# Amicus Curiae Brief — Anti-Defamation League v. Quigley

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0730%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 540 U.S. 1229

## Text

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

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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

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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.

5

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

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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

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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

10

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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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0730%3A5. Public record. Not legal advice.