centerline Logistics Corporation Et Al., Plaintiffs and

Appellants, v. Inlandboatmen’s Union of the Pacific

Et Al., Defendants and Respondents.

Opinion: December 26, 2024

Rehearing Denial: January 14, 2025

_________________

Superior Court for the State of California

County of Los Angeles

Case No. 21LBCV00633

Centerline Logistics Corporation, a Delaware

corporation, and Westoil Marine Services, Inc., a

California corporation, Plaintiffs, v. Inlandboatmen’s

Union of the Pacific, a labor organization, and Cris

Sogliuzzo, individually, and the marital community

composed thereof, Defendants.

Judgment: July 1, 2022

v

TABLE OF CONTENTS

Page

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

PARTIES TO THE PROCEEDINGS ........................ iii

CORPORATE DISCLOSURE STATEMENT ........... iii

LIST OF PROCEEDINGS ......................................... iv

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

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

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

JURISDICTION.......................................................... 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS ....................................................... 3

STATEMENT OF THE CASE .................................... 5

I.

Summary .......................................................... 5

II. Respondents Made and Published

Maliciously Defamatory Statements as

Part of a Labor Dispute. .................................. 8

A. The Lawsuit. ............................................... 9

B. Petitioners Raised These Federal

Questions at Each Available Stage. ......... 12

REASONS FOR GRANTING THE PETITION ....... 17

I.

Sullivan Was Wrong from the Start and

Ill-Suited to Address Defamation in the

Modern Day. ................................................... 18

A. The Pre-Sullivan Common Law. .............. 18

B. Sullivan Is Not Fit for the Modern Day. . 21

II. Anti-SLAPP Statutes Violate the Seventh

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

vi

TABLE OF CONTENTS – Continued

Page

A. The Seventh Amendment, Which

Protects a Right to a Civil Jury Trial

on Defamation Claims, Should Be

Incorporated. ............................................. 23

B. There Is a Split Among the State

Supreme Courts Regarding Whether

the Application of the Clear and

Convincing Evidence Standard in AntiSLAPP Cases Violates the Right to a

Civil Jury Trial. ........................................ 26

III. California’s Extension of the Litigation

Privilege to Labor Disputes and Other

Matters Outside of a Judicial Proceeding

Infringes Upon Litigants’ First Amendment

Right to Petition the Courts. ......................... 28

A. Prior to Prohibiting a Party’s Right to

Petition the Courts, the California

Courts Must Review Whether the

Actual Malice Standard Has Been Met. .. 30

B. In Reviewing a Party’s Right to

Petition, the California Courts

Improperly Made a Value-Based

Decision. .................................................... 31

C. California’s Interpretation That It May

Dismiss a Party’s Right to Petition the

Court, Alleging Actual Malice, Without

Reviewing the Plaintiff’s Evidence,

Creates a Split Among the State Courts... 34

D. Petitioner’s Right to Free Speech Was

Violated by Favoring One Group of

Speakers Over Another. ........................... 36

vii

TABLE OF CONTENTS – Continued

Page

IV. The California Courts Violated the

Petitioner’s Fourteenth Amendment

Rights to Due Process Under the United

States Constitution. ....................................... 37

CONCLUSION.......................................................... 39

viii

TABLE OF CONTENTS – Continued

Page

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Order Denying Petition for Review, Supreme

Court of California (March 26, 2025)................. 1a

Opinion, Court of Appeal of the State of California

(December 26, 2024) ........................................... 2a

Order Granting Defendants’ Special Motions to

Strike Plaintiffs’ Claims, Los Angeles County

Superior Court (July 1, 2022) ......................... 30a

Judgment Granting Anti-SLAPP Motion and

Awarding Attorney Fees, Los Angeles County

Superior Court (July 1, 2022) .......................... 33a

Order Granting Anti-SLAPP Motion and

Awarding Attorney Fees, Los Angeles County

Superior Court (June 10, 2022) ....................... 36a

REHEARING ORDER

Order Denying Petition for Rehearing,

Court of Appeal of the State of California

(January 14, 2025)............................................ 38a

STATUORY PROVISION

CCP § 425.16 - California Anti-SLAPP Code ........ 39a

ix

TABLE OF CONTENTS – Continued

Page

DOCUMENTS IN THE

CALIFORNIA SUPREME COURT

Appellants’ Petition for Review

(February 4, 2025) ............................................ 43a

Respondent Cris Sogliuzzo’s Answer to Petition

for Review (February 24, 2025) ....................... 80a

Respondent Inlandboatmen’s Union of the

Pacific’s Response to Petitioners Petition for

Review (February 24, 2025) ............................. 98a

Appellants’ Reply in Support of Petition for

Review (March 6, 2025) .................................. 118a

DOCUMENTS IN THE

CALIFORNIA COURT OF APPEALS

Appellants’ Opening Brief

(August 23, 2023) ........................................... 139a

Appellee Inlandboatmen’s Union of the Pacific’s

Responsive Brief (November 21, 2023) .......... 198a

Respondent Cris Sogliuzzo’s Brief

(January 12, 2024).......................................... 255a

Appellants’ Reply Brief

(March 5, 2024) ............................................... 306a

Appellants’ Petition for Rehearing

(January 9, 2025)............................................ 341a

x

TABLE OF CONTENTS – Continued

Page

DOCUMENTS IN THE

LOS ANGELES SUPERIOR COURT

Complaint

(December 1, 2021) ......................................... 369a

Defendant Inlandboatmen’s Union of the Pacific’s

Notice of Motion and Special Motion to Strike

Plaintiff’s Claims Under CCP § 425.16

(February 7, 2022) .......................................... 386a

Defendant Cris Sogliuzzo’s Notice of Motion and

Special Motion to Strike CCP § 425.16 and

Memorandum of Points and Authorities

(March 4, 2022) ............................................... 411a

Plaintiffs’ Response In Opposition to Defendants’

Special Motions to Strike Plaintiffs’ Claims

Under CCP § 425.16 (May 26, 2022) ............. 434a

Notice of Appeal

(November 23, 2022) ...................................... 461a

xi

TABLE OF AUTHORITIES

Page

CASES

TABLE OF AUTHORITIES

BE&K Constr. Co. v. NLRB,

536 U.S. 516, 122 S. Ct. 2390 (2002) ......... 14, 15,

..................................................................... 30, 34

Beauharnais v. Illinois,

343 U.S. 250 (1952) ........................................... 20

Berisha v. Lawson,

141 S. Ct. 2424 (2021) ................... 5, 6, 21, 22, 23

Bianchi v. Rylaarsdam,

334 F.3d 895 (9th Cir. 2003) ......................... 2, 13

Bill Johnson’s Restaurants, Inc. v. NLRB,

461 U.S. 731 (1983) ............. 14, 15, 29, 30, 31, 34

Boddie v. Connecticut,

401 U.S. 371 (1971) ....................................... 4, 38

Borough of Duryea v. Guarnieri,

564 U.S. 379 (2011) ........................................... 29

Carey v. Brown,

447 U.S. 455 (1980) ............................... 31, 32, 37

Chaplinsky v. State of New Hampshire,

315 U.S. 568 (1942) ........................................... 20

Chauffeurs, Teamsters & Helpers, Loc. No. 391

v. Terry, 494 U.S. 558 (1990) ............................ 24

Citizens United v. Federal Election Comm’n,

558 U.S. 310 (2010) ........................................... 37

City of Long Beach v. Bozek,

31 Cal.3d 527 (1982) .................................... 13, 15

Cox v. La.,

379 U.S. 536 (1965) ..................................... 33, 34

xii

TABLE OF AUTHORITIES – Continued

Page

Curtis Publ’g Co. v. Butts,

388 U.S. 130 (1967) ........................................... 21

Davis v. Cox,

351 P.3d 862 (Wash. 2015) ................................ 27

Dexter v. Spear,

7 F. Cas. 624 (CC RI 1825)................................ 18

Dun & Bradstreet, Inc. v. Greenmoss Builders,

Inc., 472 U.S. 749 (1985) ............................ i, 5, 18

Duracraft Corp. v. Holmes Prods. Corp.,

691 N.E.2d 935 (Mass. 1998) ............................ 35

Edward v. Ellis,

72 Cal. App. 5th 780 (2021) .............................. 27

Equilon Enterprises v. Consumer Cause, Inc.,

29 Cal. 4th 53 (Cal. 2002) ................................. 27

Gertz v. Robert Welch,

418 U.S. 323 (1974) ........................................... 22

Glacier NW v. Int’l Bhd. Of Teamsters Loc. Un.

174, 598 U.S. 771 (2023) ............................. 14, 15

Herbert v. Lando,

441 U.S. 153 (1979) ........................................... 18

Jacob v. City of New York,

315 U.S. 752 (1942) ........................................... 24

Klem v. Access Ins. Co.,

17 Cal App. 5th 595 (Cal. App. Ct. 2017) ......... 26

Leiendecker v. Asian Women United of Minn.,

895 N.W.2d 623 (Minn. 2017) ........................... 27

Linn v. Plant Guard Workers,

383 U.S. 53 (1966) ............ i, 5, 6, 7, 17, 21, 22, 31

xiii

TABLE OF AUTHORITIES – Continued

Page

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) ......................................... 5, 6

Lowery v. Euverard,

497 F.3d 584 (6th Cir. 2007) ............................. 31

Maytown Sand & Gavel, LLC v. Thurston

Cnty., 423 P.3d 223 (Wash. 2018) ..................... 27

McDonald v. City of Chicago, Ill.,

561 U.S. 742 (2010) ............................... 23, 24, 26

McDonald v. Smith,

472 U.S. 479 (1985) .... i, 13, 14, 18, 21, 29, 30, 31

McKee v. Cosby,

139 S. Ct. 675 (2019) ........................................... 6

Metromedia, Inc. v. City of San Diego,

453 U.S. 490 (1981) ..................................... 32, 33

Michigan v. Long,

463 U.S. 1032, 77 L. Ed. 2d 1201,

103 S. Ct. 3469 (1983) ....................................... 13

Morales v. Coastside Scavenger Co.,

167 Cal. App. 3d 731 (Cal. App. Ct. 1985) .......... 7

Nader v. Me. Democratic Party,

41 A.3d 551 (Maine 2012) ..................... 28, 34, 35

Near v. Minnesota ex rel. Olson,

283 U.S. 697 (1931) ........................................... 20

New Yorks Times Co. v. Sullivan,

376 U.S. 254 (1964) ..................... i, 5, 6, 7, 17, 18,

......................................................... 21, 22, 30, 32

Police Dep’t of Chicago v. Mosley,

408 U.S. 92 (1972) ................................. 31, 32, 34

xiv

TABLE OF AUTHORITIES – Continued

Page

Ramos v. Louisiana,

590 U.S. 83 (2020) ............................................. 24

Reader’s Digest Assn v. Superior Court,

37 Cal. 3d 244 (Cal. 1984) ................................... 7

Reed v. Town of Gilbert,

576 U.S. 155 (2015) ........................................... 37

Reed v. Town of Gilbert,

707 F.3d 1057 (9th Cir. 2013) ..................... 32, 36

Respublica v. Oswald,

1 Dall. 319 (Pa. 1788) ........................................ 20

Rosenberger v. Rector and Visitors of Univ. of

Va., 515 819 (1995) ........................................... 32

Timbs v. Indiana,

586 U.S. 146 (2019) ........................................... 24

Tinker v. Des Moines School Dist.,

393 U.S. 503 (1969) ........................................... 31

Turner Broad Sys. Inc. v. v. FCC,

512 U.S. 622 (1994) ........................................... 37

United Mine Workers v. Illinois Bar Ass’n,

389 U.S. 217 (1967) ........................................... 29

United States v. Cruikshank,

92 U.S. 542 (1876) ............................................. 29

Vargas v. City of Salinas,

200 Cal.App.4th 1331 (2011) ...................... 13, 15

Virginia v. Black,

538 U.S. 343 (2003) ........................................... 29

Washington v. Glucksberg,

521 U.S. 702 (1997) ........................................... 23

xv

TABLE OF AUTHORITIES – Continued

Page

Watson v. Memphis,

373 U.S. 526 (1963) ........................................... 33

Wynn v. AP,

542 P.3d 751 (Nev. 2024) .................................. 27

Ylst v. Nunnemaker,

501 U.S. 797 (1991) ........................................... 13

CONSTITUTIONAL PROVISIONS

Pa. Const. of 1776, art. XII ....................................... 20

U.S. Const. amend. I ........................... ii, 3, 4, 9, 13-15,

............................................... 17-19, 21, 28-32, 34

U.S. Const. amend. VII ......................... i, 3, 4, 6, 7, 17,

.......................................................... 23, 24, 26-28

U.S. Const. amend. VIII ........................................... 24

U.S. Const. amend. XIV ........ ii, 3, 4, 18, 23, 28, 34, 37

Wash. Const. art. 1, § 21........................................... 27

STATUTES

28 U.S.C. § 1257(a) ..................................................... 2

C.C.P. § 425.16 .......................................... 4, 14, 16, 28

JUDICIAL RULES

Sup. Ct. R. 14.1(b)(iii) ................................................. 2

xvi

TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES

Alexander Hamilton,

THE FEDERALIST NO. 83 ..................................... 25

Benjamin Plener Cover,

The First Amendment Right to a Remedy,

50 U. C. DAVIS L. REV. 1741 (2017) ............. 14, 15

Chief Justice John Roberts,

2019 Year-End Report on The Federal

Judiciary (2019) ................................................ 22

Elena Kagan,

A Libel Story: Sullivan Then and Now,

18 LAW & SOC’Y INQUIRY 197 (1993) ................... 6

F. Mott,

JEFFERSON AND THE PRESS (1943) .................... 19

Francis Newton Thorpe,

THE FEDERAL AND STATE CONSTITUTION,

COLONIAL CHARTERS, AND OTHER ORGANIC

LAWS (1909) ....................................................... 20

Gabriel R. Sanchez & Keesha Middlemass,

Misinformation is eroding the public’s

confidence in democracy, BROOKINGS (July

26, 2022), https://www.brookings.edu/

articles/misinformation-is-eroding-thepublics-confidence-in-democracy/ ..................... 23

J. Kent,

COMMENTARIES ON AMERICAN LAW (1826).......... 5

Jonathan Elliot,

THE DEBATES IN THE SEVERAL STATE

CONVENTIONS ON THE ADOPTION OF THE

FEDERAL CONSTITUTION, Vol. II (1836) ............ 19

xvii

TABLE OF AUTHORITIES – Continued

Page

Paul Horwitz,

The First Amendment’s Epistemological

Problem, 87 WASH. L. REV. 445 (2012) ............. 22

Reporters Committee for Freedom of the

Press,

Anti-SLAPP Legal Guide,

http://www.rcfp.org/anti-slapp-legal-guide ...... 27

Richard Henry Lee,

Letters of the Federal Farmer, PAMPHLETS

ON THE CONSTITUTION OF THE UNITED

STATES (Paul L. Ford ed., 1888) ........................ 25

U.S. Department of State,

Ratification of the Constitution by the

State of North Carolina; November 21,

1789, DOCUMENTARY HISTORY OF THE

CONSTITUTION, Vol. II (1894) ............................ 26

W. Blackstone,

COMMENTARIES ON THE LAWS OF

ENGLAND (1769) ................................................. 19

1

PETITION FOR A WRIT OF CERTIORARI

Centerline Logistics Corporation and Westoil

Marine Services, Inc. respectfully pray that this Court

grant a writ of certiorari to review the judgment of the

California Supreme Court which denied review on

March 26, 2025.

OPINIONS BELOW

This case arises from the following proceedings:

●

Centerline Logistics Corp. a Delaware corporation,

and Westoil Marine Services, Inc., a California

corporation, v. Inlandboatmen’s Union of the

Pacific, a labor organization, and Cris Sogliuzzo,

individually, and the marital community composed

thereof, Superior Court No. 21LBCV00633 (Cal.

Sup. Ct.) (order granting Defendants anti-SLAPP

motion to dismiss, filed on July 1, 2022). 2022

Cal. Super. LEXIS 52025. App.30a. Order

Granting Anti-SLAPP Motion and Awarding

Attorney Fees dated June 10, 2022. App.36a.

●

Centerline Logistics Corporation et al., v. Inlandboatmen’s Union of the Pacific et al., Appellate

Court No. B325276 (Cal. App. Ct.) (order affirming

trial court’s anti-SLAPP motion to dismiss, filed

on December 26, 2024). 2024 Cal. App. Unpub.

LEXIS 8212; 2024 LX 38518; 2024 WL 5231304.

App.2a.

2

●

Centerline Logistics Corporation et al., v. Inlandboatmen’s Union of the Pacific et al., Appellate

Court No. B325276 (Cal. App. Ct.) (January 14,

2025 order denying petition for a rehearing).

App.38a.

●

Centerline Logistics Corporation et al., v. Inlandboatmen’s Union of the Pacific et al., California

Supreme Court No. S289158 (Cal.) The review

was summarily denied on March 26, 2025. 2025

Cal. LEXIS 1563; 2025 LX 30575. App.1a.

There are no other proceedings in state or federal

trial or appellate courts, or in this Court, directly

related to this case within the meaning of this Court’s

Rule 14.1(b)(iii).

JURISDICTION

The California Court of Appeals issued an unpublished decision on December 26, 2024. App.2a. It

denied rehearing on January 14, 2025. App.38a. The

California Supreme Court denied review on March 26,

2025. App.1a. A presumption arises that the California

Supreme Court reviewed the merits of the case before

summarily denying the petition for review. Bianchi v.

Rylaarsdam, 334 F.3d 895, 904-905 (9th Cir. 2003)

(Fletcher, J., concurring). This Petition was filed less

than 90 days after the California Supreme Court’s

denial of review.

No request for an extension of time to petition

this Court was made nor required. This Court has

jurisdiction pursuant to 28 U.S.C. § 1257(a).

3

CONSTITUTIONAL AND

STATUTORY PROVISIONS

U.S. Const., amend. I

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech,

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

for a redress of grievances.

U.S. Const., amend. VII

In Suits at common law, where the value in

controversy shall exceed twenty dollars, the right

of trial by jury shall be preserved, and no fact

tried by a jury, shall be otherwise re-examined in

any Court of the United States, than according to

the rules of the common law.

U.S. Const., amend. XIV § 1

All persons born or naturalized in the United

States and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or

immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.

CCP § 425.16, California Anti-SLAPP Code is

reproduced at App.39a.

4

Petitioners contend that the First Amendment to

the United States Constitution, the Seventh Amendment to the United States Constitution, the Fourteenth

Amendment to the United States Constitution, and

California Code of Civil Procedure section 425.16

govern this dispute.

Our cases further establish that a statute or

a rule may be held constitutionally invalid as

applied when it operates to deprive an individual of a protected right although its general

validity as a measure enacted in the legitimate

exercise of state power is beyond question.

Thus, in cases involving religious freedom,

free speech or assembly, this Court has often

held that a valid statute was unconstitutionally applied in particular circumstances

because it interfered with an individual’s

exercise of those rights.

Boddie v. Connecticut, 401 U.S. 371, 379 (1971).

Petitioners do not contend that the statute is

facially unconstitutional. The statute, California Code

of Civil Procedure section 425.16, was applied to

Petitioners in an unconstitutional manner by the California judiciary. Petitioners have accordingly served

notice of this Petition on the California Attorney

General.

5

STATEMENT OF THE CASE

I.

Summary

The actual-malice standard is a relatively new

feature of libel law. It arose from New York Times Co.

v. Sullivan and was extended to labor disputes in Linn

v. Plant Guard Workers Local 113, 383 U.S. 53 (1966).

But as Justice White explained, Sullivan’s actual

malice standard “overturn[ed] 200 years of libel law,”

not because that law was wrong but because this

Court concluded the common law was inadequate.

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

472 U.S. 749, 766 (1985) (White, J., concurring in the

judgment).

Sullivan encourages individuals to libel first and

question never, promising them near-absolute immunity

should they do so. See Berisha v. Lawson, 141 S. Ct.

2424, 2428 (2021) (Gorsuch, J., dissenting from the

denial of certiorari) (explaining that the Sullivan

standard “has evolved . . . into an effective immunity

from liability,” creating a perverse incentive where

“publishing without investigation, fact-checking, or

editing has become the optimal legal strategy”

(emphasis in original)).

The Court is not bound to keep repeating the same

mistakes. There comes a time when this Court must

correct its past mistakes. Cf. Loper Bright Enters. v.

Raimondo, 603 U.S. 369, 411 (2024) (“The Court has

jettisoned many precedents that Congress likewise

could have legislatively overruled.”); see also 1 J. Kent,

COMMENTARIES ON AMERICAN LAW 443 (1826) (“If . . .

6

any solemnly adjudged case can be shown to be founded

in error, it is no doubt the right and the duty of the

judges who have a similar case before them, to correct

the error.”). “Judicial humility” requires the Court to

“admit[] and in certain cases correct[] [its] mistakes,

especially when those mistakes are serious.” Loper

Bright Enters., 603 U.S. at 411 (internal citations

omitted).

Indeed, several Justices have called for this Court

to revisit Sullivan or have otherwise identified its

flaws. Justice Thomas has said, “New York Times and

the Court’s opinions extending it were policy-driven

decisions masquerading as constitutional law,” and

charged that this Court “should reconsider [its] jurisprudence in this area.” McKee v. Cosby, 139 S. Ct. 675,

676, 682 (2019) (Thomas, J., concurring in the denial

of certiorari). Justice Gorsuch has agreed, noting that

the actual-malice doctrine “evolved into a subsidy for

published falsehoods on a scale no one could have foreseen” that “leave[s] far more people without redress

than anyone could have predicted,” and he called for

this Court to “return[] its attention” to Sullivan. Berisha,

141 S. Ct. 2424, 2429-30 (2021) (Gorsuch, J., dissenting

from the denial of certiorari). And Justice Kagan has

described “[t]he obvious dark side of the Sullivan

standard”: it “allows grievous reputational injury to

occur without monetary compensation or any other

effective remedy.” A Libel Story: Sullivan Then and

Now, 18 LAW & SOC’Y INQUIRY 197, 205 (1993).

It is time for Sullivan and Linn to be overruled.

Even so, should this Court leave Sullivan and

Linn undisturbed, it still should resolve the second

question; whether state anti-SLAPP statutes violate

plaintiff’s Seventh Amendment right to a civil jury

7

trial. The Seventh Amendment’s right to a civil jury

trial remains one of three rights not yet incorporated

against the States. This Court should incorporate it

and hold that the Seventh Amendment’s right to a

civil jury trial applies to the States, and recognize that

their application of the clear- and-convincing-evidence

standard at the pleading stages of a defamation claim

through anti-SLAPP statutes violates the Seventh

Amendment.

This case is an ideal vehicle to resolve the question(s) presented. California, itself, only applies the

“actual malice” standard because of this Court’s decision

about federal, not state, law. See Reader’s Digest Assn

v. Superior Court, 37 Cal. 3d 244, 256-257 (Cal. 1984);

Morales v. Coastside Scavenger Co., 167 Cal. App. 3d

731, 734-735 (Cal. App. Ct. 1985) (utilizing the Linn

standard for public disputes during a labor dispute).

There is no independent state law actual malice

standard.

Sullivan and Linn are not equipped to handle the

world as it is today—media is no longer controlled by

companies that employ legions of fact-checkers before

publishing an article. Instead, everyone in the world

has the ability to publish any statement with a few

keystrokes. And in this age of clickbait journalism,

even those members of the legacy media have resorted

to libelous headlines and false reports to generate

views. This Court need not further this golden era of

lies.

Further, this case presents the important question

of whether disfavored speakers’ rights to speech and

petition may be extinguished through procedural devices

which effectively weigh the value of the speech’s content

prior to a meaningful opportunity to be heard.

8

Accordingly, a writ of certiorari should be granted.

II. Respondents Made and Published Maliciously Defamatory Statements as Part of a Labor

Dispute.

Westoil Marine Services, Inc. (“Westoil”) and

Centerline Logistics Corporation (“Centerline”) (collectively referred to as the “Petitioners”) brought suit in

this matter. App.140a. (Petitioners’ Appellate Brief).

Westoil operates in the maritime petroleum industry

from a berth owned by the Port of Los Angeles. Westoil

is a subsidiary of Centerline. Westoil and Centerline

sought to protect themselves against an array of maliciously false and defamatory accusations levied against

them by the Inlandboatmen’s Union of the Pacific

(“IBU”) and Cris Sogliuzzo (“Sogliuzzo”) (collectively

referred to as “Respondents”). App.140a. The false

statements were made at a closed session of a municipal

Harbor Commission and separately through handbills

purporting to support the ongoing, broader, labor

dispute. App.142a.

The IBU is a labor union representing maritime

employees along the West Coast. Sogliuzzo, a former

employee of Westoil, was an IBU shop steward, and a

member of the IBU Regional Executive Committee.

This case arose from patently false and malicious

statements which Sogliuzzo and an IBU officer made,

as IBU agents, to damage Petitioners as severely as

possible due to a longstanding private dispute. Respondents’ actual malice and seething hatred of Petitioners

is present in Sogliuzzo’s own words, in the trial court

record. The vast majority of the evidence underlying

Petitioners’ appeal is undisputed or unrebutted, yet was

disregarded at every stage of the California litigation.

9

This case is unique in several ways. Most of the

challenged statements were transcribed, along with

the statements of two government representatives who

informed Sogliuzzo that his topics were unrelated to

the pending meeting in which they were spoken.

App.149a-151a. That Respondent, and his principal

IBU, introduced evidence in the trial court admitting to

actual malice. Respondents desired to shut down

Petitioners’ real estate lease to “make the wallet pay”

as leverage in a dispute over union pensions and other

topics. These topics were entirely unrelated to the

proprietary government meeting in which they were

spoken. App.159a-161a, 175a-183a.

After Centerline and Westoil filed suit, as is their

First Amendment right, the state courts extinguished

the suit without assigning even the slightest weight

to Petitioners’ evidence.

A. The Lawsuit.

Westoil operated out of Berth LA301 located in

the Port of Los Angeles under a lease with the City of

Los Angeles, by and through the Harbor Commission

(“Board”). Under the terms of the permit, Centerline

(formerly known as Harley Marine Services, Inc.

(“HMS”)) was a guarantor of the permit. The Board was

reviewing whether to extend the terms of the permit.

The Port was in regular contact with Centerline,

providing feedback regarding the extension. The only

point of issue during the extension discussions was

negotiating the rental rate of the lease. It was understood that the extension would be approved as a matter

of course.

The Port of Los Angeles has limited statutory

authority. It is a propriety department of the City of

10

Los Angeles and governed by the Los Angeles Board

of Harbor Commissioners. The Harbor Commission, on

behalf of the Port, generates revenue through leasing

and shipping service fees from the Harbor District

area. The Harbor Commission operates, in essence,

like a landlord. Los Angeles City Charter Article VI.

The Harbor Commission does not have authority

to regulate, investigate, or adjudicate safety issues

regarding vessels, employees or equipment. It does not

have the authority to regulate, investigate, or adjudicate

matters involving insurance in the petroleum industry

or otherwise. It does not have the authority to regulate,

investigate, or adjudicate labor issues between employers and unions, nor safety and the environment. As it

relates to the issue at hand, the Harbor Commission

was tasked with negotiating the price rates for a lease.

Nothing more. App.146a-147a.

During relevant periods, Sogliuzzo was a Westoil

employee, a member of the IBU, a member of the IBU

Regional Executive Committee, and the IBU shop

steward for Westoil. The IBU Constitution recognizes

all such Committee members as officers.

Below are examples of the maliciously false,

transcribed, statements Sogliuzzo made on or about

October 5, 2021, and later repeated on October 21, 2021:

We [The IBU believes] there are also Cal/

OSHA violations as it relates to employee

health monitoring and site safety.

***

[The IBU also believes] that the insurance

coverages, as you are aware of them, are not

11

adequate to the operations this company

conducts.

***

While accidents and injuries need to be

reported, so should near misses and other

hazardous conditions the company creates,

as an indicator of potential liabilities and

measurable scale of genuine concern for consequences to its workforce and surrounding

businesses that could be harmed.

***

[The IBU questions] if this company has been

entirely honest with you, as to the name

changes and shell games that have taken

place over the last year . . .

***

Centerline Logistics has demonstrated that

it will continue to be a bad actor. . . . [The

IBU believes] Centerline Logistics has not

been honest about its business practices . . .

***

Centerline Logistics has taken several

measures to free itself of labor agreements

here in L.A., Long Beach, and continues to do

so, causing grave injury to local workers.

App.149a-151a.

These statements were unrelated to the Harbor

Commission’s meeting, and were intended to interfere

with Petitioners’ lease. The evidence introduced in

the trial court conclusively proved the falsity of the

statements. Petitioners also introduced evidence of

12

actual and presumed damages, including “holdover

rent” which the landlord Commission imposed following

this defamation. App.190a. (Brief containing citations

to Petitioners’ declarations proving damages)

Petitioners brought suit against IBU and Sogliuzzo, alleging that the statements were made in

handbills, outside of the Board meetings and at the

Board meeting with actual malice, and caused damages.

The California courts refused to permit the matter to

go to a jury, dismissing based upon the anti-SLAPP

statute. In doing so, the California courts extended

the application of the anti-SLAPP statute to invade

upon a plaintiff’s constitutionally-protected rights.

B. Petitioners

Raised

These

Federal

Questions at Each Available Stage.

Petitioners’ right to a jury trial and their right to

petition the courts for redress of grievances was violated

by the July 1, 2022 decision of the trial court. Petitioners

raised this issue at the California Court of Appeals and

the California Supreme Court. The California Supreme

Court’s denial of the petition for review was cursory.

App.1a. However, it was presumed to have reviewed

the merits of Petitioners’ claims including the federal

questions.

There is no doubt that Bianchi presented the

substance of his federal due process claim

regarding the Court of Appeal’s disposition of

his appeal to the state Supreme Court when

he petitioned for a writ of mandate. Despite

the state Supreme Court’s summary dismissal

of that petition, we assume that the state court

considered the merits of Bianchi’s federal

claim since Bianchi presented no affirmative

13

evidence to the contrary. Cf. Michigan v.

Long, 463 U.S. 1032, 77 L. Ed. 2d 1201, 103

S. Ct. 3469 (1983) (Supreme Court assumes

that a state court decision does not rest on an

adequate, independent state ground absent

a clear statement to the contrary); but cf. Ylst

v. Nunnemaker, 501 U.S. 797 (1991) (federal

court on habeas review looks through unreasoned state court decisions to the last reasoned

decision to determine whether state courts

ruled on federal or state grounds).

Bianchi v. Rylaarsdam, 334 F.3d 895, 904-905 (9th Cir.

2003) (Fletcher, J., concurring). This rule supports

this Court’s jurisdiction to review state court decisions.

Petitioners set forth their federal arguments in the

manner below:

Because section 425.16 prohibits a party from

petitioning the courts for its own redress, it is

Constitutionally circumscribed. See generally

City of Long Beach v. Bozek (1982) 31 Cal.3d

527, 533-34, fn. 4. Vargas v. City of Salinas

(2011) 200 Cal.App.4th 1331, 1346.

App.164a-165a. Petitioners’ Opening Appellate Brief,

p.33, fn. 7.

Further, not only does an individual not have

a constitutionally-protected right to make

defamatory statements with actual malice,

the Petitioners have a right to petition the

courts. “The right to petition is guaranteed,

the right to commit libel without impunity is

not.” McDonald, 472 U.S. at 485; AOB, p. 3233. After all, the Right to Petition under the

First Amendment long precedes even the

14

constitution. Id., at 482. The right of access

to courts for redress of wrongs is an aspect of

the First Amendment right to petition the

government. Bill Johnson’s Restaurants, Inc.

v. NLRB (1983) 461 U.S. 731, 741 (“(“It has

. . . repeatedly been held that an employer

has the right to seek local judicial protection

from tortious conduct during a labor dispute”);

see BE&K Constr. Co. v. NLRB (2002) 536

U.S. 516, 525, 122 S. Ct. 2390; Glacier NW v.

Int’l Bhd. Of Teamsters Loc. Un. 174 (2023)

598 U.S. 771, 788-89; Benjamin Plener Cover,

The First Amendment Right to a Remedy, 50

U. C. DAVIS L. REV. 1741 (2017); see also AOB,

pp. 32-33; ARB, pp. 13-15. The Decision, by

extending the interpretation of the antiSLAPP statute to unprotected defamation

committed with actual malice, would violate

Petitioners constitutionally-protected right

to seek redress through the courts.

App.356a. Petitioners’ Petition for Appellate Rehearing,

pp.17-18 (continuing through page 23 to highlight

manners in which the Court of Appeal violated Petitioners’ right to petition) (“ . . . Appellants’ right to a jury

trial [ . . . and] right to petition the government for

redress [were extinguished by the Appellate Court’s

Decision]”.).

In ignoring the Petitioners’ constitutionallyprotected rights – which section 425.16 is

powerless to constrain – the Decision usurps

the role of a jury and infringes upon the Petitioners’ right to petition the courts and present

their legal claims to a jury.

15

App.362a. Petitioners’ Petition for Appellate Rehearing,

p.26.

Petitioners also presented these issues to the

California Supreme Court:

6. Do a plaintiff’s Constitutional petition and

speech rights take precedence over the

Decision’s analytical approach?

Petitioners indisputably argued this issue in

the opening brief: “Because section 425.16

prohibits a party from petitioning the courts

for its own redress, it is Constitutionally circumscribed. See generally City of Long Beach

v. Bozek (1982) 31 Cal.3d 527, 533-34, fn. 4.

Vargas v. City of Salinas (2011) 200 Cal.App.

4th 1331, 1346.” AOB at p.33, fn.7.

After all, the Right to Petition under the First

Amendment long precedes even the constitution. Id. at 482. The right of access to courts

for redress of wrongs is an aspect of the First

Amendment right to petition the government.

Bill Johnson’s Restaurants, Inc. v. NLRB

(1983) 461 U.S. 731, 741 (“It has . . . repeatedly been held that an employer has the right

to seek local judicial protection from tortious

conduct during a labor dispute”); see BE&K

Constr. Co. v. NLRB (2002) 536 U.S. 516,

525, 122 S. Ct. 2390; Glacier NW v. Int’l Bhd.

Of Teamsters Loc. Un. 174 (2023) 598 U.S.

771, 788-89; Benjamin Plener Cover, The First

Amendment Right to a Remedy, 50 U. C. DAVIS

L. REV. 1741 (2017); see also AOB, pp. 32-33;

ARB, pp. 13-15. The Decision, by extending

the interpretation of the anti-SLAPP statute

16

to unprotected defamation committed with

actual malice, would violate Petitioners’ constitutionally-protected right to seek redress

through the courts.

Despite this proactive briefing, the Decision’s

nearly universal adoption of the factual arguments made in the Respondents’ briefing

violates Petitioners’ right to a jury trial and

extinguished their right to petition the government for redress. The government cannot

make value judgments that a defendant’s right

to speak and petition is preferable to that of

a plaintiff, and dismiss the claims prior to

discovery, denying plaintiffs of their right to

present legal claims to a jury. If the Decision

had complied with this Court’s binding precedent on this question, no such Constitutional

violation would have occurred.

App.62a-63a. Petitioners’ Petition for California

Supreme Court Review, pp.22-24.

This Court should expressly rule that is

unconstitutional, under both the California

and United States Constitutions, to apply

section 425.16 and 47(b) in such an extreme

manner that the State is making viewpoint

and content-based choices that a defendant’s

speech is more valuable and worthy of protection than a plaintiff’s rights to speak, petition

the government, and obtain a jury trial.

App.49a. Petitioners’ Petition for California Supreme

Court Review, p.7.

Moreover, defamation in a labor dispute is not

solely within the jurisdiction of the National

17

Labor Relations Act. Linn, 383 U.S. at 63

(“The injury that a statement might cause to

an individual’s reputation – whether he be an

employer or union official – has no relevance

to the [NLRB’s] function.”). In those cases,

where an employer shows that the defamatory

statement was made with actual malice as

enunciated in Sullivan, 376 U.S. at 280, the

case may proceed. Linn, 383 U.S. at 63.

App.169a-170a; see also 165a; 168a n.8. Petitioners’

Opening Appellate Brief, p.38.

REASONS FOR GRANTING THE PETITION

Sullivan is an admittedly ahistorical precedent,

divorced from any understanding of the law when the

First Amendment was enacted. Not only does it fail to

adhere to history and tradition, it is unfit for the modern

era where any person or corporation may, with the

push of a button, publish defamatory material for the

billions of people around the world to see—defamatory

material that, like everything else on the internet, will

exist forever.

Moreover, California’s anti- SLAPP statute—as

interpreted and applied by the California Supreme

Court—requires judges to engage in improper factfinding and invade the jury’s provenance in violation

of the Seventh Amendment’s right to a civil jury trial.

This Court need not allow the Seventh Amendment to

linger, unincorporated.

Further, the anti-SLAPP statute must be interpreted in a manner that does not violate a parties’

18

First Amendment right to petition the courts under

the United States Constitution. To ensure that a party

has the right to properly petition the government under

this Court’s standard enunciated in McDonald, the

court must analyze the evidence to determine if actual

malice standard has been met.

Finally, the failure to review evidence to determine if the actual malice standard has been met is

violative of a party’s due process rights under the Fourteenth Amendment of the United States Constitution.

I.

Sullivan Was Wrong from the Start and

Ill-Suited to Address Defamation in the

Modern Day.

A. The Pre-Sullivan Common Law.

Justice White explained that in Sullivan, the Court

“overturn[ed] 200 years of libel law.” Dun & Bradstreet,

Inc., 472 U.S. at 766 ( White, J., concurring in the

judgment).

“The accepted view” was defamation liability did

not “abridge[] freedom of speech or freedom of the press,

and a majority of jurisdictions made publishers liable

civilly for their defamatory publications regardless of

their intent.” Herbert v. Lando, 441 U.S. 153, 158-59

(1979) (emphasis added). Or as Justice Story aptly

explained, “the liberty of the press do[es] not authorize

malicious and injurious defamation.” Dexter v. Spear,

7 F. Cas. 624, 624 (CC RI 1825).

This rule long predated the Founding. Blackstone

summarized: while “[e]very freeman has an undoubted

right to lay what sentiments he pleases before the

public,” he “must take the consequences of his own

temerity” should he publish falsehoods. 4 W. Blackstone,

19

COMMENTARIES ON THE LAWS OF ENGLAND 151-52

(1769). The Founders took a similar view. As Thomas

Jefferson explained, the First Amendment simply provided that “[t]he people shall not be deprived of their

right to speak, to write, or otherwise to publish anything

but false facts affecting injuriously the life, liberty or

reputation of others.” F. Mott, JEFFERSON AND THE

PRESS 14 (1943).

The Founders understood that the First Amendment merely precluded pre-publishing restraints: it did

not abrogate the common-law of defamation. As James

Wilson—a soon-to-be justice of this Court—described

the First Amendment at the Pennsylvania ratifying

convention:

I presume it was not in the view of the

honorable gentleman to say that there is no

such a thing as a libel, or that the writers of

such ought not to be punished. The idea of

the liberty of the press is not carried so far as

this in any country. What is meant by the

liberty of the press is that there should be no

antecedent restraint upon it; but that every

author is responsible when he attacks the

security or welfare of the government, or the

safety, character, and property of the individual.

2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS

ON THE ADOPTION OF THE FEDERAL CONSTITUTION 449

(J. Elliot ed., 1836).

Early American courts recognized as much. For

instance, the Pennsylvania Supreme Court explained

when interpreting its analogous constitutional provi-

20

sion, which provided that “the freedom of the press

shall not be restrained5,”:

The true liberty of the press is amply secured

by permitting every man to publish his opinion;

but it is due to the peace and dignity of

society, to inquire into the motive of such

publications, and to distinguish between those

which are meant for use and reformation,

and with an eye solely to the public good, and

those which are intended merely to delude

and defame. To the latter description, it is

impossible that any good government should

afford protection and impunity.

Respublica v. Oswald, 1 Dall. 319, 325 (Pa. 1788).

And this Court long recognized the insidious nature

of defamatory remarks and that, originally understood,

the freedom of press did not protect libel. “[T]he commonlaw rules that subject the libeler to responsibility for

the public offense, as well as for the private injury, are

not abolished by the protection extended in our constitutions.” Near v. Minnesota ex rel. Olson, 283 U.S.

697, 715 (1931). Indeed, “it is recognized that punishment for the abuse of the liberty accorded to the press

is essential to the protection of the public.” Id. Thus,

libel remained one of the “well-defined and narrowly

limited classes of speech, the prevention and punishment of which have never been thought to raise any

Constitutional problems.” Chaplinsky v. State of New

Hampshire, 315 U.S. 568, 571-72 (1942); see also

Beauharnais v. Illinois, 343 U.S. 250, 255 (1952) (“In

5 Pa. Const. of 1776, art. XII, reprinted in 5 THE FEDERAL AND

STATE CONSTITUTION, COLONIAL CHARTERS, AND OTHER ORGANIC

LAWS 3083 (F. Thorpe ed., 1909).

21

the first decades after the adoption of the Constitution . . . nowhere was there any suggestion that the

crime of libel be abolished.”).

In sum, the law before Sullivan was clear.

B. Sullivan Is Not Fit for the Modern Day.

Sullivan and its progeny (such as Linn and

McDonald) rest primarily on two grounds. First,

Sullivan decided that the First Amendment demanded

breathing space and heightened protection to allow for

the full exchange of ideas necessary for citizens to

engage in democratic governance. 376 U.S. at 269-71

(collecting cases illustrating, among other things, that

“public discussion is a political duty” and that free

speech is essential “to assure unfettered interchange

of ideas for the bringing about of political and social

changes desired by the people”).

Second, the Court concluded the heightened standard on public officials (later extended to labor disputes)

did not matter because they allegedly had, through

their status, “sufficient access to the means of counterargument” to challenge the false or misleading information. Curtis Publ’g Co. v. Butts, 388 U.S. 130, 155

(1967). But neither ground has stood the test of time.

The modern media environment, buoyed by Sullivan’s standard, corrodes public discourse and weakens

our democracy. “Since 1964 . . . our Nation’s media landscape has shifted in ways few could have foreseen.”

Berisha v. Lawson, 141 S. Ct. 2424, 2427 (2021)

(Gorsuch, J., dissenting from the denial of certiorari).

Social media undercuts the central tenets of Sullivan.

The speed and manner of social media quickly spread

lies “sow confusion and erode trust.” Id. at 804-05 (citing

22

Paul Horwitz, The First Amendment’s Epistemological

Problem, 87 WASH. L. REV. 445, 472 (2012)).

Indeed, “the law of defamation is rooted in our

experience that the truth rarely catches up with a lie.”

Gertz v. Robert Welch, 418 U.S. 323, 394 (1974) (White,

J. dissenting). And, without judicial vindication, defamation plaintiffs cannot defend themselves against an

unrepentant defamer.

Chief Justice Roberts too has recognized the harm

that social media and misinformation pose to modern

society. Chief Justice John Roberts, 2019 Year-End

Report on The Federal Judiciary (2019) (“In our age,

when social medica can instantly spread rumor and

false information on a grand scale, the public’s need to

understand our government, and the protections it

provides, is ever more vital.”).

Sullivan and Linn also encourage rampant falsehoods. Under Sullivan, “[i]t seems that publishing

without investigation, fact-checking, or editing has

become the optimal legal strategy.” Berisha, 141 S. Ct.

at 2428 (Gorsuch, J., dissenting from the denial of

certiorari) (emphasis in original).

In the end, “[w]hat started in 1964 with a decision

to tolerate the occasional falsehood . . . has evolved into

an ironclad subsidy for the publication of falsehoods

by means and on a scale previously unimaginable.”

Berisha, 141 S. Ct. at 2428 (Gorsuch, J., dissenting

from the denial of certiorari). It has become apparent—

Sullivan and Linn are unsuited for the modern day

and harm citizens’ debate and faith in this Country.

Gabriel R. Sanchez & Keesha Middlemass, Misinformation is eroding the public’s confidence in democracy,

Brookings (July 26, 2022), https://www.brookings.

23

edu/articles/misinformation-is-eroding-the-publicsconfidence-in-democracy/ (collecting sources documenting that “[o]ne of the drivers of decreased confidence

in the political system has been the explosion of misinformation deliberately aimed at disrupting the democratic process.”); see also Berisha, 141 S. Ct. at 2428

(Gorsuch, J., dissenting from the denial of certiorari)

(“If ensuring an informed democratic debate is the

goal, how well do we serve that interest with rules

that no longer merely tolerate but encourage falsehoods

in quantities no one could have envisioned almost 60

years ago?”).

II. Anti-SLAPP Statutes Violate the Seventh

Amendment.

A. The Seventh Amendment, Which Protects

a Right to a Civil Jury Trial on Defamation Claims, Should Be Incorporated.

Through selective incorporation, the Bill of Rights

only applies to States to the extent a specific right has

been incorporated through the Fourteenth Amendment.

See McDonald v. City of Chicago, Ill., 561 U.S. 742,

758-59 (2010). This Court incorporates a right only if

it “is fundamental to our scheme of ordered liberty” or

is “‘deeply rooted in this Nation’s history and tradition.’”

Id. at 767 (internal citations omitted) (emphasis in

original) (quoting Washington v. Glucksberg, 521 U.S.

702, 721(1997)).

Over time, this Court has “eventually incorporated almost all of the provisions of the Bill of Rights.”

Id. at 764, even those it previously concluded did not

apply to the States, see id. at 766 (collecting cases)

(“Employing this approach, the Court overruled earlier

decisions in which it had held that particular Bill of

24

Rights guarantees or remedies did not apply to the

States.”).

Now only three rights remain unincorporated: (1)

“the Third Amendment’s protection against quartering of

solders; (2) the Fifth Amendment’s grand jury indictment requirement; [and] (3) the Seventh Amendment’s

right to a jury trial in civil cases.”6 Id. at 765 n.13.

The Seventh Amendment’s Right to a Civil Jury

Trial is fundamental to our scheme of ordered liberty

and deeply rooted in this Nation’s history and tradition.

This Court has recognized that

[t]he right of jury trial in civil cases at

common law is a basic and fundamental

feature of our system of federal jurisprudence

which is protected by the Seventh Amendment. A right so fundamental and sacred to

the citizen, whether guaranteed by the Constitution or provided by statute, should be

jealously guarded by the courts.

Jacob v. City of New York, 315 U.S. 752, 752-53 (1942)

(emphasis added); cf. Chauffeurs, Teamsters & Helpers,

Loc. No. 391 v. Terry, 494 U.S. 558, 565 (1990) (“Maintenance of the jury as a fact-finding body is of such

importance and occupies so firm a place in our history

and jurisprudence that any seeming curtailment of the

6 Subsequent to McDonald, this Court incorporated the rights

under the Sixth and Eighth Amendments. See Ramos v. Louisiana,

590 U.S. 83, 93 (2020) (incorporating the Sixth Amendment’s

unanimity jury verdict requirement); Timbs v. Indiana, 586 U.S.

146, 150 (2019) (incorporating the Eighth Amendment’s Excessive

Fines Clause).

25

right to a jury trial should be scrutinized with the

utmost care.”).

The right to a civil jury trial strongly influenced

the adoption and ratification of the Constitution. The

anti-Federalists challenged the Constitution for its

failure to include a right to a civil jury trial. For

example, Richard Henry Lee charged:

The trial by jury in the judicial department,

and the collection of the people by their

representatives in the legislature, are those

fortunate inventions which have procured for

them, in this country, their true proportion

of influence, and the wisest and most fit means

of protecting themselves in the community.

Their situation, as jurors and representatives,

enables them to acquire information and

knowledge in the affairs and government of

society; and to come forward, in turn, as the

centinels and guardians of each other.

See Richard Henry Lee, Letters of the Federal Farmer

in PAMPHLETS ON THE CONSTITUTION OF THE UNITED

STATES, 277, 315-16 (Paul L. Ford ed., 1888).

The Federalists recognized the potency of this

argument. Alexander Hamilton responded, “[t]he

objection to the plan of the convention, which has met

with most success in this State, and perhaps in several

of the other States, is that relative to the want of a

constitutional provision for the trial by jury in civil

cases.” THE FEDERALIST NO. 83 (Alexander Hamilton)

(emphasis in original). Ultimately, even the Federalists

agreed on the importance of the right to a civil jury

trial. Hamilton continued, “[t]he friends and adversaries

of the plan of the convention, if they agree on nothing

26

else, concur at least in the value they set upon the trial

by jury.” Id. And when the Constitution was finally

ratified, several States explicitly noted the importance

of the right to a civil jury trial. See, e.g., ratification of

the Constitution by the State of North Carolina § 11

(Nov. 21, 1789) (“Resolved. . . . That in controversies

respecting property, and in suits between man and

man, the ancient trial by jury is one of the greatest

securities to the rights of the people, and ought to

remain sacred and inviolable.”).

A right so fundamental to our ordered scheme of

liberty, and deeply rooted in our Nation’s history and

tradition, that its omission nearly scuttled the adoption

of the Constitution should not linger unincorporated.7

B. There Is a Split Among the State

Supreme Courts Regarding Whether the

Application of the Clear and Convincing

Evidence Standard in Anti-SLAPP Cases

Violates the Right to a Civil Jury Trial.

California courts apply the rule that the clear and

convincing evidence standard applied to anti-SLAPP

motions—often without any discovery—does not violate

a right to a civil jury trial. See Klem v. Access Ins. Co.,

17 Cal App. 5th 595, 608 n. 6 (Cal. App. Ct. 2017)

(citing Equilon Enterprises v. Consumer Cause, Inc.,

7 Even though this Court previously concluded the Seventh

Amendment’s civil jury requirement is not incorporated against

the States, those decisions “long predate the era of selective

incorporation,” and this Court has consistently reversed those

old lines of cases when applying the selective incorporation

doctrine. McDonald, 561 U.S. at 765-66, n. 13.

27

29 Cal. 4th 53, 63 (Cal. 2002)); Edward v. Ellis, 72 Cal.

App. 5th 780, 791 (2021).

There is a split in the state court decisions on this

issue. Cf. Wynn v. AP, 542 P.3d 751, 757-758 (Nev.

2024)(no jury trial violation), with Davis v. Cox, 351

P.3d 862, 874 (Wash. 2015) (jury trial violation), abrogated in part on other grounds by Maytown Sand &

Gavel, LLC v. Thurston Cnty., 423 P.3d 223 (Wash. 2018)

and Leiendecker v. Asian Women United of Minn., 895

N.W.2d 623, 636 (Minn. 2017) (jury trial violation).

The Washinton Supreme Court has reasoned that

the application of the clear-and-convincing-evidence

standard “invades the jury’s essential role of deciding

debatable questions of fact,” and thus violates the

right to a jury trial.8 Davis, 351 P.3d at 874.

The Minnesota Supreme Court agrees with Washington. It has explained that the application of the

clear-and-convincing-evidence standard violates the

right to a civil jury trial by invading the jury’s factfinding role. Leiendecker v. Asian Women United of

Minn., 895 N.W.2d 623, 636 (Minn. 2017).

Such a split over a fundamental right must be

resolved. Currently, 38 States and the District of Columbia have anti-SLAPP statutes. Anti-SLAPP Legal

Guide, Reporters Committee for Freedom of the Press,

http://www.rcfp.org/anti-slapp-legal-guide (last visited

June 20, 2025). And while the States have differing

8 While Davis focused on the Washington constitution’s right to

a jury trial, that right is similar to that under the Seventh

Amendment. Compare Wash. Const. art. 1, § 21 (“The right of

trial by jury shall remain inviolate), with U.S. Const. amend. VII

(“In suites at common law, . . . , the right of trial by jury shall be

preserved . . . ”).

28

statutes, the actual malice standard (and its associated

burden of proof) must be applied consistently across

the Nation.

Accordingly, this Court should resolve the split

among State courts and clarify that applying the clear

and convincing evidence standard at the anti-SLAPP

stage—with or without discovery—violates the Seventh

Amendment right to a civil jury trial. This Court

should not allow States to infringe on this fundamental

right.

III. California’s Extension of the Litigation

Privilege to Labor Disputes and Other

Matters Outside of a Judicial Proceeding

Infringes Upon Litigants’ First Amendment

Right to Petition the Courts.

In Centerline, the court extended California’s

litigation privilege to a labor dispute and matters

outside of a legal proceeding. In doing so, the court

refused to review whether the statements were made

with actual malice. The California judiciary has applied

California Civil Code section 425.16 in a manner

which directly violates this Court’s directives protecting

the First Amendment’s right to Petition the courts

under the United States Constitution. The statute

itself allows no such treatment. Absent intervention

by this Court, state courts will remain free to detach

their analysis from the constraints of the Founders’

wisdom as set forth in the United States Constitution.

‘“The right to petition is one of “the most precious

of the liberties safeguarded by the Bill of Rights” and

is made applicable to the states by the Fourteenth

Amendment.”’ Nader v. Me. Democratic Party, 41 A.3d

551, 558 (Maine 2012) (citing United Mine Workers v.

29

Illinois Bar Ass’n, 389 U.S. 217, 222 (1967); Virginia

v. Black, 538 U.S. 343, 358 (2003)).

Under the First Amendment, one has the right to

petition the government to redress grievances. In

contrast to the right to free speech, which “fosters the

public exchange of ideas that is integral to deliberative

democracy,” the right to petition “allows citizens to

express their ideas, hopes, and concerns to their government and their elected representatives.” Borough of

Duryea v. Guarnieri, 564 U.S. 379, 388 (2011). Putting a

finer point on it, “[a] petition conveys the special

concerns of its author to the government and, in its

usual form, requests action by the government to

address those concerns.” Id. at 388-89; accord McDonald

v. Smith, 472 U.S. 479, 486 (1985) (Brennan, J., concurring) (“The very idea of a government, republican

in form, implies a right on the part of its citizens to

meet peaceably for consultation in respect to public

affairs and to petition for a redress of grievances.”

(quoting United States v. Cruikshank, 92 U.S. 542,

552 (1876))).

“Just as false statements are not immunized by

the First Amendment right to freedom of speech,

baseless litigation is not immunized by the First

Amendment right to petition.” Bill Johnson’s Rests.,

Inc. v. NLRB, 461 U.S. 731, 743 (1983). “The right to

petition is guaranteed; the right to commit libel with

impunity is not.” McDonald, 472 U.S. at 485.

Whether commercial or non-commercial, petitioning a court for redress or speaking extrajudicially,

every branch of government is forbidden from favoring

one viewpoint over another in nearly every circumstance.

30

A. Prior to Prohibiting a Party’s Right to

Petition the Courts, the California Courts

Must Review Whether the Actual Malice

Standard Has Been Met.

In Bill Johnson’s, this Court held that no state

court lawsuit for libel, even in the midst of a labor

dispute, may be extinguished unless “utmost care” is

taken in first evaluating whether the suit has any

reasonable basis. 461 U.S. at 744. In McDonald, this

Court reviewed the right to Petition enunciated in Bill

Johnson’s with a defamation claim in letters to the

President of the United States under Sullivan. 472

U.S. at 1480, 485. In doing so, this Court determined

that defamation cases—even in dealing with issues of

privilege—may proceed if there is actual malice.9 Id.

There is no absolute immunity to commit libel. This

Court found that there can be no “greater constitutional

protection to statements made in a petition to the

President than other First Amendment expressions.”

Id. The contours of the First Amendment did not apply

to situations of actual malice.10

In Centerline, however, the Courts failed to even

review evidence as to whether the actual malice

standard was met. Instead, the Courts, by fiat, determined that all communications related to a labor

9 In a slightly different context, this Court held that the right to

petition protects employers’ access to the courts from serving as

a predicate for liability even after the state court proceedings

have concluded. BE&K Constr. Co. v. NLRB, 536 U.S. 516 (2002).

10 The Centerline ruling provides a labor organization issuing

maliciously defamatory statements that have no connection with

ongoing litigation to have greater protection than any other type

of speech, including political speech.

31

dispute, which involved some litigation, created an

absolute privilege. This ruling ignores the Constitutional precedent of McDonald, Linn and Bill Johnson’s.

B. In Reviewing a Party’s Right to Petition,

the California Courts Improperly Made a

Value-Based Decision.

No state government is allowed to summarily

extinguish a party’s federal First Amendment rights

simply because the state made a value judgment that

a defendant’s speech is always superior to the petition

rights of an employer plaintiff. Such viewpoint-based

analysis runs afoul of longstanding federal precedent.

“The problem with the Eighth Circuit’s analysis as

applied to the present case is that it improperly makes

a value judgment on the speech itself, something that is

not part of the Tinker analysis. As the plaintiffs here

correctly point out, viewpoint discrimination is simply

not tolerated under Tinker.” Lowery v. Euverard, 497

F.3d 584, 605 (6th Cir. 2007) (Gilman, J., concurring).

In Carey v. Brown, 447 U.S. 455, 461-462 (1980),

this Court held that government restrictions which

favored labor picketing11 over other messages violated

the First Amendment. Citing the nearly identical

ordinance in Police Dep’t of Chicago v. Mosley, 408

U.S. 92, 96 (1972), the Court held that the government

may not deny the use of a public forum to those whose

views it finds unacceptable while allowing it to those

11 ‘“At issue in this case is the constitutionality under the First

and Fourteenth Amendments of a state statute that generally

bars picketing of residences or dwellings, but exempts from its

prohibition “the peaceful picketing of a place of employment

involved in a labor dispute.”’ Carey, at 457.

32

whose views it favors. Id. at 463, citing New York

Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

In another California case, the challenged ordinance favored commercial speech over non-commercial

speech by banning all non-commercial signage of a

certain format. ‘“[The City of] Gilbert has not offered

any such explanation, and I doubt it could come up

with one if it tried. What we are left with, then, is

Gilbert’s apparent determination that “ideological”

and “political” speech is categorically more valuable,

and therefore entitled to greater protection from

regulation, than speech promoting events sponsored by

non-profit organizations. That is precisely the value

judgment that the First and Fourteenth Amendments

forbid Gilbert to make.”’ Reed v. Town of Gilbert, 707

F.3d 1057, 1080 (9th Cir. 2013)(Watford, J., dissenting)

(citing Metromedia, Inc. v. City of San Diego, 453 U.S.

490, 514 (1981);12 Carey v. Brown, 447 U.S. 455, 466

(1980); Police Dep’t of Chicago v. Mosley, 408 U.S. 92,

96 (1972)).

This dissent was effectively vindicated by this

Court’s reversal: ‘“Government discrimination among

viewpoints—or the regulation of speech based on

“the specific motivating ideology or the opinion or

perspective of the speaker”—is a “more blatant” and

“egregious form of content discrimination.”’ Reed v.

Town of Gilbert, 576 U.S. 155, 168-169 (2015) (quoting

Rosenberger v. Rector and Visitors of Univ. of Va., 515

819, 829 (1995).

This Court has also stricken censorship which

places a greater value on commercial versus non12 Even in the commercial speech sector, viewpoint discrimination

violates the First Amendment when it fails strict scrutiny analysis.

33

commercial speech: “Insofar as the city tolerates billboards at all, it cannot choose to limit their content to

commercial messages; the city may not conclude that

the communication of commercial information concerning goods and services connected with a particular site

is of greater value than the communication of noncommercial messages.” Metromedia, Inc. v. City of San

Diego, 453 U.S. 490, 513-514 (1981).

The overriding principle is that Constitutional

rights may not be denied simply because of hostility

to their assertion or exercise. Cox v. La., 379 U.S. 536,

551 (1965) (citing Watson v. Memphis, 373 U.S. 526,

535 (1963)). Although Cox was a criminal case, it was

heard by this Court after unconstitutional judicial

application of facially-neutral state statutes, as here.

It is axiomatic that a state cannot censor unfavored

speech by a disfavored speaker through its judiciary

rather than its executive or legislative branch. All are

public officials. “It is clearly unconstitutional to enable

a public official to determine which expressions of view

will be permitted and which will not or to engage in

invidious discrimination among persons or groups

either by use of a statute providing a system of broad

discretionary licensing power or, as in this case, the

equivalent of such a system by selective enforcement

of an extremely broad prohibitory statute.” Cox at 557558.

Justice Black’s concurrence in Cox is particularly

relevant to the present case: “By specifically permitting

picketing for the publication of labor union views [but

prohibiting other sorts of picketing], Louisiana is

attempting to pick and choose among the views it is

willing to have discussed on its streets. It thus is trying

to prescribe by law what matters of public interest

34

people whom it allows to assemble on its streets may and

may not discuss. This seems to me to be censorship in

a most odious form, unconstitutional under the First and

Fourteenth Amendments.” Mosley, supra, 408 U.S. at

97-98 (brackets in original) (quoting the “thrust of”

Justice Black’s concurrence in Cox at 581).

Petitioners’ case presents an opportunity for this

Court to clarify whether the same First Amendment

right to petition prevents state courts from taking the

same actions which the NLRB took in Bill Johnson’s,

supra, and BE&K Constr. Co. v. NLRB, 536 U.S. 516

(2002).

C. California’s Interpretation That It May

Dismiss a Party’s Right to Petition the

Court, Alleging Actual Malice, Without

Reviewing the Plaintiff’s Evidence,

Creates a Split Among the State Courts.

Other state courts have recognized the constitutional constraints applicable to anti-SLAPP statutes.

Upon challenge to the constitutionality of Maine’s

anti-SLAPP statute, the Nader court recognized that

the prior judicial analysis, not the statute, had effected

a violation of the plaintiff’s right to petition:

To avoid an unconstitutional application of the

law, as our rules of statutory interpretation

require us to do, [the anti-SLAPP statute]

must be construed, consistent with usual

motion-to-dismiss practice, to permit courts

to infer that the allegations in a plaintiff’s

complaint and factual statements in any

affidavits responding to a special motion to

dismiss are true. . . .

35

Nader, 41 A.3d at 562.

Had this same approach been applied to Petitioners’ case, it would have readily survived the antiSLAPP motion and proceeded to discovery. This result

is not only fair considering the early stage of the lawsuit

where it occurs, but because Petitioners’ constitutional

rights require it. The concurrence in Nader emphasized

this consideration: “I write separately because Maine’s

anti-SLAPP statute raises serious concerns regarding

the right to equal protection under the law, to petition

the government for redress of grievances, and to open

courts.” Id., at 564.

The Massachusetts Supreme Judicial Court also

recognized the “constitutional problem” presented by

the potential interpretation of its state’s anti-SLAPP

statute which favored defendants as a class:

Despite the apparent purpose of the antiSLAPP statute to dispose expeditiously of

merit less lawsuits that may chill petitioning

activity, the statutory language fails to track

and implement such an objective. By protecting one party’s exercise of its right of

petition, unless it can be shown to be sham

petitioning, the statute impinges on the

adverse party’s exercise of its right to petition,

even when it is not engaged in sham petitioning. This conundrum is what has troubled

judges and bedeviled the statute’s application.

Duracraft Corp. v. Holmes Prods. Corp., 691 N.E.2d

935, 943 (Mass. 1998) (emphasis added).

California’s interpretation has failed to take this

approach. Thereby creating a situation where Petitioners’ rights to petition were rapidly extinguished without

36

any weight given to their evidence or reasoning. There

is no justification for the unconstitutional analysis

which was conducted to extinguish Petitioners’ claims.

Entire arguments and unrebutted evidence submitted

by Petitioners was disregarded without comment.

D. Petitioner’s Right to Free Speech Was

Violated by Favoring One Group of

Speakers Over Another.

The California courts’ application of a strict burden

on Petitioners was not content neutral. “As we have

explained, a speech regulation is content based if the

law applies to particular speech because of the topic

discussed or the idea or message expressed.” Reed v.

Town of Gilbert, 576 U.S. 155, 170 (2015). By effectively

favoring Respondents’ speech over Petitioners’ based

upon the nature of the content, the analysis below

runs afoul of the Constitution. The rush to summarily

approve protected status for Respondents’ favored speech

while ignoring Petitioners’ countervailing rights was

constitutionally forbidden.

The decision’s appeals to public policy goals do

not insulate its operation’s effective abridgement of

employer speech. In an effort to protect the Constitutional rights of one group, pro-union speakers here,

even the judiciary cannot apply value judgments that

pro-employer speech is inferior and suppress it prior

to any fact-finding. The analyses below omitted any

consideration for Petitioners’ rights, and must be

reversed.

Because “[s]peech restrictions based on the

identity of the speaker are all too often

simply a means to control content,” Citizens

United v. Federal Election Comm’n, 558 U.S.

37

310, 340 (2010), we have insisted that “laws

favoring some speakers over others demand

strict scrutiny when the legislature’s speaker

preference reflects a content preference,”

Turner Broad Sys., 512 U.S. 622, 658 (1994).

Reed v. Town of Gilbert, 576 U.S. 155, 170 (2015).

The decisions below recite well-recognized public

policies favoring the underlying speech and ostensibly

preventing only sham lawsuits. The solution to one

Constitutional problem cannot lie in the violation of

other Constitutional rights. “For even the most legitimate goal may not be advanced in a constitutionally

impermissible manner.” Carey at 465-466.

IV. The California Courts Violated the Petitioner’s Fourteenth Amendment Rights to

Due Process Under the United States

Constitution.

Not only was the analysis below invalid because

it considered Petitioners’ viewpoint deserving of

less protection than Respondents’ viewpoint; it was

accomplished in a manner which failed to recognize

Petitioners’ rights to have their evidence and reasoning heard in any fair-minded forum. This Court

has enforced the federal Due Process standard against

state courts which have failed to give a plaintiff’s case

any meaningful consideration:

Due process does not, of course, require that

the defendant in every civil case actually have

a hearing on the merits. A State, can, for

example, enter a default judgment against a

defendant who, after adequate notice, fails to

make a timely appearance, . . . or who, without

justifiable excuse, violates a procedural rule

38

requiring the production of evidence necessary

for orderly adjudication, [] What the Constitution does require is “an opportunity . . .

granted at a meaningful time and in a meaningful manner,” [], “for [a] hearing appropriate

to the nature of the case,” [].

Boddie v. Connecticut, 401 U.S. 371 (1971) (internal

citations omitted).

Even when Petitioners’ briefing highlighted evidence, unrebutted on key points, it was never truly

considered. Written proof of actual malice, falsity, and

damages was never considered. Petitioners were denied

the opportunity to pursue discovery and receive a

summary judgment hearing. Fundamental arguments,

based upon unrebutted evidence of record, were never

mentioned by the Court of Appeal. The California

Supreme Court declined to grant review despite these

clear errors and violations of Petitioners’ rights under

the federal Constitution.

39

CONCLUSION

For all of the aforementioned reasons, the petition

for writ of certiorari should be granted.

Respectfully submitted,

Christopher L. Hilgenfeld

Counsel of Record

Daniel J. Spurgeon

DAVIS GRIMM PAYNE & MARRA

701 Fifth Avenue, Suite 3500

Seattle, WA 98104

(206) 447-0182

CHilgenfeld@davisgrimmpayne.com

Counsel for Petitioners

June 24, 2025