Amicus Curiae Brief — Anti-Defamation League v. Quigley

4

MOTION FILED 4 ae

DEC TS 20s

IN THE

Supreme Court of the United States

SAUL F. ROSENTHAL AND THE ANTI-DEFAMATION LEAGUE,

Petitioners,

V.

WILLIAM QUIGLEY AND DoROTHY QUIGLEY,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE OF THE AMERICAN

JEWISH COMMITTEE, THE AMERICAN JEWISH CONGRESS,

AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, THE

AsIAN Law Caucus, BET TZEDEK, THE HUMAN RIGHTS CAMPAIGN,

THE JEwWisH COUNCIL FOR PUBLIC AFFAIRS, LAMBDA LEGAL

DEFENSE AND EDUCATION FuND, THE NATIONAL ASIAN PACIFIC

AMERICAN LEGAL CONSORTIUM, THE NATIONAL ASSOCIATION For

THE ADVANCEMENT OF COLORED PEOPLE, THE NATIONAL

PARTNERSHIP FOR WOMEN AND FAMILIES, Now LEGAL DEFENSE

AND EDUCATION FUND, PUBLIC COUNSEL, THE SOUTHERN POVERTY

Law CENTER, AND THE VIOLENCE POLICY CENTER IN SUPPORT OF

PETITIONERS AND BRIEF AMICI CURIAE

TERESA WYNN ROSEBOROUGH ERWIN CHEMERINSKY

DEBORAH M. DANZIG Counsel of Record

SUTHERLAND ASBILL & BRENNAN LLP CATHERINE FISK

999 Peachtree Street, N.E. UNIVERSITY OF SOUTHERN

Atlanta, GA 30309 CALIFORNIA LAW SCHOOL

(404) 853-8000 699 Exposition Blvd.

Los Angeles, CA 90089

(213) 740-2539

Counsel for Amici Curiae

184973 ce)

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

Se |

The American Jewish Committee, The American Jewish

Congress, Americans United for Separation of Church and

State, The Asian Law Caucus, Bet Tzedek, The Human Rights

Campaign, The Jewish Council for Public Affairs, Lambda

Legal Defense and Education Fund, The National Asian

Pacific American Legal Consortium, The National

Association for the Advancement of Colored People, The

National Partnership for Women and Families, NOW Legal

Defense and Education Fund, Public Counsel, The Southern

Poverty Law Center, and The Violence Policy Center

(“amici”) hereby move, pursuant to S. Ct. R. 37.2, for leave

to file a brief amicus curiae in support of the petition for a

writ of certiorari to the United States Court of Appeals for

the Tenth Circuit. Although Petitioners the Anti-Defamation

League (“ADL’’) and Saul F. Rosenthal have consented to

the filing of this amicus brief, Respondents William and

Dorothy Quigley have refused their consent. A copy of the

proposed brief is attached.

As more fully explained at pages one through seven of

the attached amicus brief under “Interest of Amici Curiae,”

amici have a significant interest in the outcome of this

litigation because they are public interest organizations, like

the ADL, that use speech about issues of public concern to

advance their core missions. The rule announced by the Tenth

Circuit in this case threatens to stifle the speech of these

groups by imposing liability for speech traditionally afforded

protection under the First Amendment.

Accordingly, Amici respectfully request that the Court

grant leave to file the attached brief amicus curiae.

Respectfully submitted,

TERESA WYNN ROSEBOROUGH ERWIN CHEMERINSKY

DesoraH M. DanziG Counsel of Record

SUTHERLAND ASBILL & BRENNAN LLP CaTHERINE FISK

999 Peachtree Street, N.E. UNIVERSITY OF SOUTHERN

Atlanta, GA 30309 CALIFORNIA LAW SCHOOL

(404) 853-8000 699 Exposition Blvd.

Los Angeles, CA 90089

(213) 740-2539

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Table of Cited Authorities .......-.-----eeeeee:

Interest of Amici Curiae ........-- eee eee eens

Summary of Argument .......----++eeeeeeeeee

Certiorari Should Be Granted To Clarify

When Speech Is Of “Public Concern” And

To Resolve The Conflicts Between The Tenth

Circuit’s Decision And Rulings By This Court

And

A.

B.

Conclusion

Other Circuits ..........02cecseses

The Speech in this Case Clearly Involved

a Matter of Public Concern .......-.-

The Panel’s Narrow Definition of

Matters of Public Concern Raises

Important Issues and Conflicts with Prior

Decisions of this Court and those of

Other Circuits .........eccceeeees

The Public Concern Doctrine and the

Actual Malice Standard Insure that the

Proper Balance is Struck Between

Protected Speech and Liability for the

Dissemination of False Information ...

a. ee ec Fe ee See TSO SS eee ee eee”

11

16

il

TABLE OF CITED AUTHORITIES

Page

CASES

Associated Press v. Walker, 338 U.S. 130 (1967) .. 11

Bartnicki v. Vopper, 532 U.S. 514 (2001) ........ 8,9

Brasslett v. Cota, 76) F.2d 827 (1% Cir. 1985) ....12, 13

Brenner v. Brown, 36 F.3d 18 (7" Cir. 1994) ...... 13

Connick vy. Myers, 461 U.S. 138 (1983) ......... 8, 9, 13

Curtis Publishing Co. v. Butts, 388 U.S. 130

CUTE chs cae ada ese ancene sen eeekanaeeee 11

Dalbec v. Gentleman’s Companion, Inc., 828 F.2d

We Ce Se BOT sh os eevee ae ne ns keanea kes 15

Denton v. Morgan, 136 F.3d 1038 (5" Cir. 1998)

LG da CREA Eee Te ee ae 12, 13

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

fae Se fg | rr eee ree 8, 11

Flamm v. American Association of University

Women, 201 F.3d 144 (2d Cir. 2000) .......... 12, 43

Gertz v. Welch, 418 U.S. 323 (1974) ............ 11,12

Johnson v. Multnomah County, 48 F.3d 420 (9" Cir.

SE pana to ae eee eee eee re eee 13

ill

Cited Authorities

Page

Landmark Communications, Inc. v. Virginia,

435 U.S. B29 (ISTE) 2. cece enw cnccssceess 10

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

oe kbw ko eyeu ne eka eRe eee eee ee 7, 14, 15

Quigley v. Anti-Defamation League and Saul

Rosenthal, 327 F.3d 1004 (10 Cir. 2003) ...8, 10, 12

Sheetz v. The Morning Call, 946 F.2d 202 (3d Cir.

FOOTY on cccavcku cast tubet ares ee een es 10

Straw v. Chase Revel, Inc., 813 F.2d 356 (1987) .. 15

United States v. Thomas Lamar Bean, 537 U.S. 71

¢ <j reer fergie ery soya ts 7

Victor v. Mc Elveen, 150 F.3d 451 (5" Cir. 1998) .. 12

Wulf v. City of Wichita, 883 F.3d 842 (10" Cir.

i. eeereewrr ror res ei es 13

United States Constitution:

First Amendment ..........-eeeeecceeeeeees passim

l

INTEREST OF AMICI CURIAE

This case involves the constitutionality of a very large

damage award imposed against a national civil rights

organization. Amici curiae are also national organizations

that are deeply concerned about the effects of such liability

on freedom of association and freedom of speech protected

by the First Amendment.’

The American Jewish Committee (“AJC”), a national

organization of over 125,000 members and supporters with

33 regional offices, was founded in 1906 to protect the civil

and religious rights of Jews. AJC joins in this amicus brief

because, as a public interest institution, AJC is concerned

that the imposition of liability on such institutions for the

unratified conduct of volunteer members and that a narrow

definition of what constitutes a matter of public concern will

have a significant chilling effect on their activities to the

detriment of our society.

The American Jewish Congress is an organization of

American Jews founded in 1912 to protect the civil, political,

and economic rights of American Jews. Like the ADL, it has

a regional structure and relies heavily on volunteers.

The issues in this case are therefore not merely of academic

concern to the American Jewish Congress.

Americans United for Separation of Church and State

is a national, nonsectarian public interest organization based

in Washington, D.C. that is committed to preserving the

1. This brief has been authored in its entirety by undersigned

counsel for the amici curiae. No person or ‘entity, other than the named

amici and their counsel, made any monetary contribution to the

preparation and submission of this brief.

2

constitutional principle of separation of church and

state. Since its founding in 1947, Americans United has

participated as a party or amicus in numerous cases before

the U.S. Supreme Court, federal courts of appeals, and state

supreme courts. Americans United is comprised of more than

75,000 members nationwide and maintains an active chapter

in the State of Colorado. The advocacy and legal work of

Americans United is aided by numerous volunteers, including

volunteer attorneys, across the country.

The Asian Law Caucus is a nonprofit, public interest

legal organization whose mission is to promote, advance,

and represent the civil rights of Asian-Pacific Islander

communities. Founded in 1972, the ALC is the nation’s oldest

Asian-Pacific Islander civil rights legal organization.

The ALC has provided legal services and community

education of affirmative action and discrimination,

represented individuals in discrimination suits, and conducted

legal and regional policy advocacy on affirmative action.

Bet Tzedek, “The House of Justice,” is a non-profit legal

services agency that, since 1974, has been providing free and

compassionate legal services to thousands of low-income

residents throughout Southern California. Bet Tzedek

provides these services to clients of all racial, religious and

ethnic backgrounds. Bet Tzedek relies heavily upon a network

of volunteer attorneys, paralegals and others to serve its

clients, and shares the concerns of other amici regarding the

impact of the Court of Appeals’ decision in this case.

The Human Rights Campaign (“HRC”) is the nation’s

largest gay and lesbian civil nghts organization, with over

400,000 members and volunteers nationwide. HRC is

devoted to fighting and ending discrimination on the basis

ta A ah ee ated Hehe me

ee acapmnptite. ta

3

of sexual orientation, and to protecting the basic civil

and human rights of gay, lesbian, and bisexual Americans.

To this end, HRC provides federal and state legislative,

regulatory and judicial advocacy, and media and grass roots

support on a range of issues and initiatives affecting gay,

lesbian and bisexual individuals.

The Jewish Council for Public Affairs (JCPA),

formerly the National Jewish Community Relations Advisory

Council, is an umbrella organization of 13 national and

122 local Jewish public affairs and community relations

agencies. Founded in 1944, JCPA is committed to the dual

mission of safeguarding the rights of Jews in the United States

and abroad and promoting a just society for all Americans.

Lambda Legal Defense and Education Fund is the

country’s oldest and largest legal organization dedicated to

advancing the civil rights of lesbians, gay men, bisexuals,

the transgendered, and people with HIV or AIDS, and has

often appeared before this Court. Lambda Legal’s work

includes litigation, policy advocacy, and public education

efforts on matters of significant public concern, including

harassment of minorities, religious freedom and rights of free

speech.

Lambda Legal often takes positions that are initially

unpopular but, over time, take root in the broader society.

Lambda Legal joins this amicus brief because the decision

below threatens the vital contributions of public interest

organizations to public debate on important issues of the day

and is contrary to core First Amendment principles.

The National Asian Pacific American Legal

Consortium (NAPALC) is a national non-profit, non-partisan

4

organization whose mission is to advance the legal and civil

rights of Asian Pacific Americans. Since 1994, NAPALC,

with the assistance of its Affiliates, has published an annual

report called the Audit of Violence Against Asian Pacific

Americans. NAPALC uses community education, advocacy

and technical assistance to combat hate crimes. NAPALC

has an interest in the current case because its outcome has a

bearing on all public interest organizations who seek pro bono

legal assistance for victims of hate crimes.

The National Association for the Advancement of

Colored People (“NAACP”) is a non-profit membership

corporation, chartered by the State of New York, tracing its

root to 1909. The NAACP has in excess of 500,000 members

and over 2,200 units in the United States and overseas.

As the nation’s oldest and largest civil rights organization,

its principal aims and objectives are clearly set forth in its

Constitution as follows: To insure the political educational,

social and economic equality of minority group citizens of

the United States; to remove all barriers of racial

discrimination through democratic processes; to seek

enactment and enforcement of federal, state and local laws

securing civil rights; to inform the public of the adverse

effects of racial discrimination and to seek elimination;

to educate persons as to their constitutional rights and to take

all lawful action to secure the exercise thereof, and, to take

any other lawful action in furtherance of these objectives

consistent with the Articles of Incorporation.

The NAACP has used the legislature and the courts,

among others, as primary instruments in its struggle to make

real the rights that the Constitution provides for those within

the borders of the United States.

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In regard to the First Amendment right to freedom of

speech and freedom of association, the NAACP has litigated

significant cases in the more distant past and continues to do

so in the present.

The National Partnership for Women and Families,

founded in 1971, formerly known as the Women’s Legal

Defense Fund, is a national advocacy organization that

develops and promotes public policies to help women

achieve equal opportunity, quality health care, and economic

security for themselves and their families. The National

Partnership has a longstanding commitment to equal

opportunity for women and to monitoring the enforcement

of antidiscrimination laws. The National Partnership has

devoted significant resources to combating sex and race

discrimination and has filed numerous briefs amicus curiae

in the federal circuit courts of oe to advance women’s

opportunities.

NOW Legal Defense and Education Fund is a leading

national non-profit civil rights organization that has used the

power of the law to define women’s rights for over 30 years.

NOW Legal Defense frequently appears as counsel and as

amicus in federal and state courts nationwide on behalf of

individuals who have experienced sex discrimination. As a

public interest law firm, NOW Legal Defense frequently

relies on volunteer attorneys to assist in these efforts.

Accordingly, we are very concerned about the implications

for our work of the Court of Appeals’ decision to uphold a

result that jeopardizes free expression and contravenes core

First Amendment values.

Public Counsel is the nation’s largest public interest pro

bono law firm. Established in 1970, Public Counsel is

6

dedicated to advancing equal justice under law by delivering

free legal services to indigent and under-represented children

and adults throughout Los Angeles County, ensuring that

other community-based organizations serving this population

have legal support, and mobilizing the pro bono resources

of the community’s attorneys and law students. With help

from over 20,000 volunteers, Public Counsel has assisted

hundreds of thousands of clients and delivered over a quarter

of a billion dollars worth of free legal services to the poor.

Public Counsel frequently advances its goals through public

advocacy on behalf of clients, both in the media and before

governmental bodies. Public Counsel is concerned that

holding public interest organizations liable for defamation

and subjecting them to large punitive damage awards based

on their advocacy, without requiring proof of actual malice,

will seriously chill these organizations in the exercise of their

First Amendment rights.

The Southern Poverty Law Center (“The Center”),

founded in 1971, is a nationally recognized leader in the area

of civil rights litigation. The Center has litigated numerous

pioneering civil rights cases on behalf of women, minorities,

factory workers, poor people in need of health care, mentally

ill persons, children in foster care, prisoners facing barbaric

conditions of confinement and many other victims of

injustice. The Center has litigated and won six landmark civil

rights lawsuits before this Court.

The Violence Policy Center (“VPC”) is a national

nonprofit organization working to reduce firearms violence

through research, education and advocacy. The Violence

Policy Center is at the forefront of organizations working to

reduce firearms violence in our nation. To this end, VPC

analyzes a wide range of current firearms issues and provides

Harte wad ct 2k, hl nat hee bean AMIE STE a

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information to policymakers, journalists, scholars, public

health professionals, grassroots advocates, and members of

the general public. Of particular relevance to this case, the

Violence Policy Center’s Litigation Project initiates and

participates in litigation in support of its mission. With a

staff of one, the Violence Policy Center’s Litigation Project,

established in March 2001, relies heavily on representation

by pro bono counsel. For example, the Violence Policy Center

was represented by pro bono counsel in Violence Policy

Center v. Ashcroft, No. 1:01CV01209 (D.D.C. 2001), in

which the VPC was a plaintiff, and in United States v. Thomas

Lamar Bean, 537 U.S. 71 (2003) in which the Violence Policy

Center participated as amicus.

SUMMARY OF ARGUMENT

This case presents profoundly important questions

concerning the constitutionality of a large punitive damages

award against a public interest organization. In New York

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

that civil judgments, like criminal prosecutions, can chill and

prevent speech. The Court declared: “What a State may not

constitutionally bring about by means of a criminal statute

is likewise beyond the reach of its civil law of libel. The fear

of damage awards . . . may be markedly more inhibiting than

the fear of prosecution under a criminal statute.” Jd. at 277.

But stifled speech is precisely what will result from the

opinion of the United States Court of Appeals for the

Tenth Circuit, over the dissent of Judge Hartz, which upheld

a $10.5 million judgment against a national civil rights

organization, the Anti-Defamation League (ADL). Supreme

Court review in this case is important because this case raises

several important issues, including what constitutes speech

8

of “public concern.” The Tenth Circuit emphasized that the

speech at issue was not of “public concern” in large part

because it was subsequently found to be false. Quigley v.

Anti-Defamation League and Saul Rosenthal, 327 F.3d 1044,

1059-1062 (10" Cir. 2003). The Tenth Circuit’s analysis,

however, confuses the issue of whether a statement is of

public concern with distinct inquiries as to the identity of

the parties and the truth of the statements. This Court should

grant review because the Tenth Circuit’s decision conflicts

with prior decisions of this Court and deepens a conflict

among the circuits concerning the determination of whether

speech involves a matter of public concern.

The question of what constitutes a matter of public

concern arises in many areas of First Amendment law under

tests articulated by this Court. See, e.g., Bartnicki v. Vopper,

532 U.S. 514 (2001) (no liability for the media for

broadcasting a tape of an illegally intercepted and recorded

call because it involved a matter of public concern and

because the media did not participate in the illegality);

Connick v. Myers, 461 U.S. 138 (1983) (the First Amendment

protects speech by government employees only if it involves

a matter of public concern); Dun & Bradstreet, Inc. v.

Greenmoss Builders, Inc., 472 U.S. 749 (1985) (defamation

liability turning on whether a matter is of public concern).

Because there are myriad circumstances in which the issue

presents itself, this Court should grant certiorari to clarify a

question that frequently arises in litigation and which has

created great uncertainty: how are courts to determine if

speech involves a matter of public concern?

Amici public interest organizations submit this brief in

support of certiorari because of the potentially devastating

effects the Tenth Circuit’s decision could have if it is not

overturned. If the verdict in this case is not reviewed by this

a ee

2 Pipaiie len Sieben}

9

Court (and is not subsequently reversed), it will have an

enormous chilling effect on the expressive activities of public

advocacy groups that have historically been afforded

First Amendment protection. Indeed, liability for such

expression strikes at the very heart of the First Amendment.

CERTIORARI SHOULD BE GRANTED TO CLARIFY

WHEN SPEECH IS OF “PUBLIC CONCERN” AND TO

RESOLVE THE CONFLICTS BETWEEN THE TENTH

CIRCUIT’S DECISION AND RULINGS BY THIS

COURT AND OTHER CIRCUITS

A. The Speech in this Case Clearly Involved a Matter of

Public Concern

The Tenth Circuit upheld the large punitive damage

award returned by the jury in this case on the ground that

statements regarding a federal lawsuit about bigotry,

anti-Semitism, and potentially criminal conduct were not of

general public concern. Although this Court has not provided

a clear definition of “matters of public concern,” it has

indicated that this phrase refers to matters of legitimate

interest to the public. See, e.g., Bartnicki, 532 U.S. at 534

(denying liability because labor-management negotiations for

schools are of interest to the public and thus a matter of public

concern). In Connick v. Myers, 461 U.S. at 146, this Court

explained that “speech touches a matter of public concern

[when] . . . itcan be fairly considered as relating to any matter

of political, social, or other concern to the community.”

The speech here certainly touched upon a matter of public

importance. The statements by appellant Saul Rosenthal that

were the basis for the defamation and false light liability

concerned the lawsuit that the Aronsons had filed against

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the Quigleys in federal court. The Wiretap Act liability arose

from the speech set forth in the complaint itself. The suit

alleged that the Quigleys had deprived the Aronsons of their

constitutional rights based on their race and religion.

The statements that were the basis for liability related to

harassment based on race and religion, a topic of obvious

great social significance. As Judge Hartz powerfully observed

in his dissent: “I would have thought that the social concern

of our day is bigotry. Surely faith-based intolerance,

particularly when combined with threats of violence, is a

matter of concern to the community at large.” Quigley, 327

F.3d at 1076 (emphasis in original).

Moreover, there is no doubt that comments about a

pending lawsuit, particularly one regarding allegations of

discrimination based on race and religion, should be deemed

to be matters of public concern. As this Court has previously

noted, “[t]he operation of the courts .. . [is a matter] of the

utmost public concern.” Landmark Communications, Inc. v.

Virginia, 435 U.S. 829, 839 (1978). Furthermore, the

Aronsons and Quigleys each had made reports to the local

police concerning each other’s conduct, and courts have

found that “when police are called, a private disturbance loses

much of its private nature.” Sheetz v. The Morning Call, 946

F.2d 202, 207 (3d Cir. 1991).

11

B. The Panel’s Narrow Definition of Matters of Public

Concern Raises Important Issues and Conflicts with

Prior Decisions of this Court and those of Other

Circuits

The Tenth Circuit held that to be of public concern the

speech at issue had to have been true or the speaker must

not have been negligent in failing to discover its falsity.’

This holding conflates very distinct questions: Is the speech

true? Is the necessary mental state for liability present?

Is the matter of public concern? No decision of this Court

ever has held that the determination of the latter is based on,

or even influenced by, the other questions.

The panel’s approach is at odds with decisions of this

Court holding that there are different standards for liability

for defamation depending upon whether statements pertain

to matters of public concern. See, e.g., Dun & Bradstreet,

Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758-59 (1985)

(articulating the importance of the inquiry as to whether

speech is of public concern in defamation actions). If the

panel’s approach were left intact and followed, then no

statement in any defamation case ever could be deemed to

2. The Tenth Circuit also held that speech cannot be a matter of

public concern if it occurs between private parties. This holding also

gives rise to an issue worthy of certiorari. No court has ever held

that speech is of public concern only if it pertains to public entities

or private businesses whose conduct affects the public. Quite the

contrary, this Court often has ruled that speech about individuals

can be of public concern. See Curtis Publishing Co. v. Butts, 388

U.S. 130 (1967) (statements about a football coach were of public

concern); Associated Press v. Walker, 338 U.S. 130 (1967) (statements

about alleged racist activities of former army general were of public

concern); Gertz v. Welch, 418 U.S. 323 (1974) (statements about a

lawyer’s conduct were of public concern).

12

be of “public concern” because defamatory speech, by

definition, is false. Judge Hartz expressed this fundamental

point well in his dissent: “If only true statements could be

matters of public concern, Colorado’s public concern doctrine

would be an empty gesture, because true statements can never

be the basis for a defamation cause of action.” Quigley, 327

F.3d at 1075 (emphasis in original). See also Gertz v. Welch,

418 U.S. at 333 n.4 (“It would undermine the rule [requiring

proof of knowing or reckless falsity] to permit the factual

falsity of a statement to determine whether or not its publisher

is entitled to the benefit of the rule.’”’)

Moreover, there is a split among the circuits concerning

whether recklessly false statements can be deemed a matter

of public concern. Contrary to the Tenth Circuit’s approach,

several circuits have held that the falsity of the statement is

a distinct issue from whether it is a matter of public concern.

The Fifth Circuit, for example, has declared that

“the accuracy of the speech ... [does not] play[] a role in

determining whether the expression involves a matter of

public concern.” Denton v. Morgan, 136 F.3d 1038, 1043

(5" Cir. 1998); see also Victor v. McElveen, 150 F.3d 451,

456-57 (5" Cir. 1998). The First Circuit likewise has held

that “the mere fact that statements were erroneous does not

remove them from the Constitution’s protection. .. . To deny

protections to false statements negligently made would chill

discourse altogether.” Brasslett v. Cota, 761 F.2d 827, 844

(1* Cir. 1985).

Similarly, the Second Circuit, in a case involving facts

similar to this matter, found that the accuracy of the statement

is a distinct issue from whether it involves a matter of public

concern. Flamm vy. American Association of University

Women, 201 F.3d 144 (2d Cir. 2000), involved a suit against

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13

a public interest organization for statements it made

concerning gender discrimination. The court found that the

statements involved matters of public concern even if they

were false. Jd. at 150.

The Ninth Circuit has expressly recognized the conflict

among the circuits on this issue, noting that the “Circuits

appear to be split on whether, in light of Connick, recklessly

false statements are per se unprotected by the First

Amendment.” Johnson v. Multnomah County, 48 F.3d 420,

423 (9" Cir. 1995). Compare Denton v. Morgan, 136 F.3d

1038, 1043 (5" Cir. 1998); Brasslett v. Cota, 761 F.2d 827,

841 (1 Cir. 1985); Flamm v. American Association of

University Women, 201 F.3d 144 (2d Cir. 2000); with Wulf v.

City of Wichita, 883 F.2d 842, 859 n.24 (10" Cir. 1989)

(“[p]resumably, the issue of the truth or falsity of the

statements at issue is relevant to both the threshold public

concern analysis and the balancing required under Pickering.

It is difficult to see how a maliciously or recklessly false

statement could be viewed as addressing a matter of public

concern.”); Brenner v. Brown, 36 F.3d 18, 20 (7" Cir. 1994)

(cited by the Ninth Circuit in Johnson as creating a circuit

split; noting that “even if the speech . . . involved a matter

of public concern, an employee’s speech is not protected

where it is made with a reckless disregard for the truth”).

The Tenth Circuit’s opinion in this case will create a

chilling effect on the manner in which public interest groups

advance their causes. Many of the most critical public

concerns of our day are discussed and understood primarily

through the lens of the experiences of otherwise private

individuals. Race, gender, and faith-based discrimination,

abortion, child abuse, police misconduct, and health care,

for example, are given importance in the public debate

14

because of their impact on the lives of individuals. Public

interest groups, including amici, rely on people, such as the

Aronsons, to come forward and make public their personal

experiences. Although not every allegation advanced by an

aggrieved person ultimately will be determined to be legally

actionable or factually true, the underlying issues may be

issues of public concern that are entitled to First Amendment

protection. Speech about such events, and particularly about

litigation concerning such events, is an important avenue

through which public interest groups like amici advance their

causes.

This Court should grant certiorari to resolve the

important conflict among the circuits and clarify the standard

for determining whether a statement involves a matter of

public concern.

C. The Public Concern Doctrine and the Actual Malice

Standard Insure that the Proper Balance is Struck

Between Protected Speech and Liability for the

Dissemination of False Information

The opinion of the Tenth Circuit replaces the actual

malice standard articulated by this Court in New York Times

v. Sullivan, 376 U.S. 254 (1964), for imposing punitive

damages with an inquiry concerning only whether the

statements were ultimately found to be false. That is, the

conflating of two separate issues—the authenticity of the

statement and the status of the statement as one of public

concern—will result in the obliteration of the actual malice

standard for determining the propriety of imposing punitive

damages. Once the statement is found to be false and

therefore necessarily found not to be one of public concern,

punitive damages can be imposed without a finding of actual

15

malice. The injustice of that result is underscored in this case,

where the jury returned an $8.5 million punitive damages

award against a public interest organization, whose core

mission includes exposing allegations of discrimination to

public scrutiny, for merely disseminating information about

pending litigation.

To meet the standard of actual malice, the defendant must

have known that the allegedly defamatory material was false,

or published it with a reckless disregard of whether it was

false. New York Times v. Sullivan, 376 U.S. at 280; Straw v.

Chase Revel, Inc., 813 F.2d 356 (1987); Dalbec v.

Gentleman's Companion, Inc., 828 F.2d 921 (2d Cir. 1987)

(“A finding of malice must be based on clear and convincing

evidence that ‘the defendant in fact entertained serious doubts

as to the truth of his publication,’ or, in the alternative, know

if its falsity.”). The actual malice standard insures the award

of punitive damages only under certain clearly defined

circumstances and dissolves any concern that an individual

or group might seek to take advantage of the protection

afforded by the public concern doctrine. To the extent the

public concern doctrine might create an opportunity either

for the attack of another’s character or for the dissemination

of false information with impunity, the actual malice standard

creates a zone of protection for the victim of a defamatory

statement and simultaneously insures that the publisher of a

false statement on a matter of public concern is punished for

wrongdoing only if it is purposeful.

The actual malice standard thus not only punishes the

author of the defamatory statement commensurate with his

culpability—thereby serving as an effective tool in preventing

purposeful defamation—but also preserves the special nature

of punitive damages, which historically have been awarded

16

only in narrow and well-defined circumstances in order to

punish the wrongdoer for culpable conduct. The panel

opinion ignores the special nature of punitive damages,

particularly in defamation cases where, as here, constitutional

restraints on such damages may be present, and permits their

imposition in this case without the necessary showing of

actual malice. |

CONCLUSION --

Amici are deeply concerned about the effects large

damage awards can have on their activities. The Tenth

Circuit’s approach to defining what constitutes matters of

public concern will expose public interest organizations, such

as amici, to a serious risk of significant liability for their

speech activities in conflict with protections historically

afforded these organizations by the First Amendment.

For these reasons, amici urge this Court to grant certiorari

and clarify this significant issue of First Amendment law.

Respectfully submitted,

TERESA WYNN ROSEBOROUGH ERWIN CHEMERINSKY

DeBoRAH M. DanziG Counsel of Record

SUTHERLAND ASBILL & BRENNAN LLP CatHERINE Fisk

999 Peachtree Street, N.E. UNIVERSITY OF SOUTHERN

Atlanta, GA 30309 CALIFORNIA Law SCHOOL

(404) 853-8000 699 Exposition Blvd.

Los Angeles, CA 90089

(213) 740-2539

Counsel for Amici Curiae