Petition for Writ of Certiorari — Republican National Committee v. Pritt

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011328 mar 1 1 2002

No. Ol-

a OID OF Tit apr

IN THE

Supreme Court of the Gnited States

REPUBLICAN

NATIONAL COMMITTEE,

Petitioner,

Vv.

CHARLOTTE J. PRITT,

Respondent.

ON PETITION FORA

WRIT OF CERTIORARI TO THE

WEST VIRGINIA SUPREME COURT OF APPEALS

PETITION FOR A WRIT OF CERTIORARI

MICHAEL E. TONER

Chief Counsel

THOMAS J. JOSEFIAK

Counsel

CHARLES R. SPIES

Deputy Counsel

REPUBLICAN NATIONAL

COMMITTEE

310 First Street, S.E.

Washington, D.C. 20003

(202) 863-8638

Of Counsel

BOBBY R. BURCHFIELD

Counsel of Record

JASON A. LEVINE

COVINGTON & BURLING

1201 Penncylvania Ave., N.W.

Washington, D.C. 20004-2401

(202) 662-6000

Attorneys for Petitioner

QUESTION PRESENTED

Did the West Virginia Supreme Court of Appeals

apply an incorrect standard for reviewing entry of summary

judgment against the defamation claims of respondent, a

candidate for Governor of West Virginia and a public figure,

by failing to make an independent determination whether

respondent had come forward in opposition to a well-

supported motion for summary judgment with clear and

convincing evidence of actual malice, as required by New

York Times Co. v. Sullivan, Anderson v. Liberty Lobby, Inc.,

and other decisions of this Court?

PARTIES TO THE PROCEEDING

and the West Virginia State Victory Committee. Each

defendant is an unincorporated political association. The

National Republican Senatorial Committee and the West

Virginia State Victory Committee will be filing a separate

Petition for a Writ of Certiorari.

ill

TABLE OF CONTENTS

Page

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PARTIES TO THE PROCEEDING ..0......ccccccscccescesceeeceeeees ii

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8 REAR TEAR OTT ONE l

CONSTITUTIONAL PROVISION INVOLVED .............. 3

SPAR URINE CO BMI CRIN oo cciniccscectsscnncseseoccsnsenesoonasoas 3

The Facts Giving Rise to this Case ...0.......ccccccccecseeseeeees +

Proceedings in the Trial Court..................c.0sssscesscsossssees 6

Proceedings in the Supreme Court of Appeals.............. 8

REASONS FOR GRANTING THE WRIT ....0........ccc000000- 12

I. THE DECISION BELOW IS CONTRARY

TO THIS COURT’S CLEAR RULINGS ON THE

ROLE OF APPELLATE COURTS IN PUBLIC

FIGURE DEFAMATION CASEG...........ccccccccsseeseeeeeees 12

A. In Public Figure Defamation Cases, the First

Amendment Requires Independent Appellate

Review To Assure That the Record Contains Clear

and Convincing Evidence of Actual Maiice............ 13

B. The Requirement for Independent Review To

Assure That the Record Contains “Clear and

Convincing” Proof of Actual Malice Applies at

the Summary Judgment Stage of a Public Figure

MON CRE a ccsessscseersassttessescen....,.. 16

C. The Supreme Court of Appeals Failed To Review

the Record and Failed To Apply the “Clear And

Convincing” Standard of Proof for Actual

I ssncessrstesenanssnstnpnhianapsansastvaasiseerce,.., 18

II. THE DECISION BELOW CONFLICTS WITH

RULINGS FROM THE VAST MAJORITY OF

STATE COURTS AND F EDERAL COURTS

an 19

III. IF NOT CORRECTED, THE DECISION BELOW

WILL HAVE PROFOUND CONSEQUENCES

FOR POLITICAL SPEECH IN WEST VIRGINIA

AND ADJACENT STATES w.....cccccscscseescseoeeecc. 24

NN sinicicctnidbinaiidekanisnaame ce te 28

TABLE OF AUTHORITIES

CASES

Page

Anderson v. Liberty Lobby, 477 U.S. 242 (1986).......... passim

Anderson v. McCotter, 100 F.3d 723 (10th Cir. 1996) ........ 23

Bartimo v. Horsemen's Benevolent & Protective

Ass'n, 771 F.2d 894 (Sth Cir. 1985), cert. denied,

BTS TEs BRE Urey sscsassaricctiasanseinneniaceibdakeaisenseanidatss 23

Bose Corp. v. Consumers Union of the U.S., Inc.,

4GG UB. SES CFG) cecccscrscrsssactescssicnssasinaase 15, 16, 19, 21

Buckley v. Valeo, 424 U.S. 1 (1976) ........cccccceeeee 2, 24, 26, 27

Carr v. Bankers Trust Co., 546 N.W.2d 901 (Iowa

TSP IIID scatnorndnnaesseniintshsiusciiielioapsalansniaamieldsaaainalananiasle ta 21

Chesapeake Publ'g Corp. v. Williams, 661 A.2d 1169

CONG, Fe iistccsnnisisienscsiiecinansccniieiegea nee 22

Cobb v. Time, Inc., No. 00-5159, 2002 WL 112477

CEU CAE. FRA, Fie Be is enieiscisisiscinsnndtarntidasinsencicibaaennataai 23

Colorado Republican Fed. Campaign Comm. v. FEC,

SE 6s ais Ge IE sorsinciinicdnccmnheidaieaoniaibinencaiians 24

Contemporary Mission, Inc. v. New York Times Co.,

842 F.2d 612 (2d Cir.), cert. denied, 488 U.S.

CE CTS) cinsncnsinnininsoninronsnehinssanenaaieaailemeamamanaat 23

Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975)........0.00008 y

Curtis Publ'g Co. v. Butts, 388 U.S. 130 (1967).............00 14

Dababnah v. West Va. Bd. of Med., 47 F. Supp.2d

FIED. W VG. Fe i icinetcttscstsararnsn aati 10

Dale v. Ohio Civil Serv. Employees Ass'n, 567

N.E.2d 253 (Ohio), cert. denied, 501 U.S. 1231

(EDIE ) cccsssesssonsisnaseniesiniiagitieniiaiiabaimimias et ian tai 22

Deaver v. Hinel, 391 N.W.2d 128 (Neb. 1986).................... 22

Diesen v. Hessburg, 455 N.W.2d 446 (Minn. 1990),

cert. denied, 498 U.S. 1119 (1991) ooccccccccccccccccsecceseeees. 22

DiLeo v. Koltnow, 613 P.2d 218 (Colo. Ree 21

Dombey v. Phoenix Newspapers, Inc., 724 P.2d 562

TED. TED cccnsensncsincsnstinseinsiniuititanisaan anne oe 21

Eu v. San Francisco Cty. Democratic Cen. Comm.,

GaP US. 208 Ci iscisviemiidanaiee 25

Fitzgerald v. Tucker, 737 So.2d 706 (La. aD aesilbialisahiicen 21

Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46

(ETI p ocercseseesvessenssasnnaiiaiaananiealaaaeeena wescececocecescececeese 2

Gertz v. Robert Welch, Inc., 418 U.S. 323 | nee 14

Greenbelt Coop. Publ'g Ass'n, Inc. v. Bresler, 398

LB. 6 (BG TED ccccencitnensitictinnnsiiaicneie teen 20

Guilford Transp. Indus., Inc. v. Wilner, 760 A.2d 580

ee EM Re Sy ee 20, 21

Gulf Publ'g Co., Inc. v. Lee, 434 So.2d 687 (Miss.

RIGS) av<ccrvvensevescnccussisiitinsititesiiniiasiitaaiala anna 22

Harte-Hanks Communications, Inc. v. Connaughton,

GE UG. G67 (2G ascetics ee 16

Herbert v. Oklahoma Christian Coalition, 992 P.2d

548 CORDS. FOGED vecnncincevssinishitaiitcliiaada ees 22

Journal-Gazette Co., Inc. v. Bandido's, Inc., 712

N.E.2d 446 (Ind.), cert. denied, 528 U.S. 1005

( EFIT) ~.csecesonennissenenesienicvateelionas uuaaiaananan 20, 21

Vii

Kanaga v. Gannett Co.. Inc., 687 A.2d 173 (Del.

BF BO) 3aosesaasccssseseesessesenssseeseeessssesestentteesstecereeeeeecees....... 21

Levan v. Capital Cities/ABC, Inc., 190 F.3d 1230

(11th Cir. 1999), cert denied, 528 U.S. 1198

(BIBT) snnannsossscscoseseocsssncsnssseneseaseencesseesesdasesarsaseeeeeeace... 23

Levinsky’s, Inc. v. Wal-Mart Stores, Inc., 127 F.3d

N22 (18t Cir: 1997) ........sssccccssssssssseseseseesssseeseessossssscs... 23

Liberty Lobby, inc. v. Rees. 852 F .2d 595 (D.C. Cir.

1988), cert. denied, 489 U.S. 1910 (1989). 23

Lyons v. Rhode Island Pub. Employees Council, 559

A.2d 130 (R.L.), cert. denied, 493 U.S. 892

(SPEED ssccncssincssnnnssantscnenssscesnosnnesssessessssonesenasessesscecce.... 22

MacGuire vy. Harriscope Broad. Co., 612 P.2d 830

SOP BED asccesssccsescassenosenesessssnientenitesoneanieapcincese 22

Mahoney v. Adirondack Publ'g Co., 517 N.E.2d 1365

shah 22

Marcone v. Penthouse Int'l Magazine for Men, 754

F.2d 1072 (3d Cir.), cert. denied, 474 U.S. 864

CEFIS) nssanscossnssonssccesenssnnsemachensneenanseensesacesanasesaeeeee....,. 23

Margoles v. Hubbart, 760 P.2d 324 (Wash. 1988).............. 22

Masson v. New Yorker Magazine, Inc., 501 U.S. 496

OPTED ciiennnietninintnintathirinintienttinasiasias cis 11, 18,19

McAvoy v. Shufrin, 518 N.E.2d 513 (Mass. Re 22

McCoy v. Hearst Corp., 727 P.2d 711 (Cal. 1986),

cert. denied, 481 U.S. 1041 SE ee 21

Miami Herald Pubi g Co. v. Ane, 458 So.2d 239 (Fla.

HOPED <ninscventesinensnsowsentocsenssiessuessesnasensasseeiaiosincessce.... 22

Miami Herald Publ g Co. v. Tornillo, 418 U.S. 241

GO i cinitenceias sedate eteneetnesocssadnassinnsaseee...... y

Mills v. Alabama, 384 U.S. 214 RE ee 24

Vili

Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971).......... 16, 24

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

Ia a seltinccscsihlaanassealiasispnalbtasictieilintasesiiabinbeligddiiniaada. passim

Newton v. NBC, Inc., 930 F.2d 662 (9th Cir.), cert.

denied, 502 U.S. 866 (1991) ........cccccccccccsccescosecsossccersees 23

Peeler v. Spartan Radiocasting, Inc., 478 S.E.2d 282

(S.C. 1996), cert. denied, 520 U.S. 1275 (1997)........... 22

Pemberton v. Birmingham News Co., 482 So.2d 257

AER NE AS ER ee a 21

Philadelphia Newspapers, Inc. v. Hepps, 475 U.S.

Te Se dines laietbiibiscsthsiiensanisdaceiaitetaiphenintasaicuaislasben 3,27

Pritt v. Republican Nat’l Comm., et al., 557 S.E.2d

I oe passim

Pritt v. Republican Nat’l Comm., et al.,

No. 97-C-380(V) (W. Va. Cir. Ct. Fayette Cty.

BO es Mc inthasdeshiasinttecnamisciicidnia nie aie passim

Reuber v. Food Chem. News, Inc., 925 F.2d 703

(4th Cir.), cert. denied, 501 U.S. 1212 (1991)... 23

Rouch v. Enquirer & News of Battlecreek Michigan,

487 N.W.2d 205 (Mich. 1992), cert. denied, 507

ais SNe OI icshciidcciescabndeshci RR 22

Secrist v. Harkin, 874 F.2d 1244 (8th Cir.), cert.

denied, 493 U.S. 933 (1989) .o....ccccccsccscssecsessceseees 22, 23

Stromberg v. California, 283 U.S. 359 (1931) ...c.cccccccsesseeee 24

Thomson Newspaper Publ'g, Inc. v. Coody, 896

S.W.2d 897 (Ark.), cert. denied, 516 U.S. 1008

CID sscesicnniniieniiiciatjesigealtbaiiniititi iat aieile aad ah a. 21

Time, Inc. v. Pape, 401 U.S. 279 (1971) ...ccccccssscescscscessscesees 16

Torgerson v. Journal/Sentinel, Inc., 563 N.W.2d 472

CRUE, SE Pe innnccitiianiindiniacee re ees 22

Tucci v. Guy Gannett Publ'g Co., 464 A.2d 161 (Me.

SO Weta idaachliiselatiih Sstasasiiiddld diatunictacis seeks 21, 22

Turf Lawnmower Repair, Inc. vy. Bergen Record

Corp., 655 A.2d 417 (N.J. 1995), cert. denied,

RNA DEON iss seisrensactsssrcdnisesanscsscereesaseses,. 22

Turner v. KTRK Television, Inc., 38 S.W.3d 103

Pee I bert stdsiaeipaacaisssscsoccnnbedeaendinssasaiccadasicsaceaccss 3 21

Wanless v. Rothballer, 503 N.E.24 316 (Ill.), cert.

denied, 482 U.S. 929 SESE eee ee 21

Wiemer v. Rankin, 790 P.2d 347 (Idaho 1990) wee 21

Zacchini v. Scripps-Howard Broad. Co.,

GSS UB. SBE UGTT) vasscnsnsissoneisesnssansarasarnessacsassss..... 19, 20

CONSTITUTION

ay MI Boiss cdesecadsisnacenisineigsnscosascsoececc sonnets 3

STATUTES, RULES AND REGULATIONS

Ie Re MR lsc cdsacndecissacnanchcsnsiiaside essiieosacasesies oi l

U.S. Supreme Court Rule 13( __ SORES ae ]

W. Va. Code § 3-8-1166) .n..accc.scscsecssssocscsessssossasscssesssessseoesses,. 7

Oe WN PUI Os Wis bidenssssisstdsisnsansakadimssdiensssancsinee.sssessce cc. 8

Fs Fe Me PI RO csncseencsecsnisensoasansonssnccussscescessoeses. ce... 9

MISCELLANEOUS

Annenberg Public Policy Center, Issue Advertising in

the 1999-2000 Election Cycle (Feb. 1, y | ee 26

Brennan Center for Justice, Buying Time 2000:

Television Advertising in the 2000 Federal

Elections (2002) ......cccccccccssscsesese. 5 a 26

Kathleen Hall Jamieson, Everything You Think You

Know About Politics ... And Why You're Wrong

SETI sniSeisaieniianetcdlbsa caitlin Uae aadetah se ibaadaconainialas 27

Warren Communications News, Television & Cable

FE I Gt Pictrissevninninimntaitictniadnibadiceanteiadidinds 26, 27

W. Va. J. Hse. of Del. 1624-25 (Mar. 10, 1989)... 6

W. Va. J. Hse. of Del. 545-46, 638, 665-67 (Feb. 11,

PIED su:siniiccscnsttentadsandelansiintiisaseciaebubiandlaseudmanedaaaianciae 6

W. Va. J. of the Senate 3 (Mar. 8, 1991)... eecsssssteeeees 6

W. Va. J. of the Senate 150-51 (Jan. 24, 1991)... 6

W. Va. J. of the Senate 481-82 (Feb. 15, 1990)... 6

W. Va. Senate Bill 531, Comm. Print 89R1025

ERRE, Be: SIE cissnsininiasabelanintgsesstichieiacdenetyaaianiieioion 6

tec iene ecient aie

PETITION FOR A WRIT OF CERTIORARI

The Republican National Committee (“RNC”)

respectfully petitions this Court for a Writ of Certiorari to

review a decision of the West Virginia Supreme Court of

Appeals.

OPINIONS BELOW

The decision of the West Virginia Supreme Court of

Appeals is reported at 557 S.E.2d 853. Appendix (“App.”)

la. The earlier ruling of the Circuit Court of Fayette County,

West Virginia, entering summary judgment on behalf of the

RNC is unpublished but appended hereto. App. 24a.

JURISDICTION

The decision that is the subject of this Petition was

entered on December 12, 2001, and this Petition is timely

filed. S. Ct. Rule 13(1). The Supreme Court of Appeals

rendered a judgment involving an issue of central importance

to defamation suits brought by public figures: the appellate

court's duty, in reviewing a defamation suit, to conduct its

own “independent review” to assure that the record contains

clear and convincing evidence of actual malice, before

allowing the suit to proceed to trial. This issue implicates the

First Amendment, as applied to the States by way of the

Fourteenth Amendment. This Court’s jurisdiction rests on 28

U.S.C. § 1257(a).

If not reversed, the trial court's entry of summary

judgment would have ended this litigation. Similarly,

resolution by this Court of the issue presented in the manner

advocated by the RNC will end this litigation. Moreover, the

availability and proper use of summary judgment is

especially important in defamation cases because the very

threat of a burdensome, expensive, and uncertain jury trial in

a defamation case has a propensity to suppress speech. See

New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964).

The likely effect of denying this Petition would be to chill the

exercise of First Amendment rights by the RNC and all other

political speakers in West Virginia until the Supreme Court

of Appeals’ erroneous view of summary judgment in

defamation cases is ultimately corrected by this Court.

This is a case in which “reversal of the state court on

the federal issue would be preclusive of any further litigation

on the relevant cause of action” and refusal of immediate

review by this Court “might seriously erode federal policy.”

Cox Broad. Corp. v. Cohn, 420 U.S. 469, 482-83 (1975)

(exercising jurisdiction over Georgia Supreme Court decision

that reversed summary judgment and remanded for trial after

upholding “rape shield” law against First and Fourteenth

Amendment challenge). Because respondent here has

identified no evidence of actual malice by the RNC, a

reversal of the judgment would result in a reinstatement of

summary judgment on all of respondent's claims, and thus

preclude further litigation. Moreover, a refusal of immediate

review by this Court would “seriously erode” the federal

policy of protecting core political speech, “an area of the

most fundamental First Amendment activities.” Buckley v.

Valeo, 424 U.S. 1, 14-15 (1976). Indeed, this Court has

observed that “[a]djudicating the proper scope of First

Amendment protections has often been recognized by this

Court as a ‘federal policy’ that merits an exception to the

general finality rule.” Fort Wayne Books, Inc. v. Indiana,

489 U.S. 46, 55 (1989).

This Court exercised jurisdiction in a_ similar

procedural setting in Miami Herald Publishing Co. v.

Tornillo, 418 U.S. 241 (1974). There, a candidate for public

office sued a newspaper for violating a state statute that

purportedly guaranteed him a right of reply to an editorial.

The trial court invalidated the statute on First Amendment

grounds, but the Florida Supreme Court reversed and

remanded for trial. This Court exercised jurisdiction, ruling

that “it would be intolerable to leave unanswered” an

eT a NE ea

important First Amendment question pending a trial because

“an uneasy and unsettled constitutional posture” can only

harm free speech. /d. at 247 n.6. See also Anderson v.

Liberty Lobby, 477 U.S. 242 (1986) (discussed below at

pages 16-18). That conclusion applies equally here. The

threat to the First Amendment rights of political speakers

posed by the decision below supports review by this Court.

See Cox, 420 U.S. at 485-86 (refusing to delay “final

decision of the First Amendment claim until after trial”).

CONSTITUTIONAL PROVISION INVOLVED

The First Amendment to the United States

Constitution provides, in relevant part, that “Congress shall

make no law ... abridging the freedom of speech, or of the

press. ...” U.S. Const. amend. I.

STATEMENT OF THE CASE

This case strikes at the heart of the First Amendment.

In reversing the trial court’s entry of summary judgment on

the defamation claims of respondent Charlotte Pritt, the

Supreme Court of Appeals misunderstood or ignored the

Without addressing the basis for jurisdiction, this Court granted

certiorari in a procedural posture similar to this case in Philadelphia

Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986). There, the

Pennsylvania Supreme Court reversed a judgment against a private figure

plaintiff's defamation claims because the trial court did not give a

statutory jury instruction imposing on defendant the burden of proving its

Statements were true. /d. at 771. Although the Pennsylvania Supreme

Court remanded for a new trial, this Court granted certiorari and reversed,

ruling that plaintiffs bear the burden of proving falseness. /d. at 777. In

relevant part, the Court observed that the “common-law presumption”

embodied in the disputed jury instruction would impose a “chilling

effect” on defamation defendants that is “antithetical to the First

Amendment.” /d. As discussed herein, analogous constitutional

problems also infect the decision of the West Virginia court.

— 4

strict constitutional requirements governing its review.

Although this Court has repeatedly ruled in public figure

defamation cases that the First Amendment requires an

independent appellate determination of whether plaintiff

adduced clear and convincing evidence of actual malice, here

the Supreme Court of Appeals failed to conduct an

independent review of the record and failed to apply the

“clear and convincing” standard with respect to actual

malice. For these reasons, the decision below contravenes

settled First Amendment law, conflicts with rulings from the

vast majority of state courts and federal courts of appeals,

and threatens to stifle core political speech throughout the

State of West Virgitiia and adjacent States.

The Facts Giving Rise to this Case

Respondent Charlotte Pritt served in the West

Virginia House of Delegates from 1985 to 1989 and in the

State Senate from 1989 to 1993. Ms. Pritt ran unsuccessfully

for the office of Governor of West Virginia in 1992 and

1996. She admits to being a “public figure” for purposes of

this case. App. 9a.

In 1992, Ms. Pritt lost the Democratic gubernatorial

nomination to the incumbent, Gaston Caperton, who aired

advertisements criticizing a number of her votes as a state

legislator. During her 1996 gubernatorial primary campaign,

Ms. Pritt again faced advertisements aired by her opponent,

State Senator Joseph Manchin, criticizing those same votes in

the state legislature. Ms. Pritt won the Democratic

nomination for Governor on May7, 1996, and faced

Republican Cecil Underwood in the general election. App.

6a-7a.

From October 24 until Election Day, the West

Virginia State Victory Committee (“Victory Committee”)

aired radio and television advertisements commenting, again,

on the same votes that Ms. Pritt's Democratic opponents had

_ criticized during the 1992 and 1996 gubernatorial primary

\eampaigns. These advertisements were paid for by the

National Republican Senatorial Committee (“NRSC”),

which, in compliance with state law, had created the Victory

Committee as the formal sponsor of the spots.”

The television advertisement stated (App. 37a):

Behind Charlotte Pritt’s campaign smile is a liberal

voting record she can’t hide from. In the State

Senate, Charlotte Pritt proposed teaching first

graders about condoms. Surprised? You shouldn’t

be. Senator Pritt also voted to permit the sale of

pornographic videos to children. She even voted to

allow convicted drug abusers to work in our public

schools. Look behind the smile. Charlotte Pritt.

Wrong on the issues. Wrong for West Virginia.

The radio advertisement stated (App. 6a):

Behind Charlotte Pritt’s campaign smile is a liberal

voting record she can’t hide from. In the State

Senate, Charlotte Pritt proposed teaching first

graders about condoms. Surprised? You shouldn’t

be. Senator Pritt also voted to permit the sale of

pornographic videos to children. She even voted to

allow convicted drug abusers to work in our public

schools. If parents can’t trust Charlotte Pritt to

protect our children, think also of our veterans.

Charlotte Pritt voted against honoring the men and

women of West Virginia who fought in the Gulf

War. Senator Pritt voted to allow the burning of the

American Flag that our veterans fought so hard to

: The RNC neither created nor sponsored the advertisements

about Ms. Pritt, and neither the trial court nor the Supreme Court of

Appeals considered whether the RNC was a proper defendant.

defend. She even opposed requiring students to

begin their day with the Pledge of Allegiance. Look

behind the smile. Charlotte Pritt. Wrong on the

issues. Wrong for West Virginia.

The statements in the advertisements were based on

Ms. Pritt’s voting record as a West Virginia state legislator.’

Ms. Pritt lost the gubernatorial election.

Proceedings in the Trial Court

On October 31, 1997, Ms. Pritt filed her initial

Complaint, which she amended on October 26, 1998. The

Amended Complaint asserted four causes of action against

the RNC, the NRSC, and the Victory Committee

(collectively, “the Committees”). App. 26a. Count I alleged

that the Committees defamed Ms. Pritt through certain

Statements in the advertisements described above. Count II

alleged that through these statements the Committees

. The Committees contended, and the trial court found, that the

advertisements were true. The Supreme Court of Appeals did not address

this issue. Ms. Pritt: (1) sponsored a bill requiring public schools to teach

students from kindergarten through the twelfth grade about

“contraception” (W. Va. Senate Bill 531, Comm. Print 89R1025,

Mar. 20, 1989); (2) voted against an amendment banning the sale of “X”-

rated videotapes to minors (W. Va. J. of the Senate 481-82, Feb. 15,

1990); (3) voted against an amendment banning public schools from

employing any person who had been convicted of the use or possession

of controlled substances (W. Va. J. Hse. of Del. 1624-25, Mar. 10, 1989);

(4) voted against a Resolution to “honor” West Virginians “serving

America in Operation Desert Storm” (W. Va. J. of the Senate 150-51,

Jan. 24, 1991); (5) voted against a Resolution urging a federal

constitutional amendment to ban flag-burning (W. Va. J. of the Senate 3,

Mar. 8, 1991); and (5) voted against a bill requiring students to recite the

Pledge of Allegiance in the public schools unless they opted out of the

ceremony (W. Va. J. Hse. of Del. 545-46, 638, 665-67, Feb. 11, 1986).

violated W. Va. Code § 3-8-1 l(c), which imposes criminal

penalties for the publication of known falsehoods about a

candidate for public office. Count III asserted that two of the

Statements were defamatory per se. Count IV asserted a

claim for “false light” invasion of privacy. Ms. Pritt

demanded $2 million in compensatory damages and $10

million in punitive damages.

Discovery closed as scheduled on May 15, 1999, with

Ms. Pritt making no effort to depose any representative of the

Committees. On June 15, 1999, the Committees filed a joint

motion for summary judgment. The Committees contended

that all four Counts of the Amended Complaint were barred

because each of the statements at issue was either true or

editorial opinion, and because the record contained no

evidence of actual malice — that is, that the Committees

published the advertisements with knowledge that they were

false or with a “reckless disregard” for whether they were

false or not. New York Times, 376 U.S. at 279-80.‘

On May 15, 2000, after hearing argument on the

motion, the trial court granted the Committees’ motion for

summary judgment. In part, the trial court ruled:

As a former state legislator and candidate for the

office of Governor, plaintiff is a “public figure” for

purposes of this lawsuit. . . .

, The Committees also contended that: (1) all four Counts were

barred by a one-year statute of limitations; (2) Count II was barred

because W. Va. Code § 3-8-1 1(c) is a criminal provision with no private

right of action; (3) Count IV was barred because the statements at issue

involved a public figure and matters of public interest, and were not

subject to a “false light” claim; and (4) Ms. Pritt could not prove

causation of any injury. The trial court’s rulings on falseness and actual

malice were dispositive, so it did not decide these other issues. App. 28a

n.1. Neither did the Supreme Court of Appeals.

As a public figure, plaintiff must prove by “clear

and convincing evidence” that the statements at

issue were both false and published with “actual

malice” — that defendants had “knowledge at the

time of publication that they were false” or

published them with “reckless and willful disregard

for the truth.”. . .

Summary judgment on all four Counts is warranted

because the statements at issue are not false.

Defendants analyzed the legislative record and

explained at length why all but one of the statements

at issue are true, and why the last one is a protected

expression of opinion. ... In particular, defendants

set forth plaintiffs legislative votes that supported

each statement and countered the interpretations

giving rise to plaintiff's claims. .. .

Summary judgment on all four Counts is also

warranted because there is no record evidence that

any defendant acted with “actual malice.”

App. 26a-27a. Ms. Pritt sought reconsideration, which was

denied on June 13, 2000. App. 29a.

Proceedings in the Supreme Court of Appeals

On appeal,” Ms. Pritt presented several arguments,

but only her challenge to the trial court's disposition of the

actual malice issue is pertinent to this Petition. Since each of

Ms. Pritt's claims is based upon the very same advertisements

as her defamation claim, the trial court correctly ruled, and

the Supreme Court of Appeals implicitly accepted, that each

West Virginia has no intermediate appellate court, and Ms. Pritt

sought direct review by the Supreme Court of Appeals by filing a petition

for appeal. See W. Va. R. App. P. 3. She filed her amended petition on

December 8, 2000, and it was granted on April 3, 2001. App. 30a.

of her claims is subject to the actual malice requirement.

App. 17a-18a, 26a.

In her reply brief, Ms. Pritt set forth the following

assertions as supporting a finding of actual malice:

Evidence of malice includes, inter alia, the cloak

and dagger manner in which the [West Virginia

State Victory] committee was surreptitiously created

just before the election, the dishonesty of the

committee's self-portrayal as being sponsored and

paid for by the contributions of West Virginians, the

time frame just before the election when the ads

were aired, providing the Appellant no legitimate

opportunity to respond, the vituperative nature of

the content of the ads and their obvious intent to

shock the consciences of West Virginia voters with

statements that were patently false; and the pattern

of conduct of the Republican National Committee.

Reply Br. at 13. None of these assertions, even if proved, is

sufficient to demonstrate actual malice. Ms. Pritt pointed to

no evidence in the record, much less clear and convincing

evidence, to demonstrate that the Committees knew or

recklessly disregarded that the advertisements were false.

In its decision, the Supreme Court of Appeals focused

on whether there were “genuine issues of material fact”

sufficient to preclude summary judgment. App. 16a.° After

Three of five justices on the Supreme Court of Appeals were

campaigning with Ms. Pritt at the time the advertisements at issue were

airing. Only one of those three recused, and was replaced by Circuit

Judge John T. Madden. App. la. The lower court's rules vest the

decision to recuse in the unreviewable discretion of the affected justice.

In the event of recusal, the Chief Justice has the unreviewable discretion

to appoint any sitting trial court judge in West Virginia to sit for the case.

W. Va. R. App. P. 29(g).

(continued...)

citing (App. 12a-15a) various formulations of the s

judgment standard in "run of the mill civil cases[s],"

Anderson, 477 U.S. at 252, but none from public figure

defamation cases, the court stated (App. 15a-16a):

. we conclude that there are genuine issues of

material fact so as to necessitate the presentation of

this case to a jury. Unlike the circuit court, we are

not firmly convinced that the factual issues herein

have been finally resolved. Specifically, before this

Court, the parties repeatedly and continuously have

argued the facts giving rise to the instant appeal

and whether the allegedly defamatory statements

were tainted with falsity or laced with malice.

When faced with such an ongoing factual dispute,

and inferences that, if viewed in the nonmovant’s

favor, could support a verdict for the nonmovant, we

must not continue to harbor these doubts as to

whether summary judgment is appropriate but

34a. By letter and order dated July 10, Justice Starcher refused to recuse.

App. 32a-35a. On October 2, the day before oral argument, Justice

Maynard disclosed for the first time that he had also campaigned with

Ms. Pritt in 1996, and recused sua sponte. App. 36a. At oral argument,

Justice Davis disclosed publicly for the first time that, like Justices

Maynard and Starcher, she had also campaigned with Ms. Pritt in 1996.

In the absence of objection by the parties, however, Justice Davis did not

recuse, and eventually authored the majority opinion. For a discussion of

the unique recusal policies of the West Virginia Supreme Court of

Appeals, see Dababnah v. West Virginia Board of Medicine, 47 F.

Supp.2d 734, 749-50 (S.D. W. Va. 1999).

rather hand the case over to a jury, in whose

province such factual determinations lie.

Accordingly, we reverse the circuit court’s ruling

granting summary judgment to RNC... . (emphasis

added).

The "ongoing factual dispute" referred to by the Court

was not a conflict in the evidence concerning actual malice,

but the conflict between Ms. Pritt’s claim that the record

contained such evidence, and the Committees’ insistence that

the record contained no such evidence. Contrary to this

Court's instructions, the Supreme Court of Appeals failed to

conduct an “independent review” of the record to assure that

it contained the requisite clear and convincing evidence of

actual malice.* Accordingly, as we show below, the Supreme

Court of Appeals selected and applied the incorrect legal

precept, leading it to err as a matter of law.

Noting that “it has come to our attention that the

litigation of a cause of action for defamation can prove to be

a daunting task for even the most learned jurist or the most

Justices Albright and Starcher filed a concurring opinion stating

that a “genuine issue of material fact” as to actual malice was created by

the question of “what Appellees, or either of them, knew or should have

known regarding the factual content and the context of the commercials.”

App. 22a (emphasis added). These Justices confused actual malice with

negligence, which is insufficient to sustain a public figure defamation

action. See Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510

(1991).

In a footnote, the lower court alluded to deposition testimony

from two state senators proffered by Ms. Pritt to demonstrate that the

advertisements were false. App. 16a n.10. Neither deponent did or could

speak to the Committees’ alleged knowledge or recklessness.

Accordingly, this proffered testimony had no bearing on the issue of

actual malice.

experienced counselor,” the Supreme Court of Appeals also

re-stated several settled principles of defamation

jurisprudence “in an attempt to clarify this nebulous area of

law.” App. 17a. In a footnote, the court paid lip service to

one of the very principles that it ignored in deciding the case:

that as a public figure Ms. Pritt was required to “resist a

motion for summary judgment by showing clear and

convincing evidence of actual malice.” App. 20a-21la n.14.

The court then erroneously disregarded this rule, asserting

that it was “no longer relevant” because the case “cannot be

disposed of summarily.” Jd. Thus, the court reversed the

grant of summary judgment without determining whether the

record contained clear and convincing evidence of actual

malice.

REASONS FOR GRANTING THE WRIT

The Supreme Court of Appeals fundamentally

misunderstood or ignored its responsibilities under the First

Amendment. Not only does the decision below defy the

settled First Amendment jurisprudence of this Court, it also

conflicts with the many state courts and federal courts of

appeals that have properly fulfilled their obligations in public

figure defamation cases. Unless and until corrected by this

Court, the precedent below threatens to chill political speech

and diminish public discourse about public figures

throughout West Virginia and adjacent States. The First

Amendment cannot countenance this result.

I. THE DECISION BELOW IS CONTRARY

TO THIS COURT’S CLEAR RULINGS ON

THE ROLE OF APPELLATE COURTS IN

PUBLIC FIGURE DEFAMATION CASES.

Over the last four decades, this Court has consistently

emphasized two rules imposed by the First Amendment in

public figure defamation cases: (1) plaintiffs must prove by

clear and convincing evidence that defamatory statements

were made with actual malice; and (2) appellate courts must

independently review the factual record to determine whether

such evidence exists. First set forth in New York Times, these

tules are coextensive and mutually reinforce each other.

Later, in Anderson, this Court confirmed that the “clear and

convincing” standard of proof applies at the summary

judgment stage. By failing to conduct an independent review

of the record, and then holding that mere disagreement by the

parties about the content of the record is sufficient to avoid

summary judgment, the Supreme Court of Appeals

misunderstood the unique duty of independent review in

-—defamation cases imposed upon it by the First Amendment.

j A. In Public Figure Defamation Cases, the

First Amendment Requires Independent

Appellate Review To Assure That the

Record Contains Clear and Convincing

Evidence of Actual Malice.

This Court established the bedrock First Amendment

requirement of actual malice in New York Times. There, a

public official alleged that he was injured by inaccurate

Statements in an advertisement published by the New York

Times newspaper. Although falseness was “‘uncontroverted,”

376 U.S. at 258, this Court reversed a decision of the

Alabama Supreme Court that upheld a jury verdict for

plaintiff, and ordered entry of judgment for defendants. /d. at

292.

This Court’s ruling was premised on its conclusion

that falseness alone is not sufficient for a public official to

prove libel. To the-contrary, emphasizing our “profound

national commitment to the principle that debate on public

issues should be uninhibited, robust, and wide-open, and that

it may well include vehement, caustic, and sometimes

unpleasantly sharp attacks on government and public

Officials,” id. at 270, the Court ruled that “(e]rroneous

Statement is inevitable in free debate, and [i]t must be

protected if the freedoms of expression are to have the

‘breathing space’ that ‘they need . . . to survive.’” /d. at 271-

72. To secure the protections of the First Amendment, the

Court required that defamation plaintiffs who are public

officials must prove that a publisher made a false statement

with “actual malice” — that is, with knowledge that it was

false, or with a “reckless disregard” for whether it was false

or not. /d. at 280-81. The Court further required that actual

malice must be proved with “convincing clarity.” Jd. at 285-

86.

After setting forth the actual malice requirement, the

Court in New York Times reviewed the evidence on this

dispositive issue. As it carefully explained, the Court's

independent review of the record was compelled by the same

First Amendment principles that require proof of actual

malice:

This Court’s duty is not limited to the elaboration of

constitutional principles; we must also in proper

cases review the evidence to make certain that those

principles have been constitutionally applied. This

is such a case, particularly since the question is one

of alleged trespass across ‘the line between speech

unconditionally guaranteed and speech which may

legitimately be regulated.’ In cases where that line

must be drawn, the rule is that we ‘examine for

ourselves the statements in issue and _ the

circumstances under which they were made to see

r This Court later extended the actual malice requirement to ail

public figure defamation plaintiffs. See Curtis Publ’g Co. v. Butts, 388

U.S. 130, 155 (1967) (defamation claims of university athletic director).

The “clear and convincing proof” standard of proof for actual malice also

applies to the defamation claims of all public figures. See Gertz v. Robert

Welch, Inc., 418 U.S. 323, 342 (1974).

. whether they are of-a character which the

principles of the First Amendment . . . protect.’ We

must ‘make an independeni examination of the

whole record,’ so as to assure ourselves that the

judgment does not constitute a forbidden intrusion

on the field of free expression.

Id. at 285 (citations omitted) (emphasis added).

This Court reiterated the need for “clear and

convincing” proof of actual malice and an independent

appellate review of the record in Bose Corporation y.

Consumers Union of the United States, Inc., 466 U.S. 485

(1984). There, the district court had ruled, after a 19-day

bench trial, that plaintiff had sustained its burden of proving

actual malice. Jd. at 491. The First Circuit reversed based on

its own review of the factual record. /d. at 491-92. After a

comprehensive analysis of First Amendment precedents, this

Court affirmed, stating that:

The requirement of independent appellate review

reiterated in New York Times Co. v. Sullivan is a

rule of federal constitutional law.... It reflects a

deeply held conviction that judges — and particularly

Members of this Court — must exercise such review

in order to preserve the precious liberties

established and ordained by the Constitution. The

question whether the evidence in the record in a

defamation case is of the convincing clarity required

to strip the utterance of First Amendment protection

is not merely a question for the trier of fact. Judges,

as expositors of the Constitution, must

independently decide whether the evidence in the

record is sufficient to cross the constitutional

threshold that bars the entry of any judgment that is

not supported by clear and convincing evidence of

‘actual malice. ’

Id. at 510-11 (emphasis added). This Court conducted its

own review of the record evidence, id. at 511-14, and

concluded that plaintiff's evidence of actual malice was not

“clear and convincing.” /d. at 513. Reiterating its basic

ruling, the Court held that “[a]ppellate judges” in a case

“governed by New York Times . . . must exercise independent

judgment and determine whether the record establishes actual

malice with convincing clarity.” Jd. at 514.'°

B. The Requirement for Independent Review

To Assure That the Record Contains

“Clear and Convincing” Proof of Actual

Malice Applies at the Summary Judgment

Stage of a Public Figure Defamation Case.

This Court expressly extended the reasoning of New

York Times and its progeny to the summary judgment setting

in Anderson. Anderson came to this Court in a procedural

” This Court has consistently maintained these strict requirements.

In Time, Inc. v. Pape, 401 U.S. 279 (1971), the district court directed a

verdict against a public figure’s defamation claims and the court of

appeals reversed because it discerned evidence of actual malice.

Labeling the actual malice requirement a “constitutional rule,” this Court

conducted its own review of the record and concluded that the evidence

of actual malice did not warrant a trial. Jd. at 284-92. In Monitor Patriot

Co. v. Roy, 401 U.S. 265 (1971), a state trial court entered judgment for

plaintiff on his defamation claims and the state supreme court affirmed.

This Court reversed, however, after conducting an independent review

“as a matter of constitutional law” and finding insufficient evidence of

actual malice. /d. at 277. In Harte-Hanks Communications, Inc. v.

Connaughton, 491 U.S. 657 (1989), the court of appeals reviewed the

trial record and affirmed a jury verdict in favor of the plaintiff, a

candidate for political office. /d. at 662-63. Although this Court also

affirmed upon its own review of the record, it noted that discussion of a

candidate’s qualifications presents “the strongest possible case for

independent review.” Jd. at 686-87.

- i

posture identical to this case. In Anderson, the district court

granted summary judgment in favor of defendants in a public

figure defamation action, on the ground that defendants’

investigation, research, and reliance on numerous sources

precluded a finding of actual malice by clear and convincing

evidence. 477 U.S. at 246. The D.C. Circuit reversed and

remanded, holding that the heightened evidentiary burden

imposed by New York Times did not apply at the summary

judgment stage, and concluding that its own independent

review of the record demonstrated that a jury could

“reasonably conclude” that actual malice was present. /d. at

247.

This Court reversed the D.C. Circuit and held that

“the inquiry involved in a ruling on a motion for summary

judgment ... necessarily implicates the substantive

evidentiary standard of proof that would apply at the trial on

the merits.” Jd. at 252. Expressly contrasting the approach

to summary judgment “in a run-of-the-mill civil case” with

that in a public figure defamation case “where the First

Amendment mandates a ‘clear and convincing’ standard,” id.

at 252, the Court held that the appropriate summary judgment

inquiry in a pubic figure defamation case is “whether the

evidence in the record could support a reasonable jury

finding either that the plaintiff has shown actual malice by

clear and convincing evidence or that the plaintiff has not.”

Id. at 255-56. The Court placed the burden of coming

forward with the necessary clear and convincing proof

squarely on the plaintiff, who must proffer “concrete

evidence” and “specific facts” demonstrating actual malice.

Id. at 249, 256. In view of these requirements, the Court

remanded the case for application of the “clear and

convincing” standard of proof. Jd. at 257."

C. The Supreme Court of Appeals Failed To

Review the Record and Failed To Apply

the “Clear And Convincing” Standard of

Proof for Actual Malice.

Despite the clear weight of this Court’s decisions, the

Supreme Court of Appeals misunderstood its duty of

independent review of the record. Glaringly, the lower court,

like Ms. Pritt, failed to identify any “concrete evidence” or

“specific facts” pertinent to the question whether defendants

knew the challenged statements were false, or recklessly

disregarded the falseness of those statements. The court’s

failure to recite any such evidence is fully explained by its

observation that “before this Court, the parties repeatedly and

continuously have argued the facts . .. whether the allegedly

defamatory statements were ... laced with actual malice.”

App. 15a. Rather than “continue to harbor these doubts

about whether summary judgment is appropriate,” the lower

court should have simply examined the record; by failing to

do so, it defaulted on its duty of independent review by

“hand[ing] the case over to a jury.” App. 15a. Under the

lower court's reasoning, any unsubstantiated claim by a

defamation plaintiff regarding the content of the record

would preclude summary judgment and require a

: This Court reaffirmed the central holding of Anderson in

Masson. There, the trial court granted defendants summary judgment in a

public figure defamation action, and, after an extensive review of the

record, the court of appeals affirmed. Masson, 501 U.S. at 508-09. This

Court conducted its own review of the record, id. at 521-25, however, and

reversed, ruling that there was “sufficient additional evidence . . . [which]

would support a jury determination under a clear and convincing

standard” that actual malice was present. /d. at 521.

burdensome, expensive, and uncertain trial. Indeed, because

a directed verdict motion poses the same essential questions

as a summary judgment motion, Anderson, 477 U.S. at 250-

51, the lower court has virtually guaranteed that public figure

defamation cases in West Virginia courts must proceed all

the way to verdict. The Supreme Court of Appeals was

plainly wrong. See Anderson, 477 U.S. at 255-56; Bose, 466

U.S. at 511; New York Times, 376 U.S. at 285.

The Supreme Court of Appeals also failed to apply

the “clear and convincing” standard to Ms. Pritt’s allegation

of actual malice. Although the court recognized the general

applicability of this heightened standard of proof, it deemed

the standard “no longer relevant” because the case “cannot be

disposed of summarily.” App. 20a n.14. This conclusion is

precisely backwards, because the decision that summary

judgment was inappropriate should have been based on the

presence of clear and convincing evidence of actual malice.

See Anderson, 477 U.S. at 252, 256; Masson, 501 U.S. at

521. Because the court failed to conduct the requisite

independent review of the record for evidence of actual

malice, its conclusion that the case “cannot be disposed of

summarily” was premature, unsupported by evidence, and

incorrect as a matter of law.

Il. THE DECISION BELOW CONFLICTS

WITH RULINGS FROM THE VAST

MAJORITY OF STATE COURTS AND

FEDERAL COURTS OF APPEALS.

In view of the extraordinary burdens that erroneous

lower court decisions can impose on constitutionally-

protected speech, this Court has granted certiorari, even

without conflicts among the circuits or state courts of last

resort, to assure that First Amendment limits are respected.

See, e.g., Zacchini v. Scripps-Howard Broad. Co., 433 U.S.

562, 565-66 (1977) (granting certiorari to review Ohio

Supreme Court ruling on the First Amendment implications

of state law “right of publicity,” despite absence of conflicts

among the lower courts); Greenbelt Coop. Publ’g Ass'n, Inc.

v. Bresler, 398 U.S. 6, 8 (1970) (same, to review Maryland

Court of Appeals ruling on “actual malice” jury instruction;

“We granted certiorari to consider the constitutional issues

presented.”). The decision below presents an a fortiori case

for exercise of this Court’s certiorari jurisdiction because, in

addition to its tendency to suppress core political speech (see

Part III below), it squarely conflicts with rulings from most

state courts of last resort and federal courts of appeals.

The majority of state high courts have respected and

shouldered their duty of independent appellate review to

enforce the need for “clear and convincing” proof of actual

malice in public figure defamation cases. - For example, in

Guilford Transportation Industries, Inc. v. Wilner, 760 A.2d

580 (D.C. 2000), the District of Columbia Court of Appeals

affirmed the trial court’s entry of summary judgment against

the defamation claims of a public figure. The court ruled, in

particular, that the First Amendment required it to “make an

independent examination of the whole record in order to

make sure that the judgment does not constitute a forbidden

intrusion on the field of free expression.” Jd. at 593

(quotation omitted). As part of its examination, the court set

out the facts underlying plaintiff's allegations of actual

malice and concluded that those allegations were not

supported by clear and convincing evidence. Id. at 583-87.

Similarly, in Journal-Gazette Company, Inc. Vv.

Bandido’s, Inc., 712 N.E.2d 446 (Ind.), cert. denied, 528

U.S. 1005 (1999), the trial court entered summary judgment

against a public figure plaintiff's defamation claims, the

intermediate appellate court reversed and remanded for trial,

and the Indiana Supreme Court reversed and reinstated

summary judgment. In rendering its decision, the state

supreme court held that it is bound to use an “independent

examination of the whole record as the standard of review

—,.” —

when proof of actual malice is required as a matter of federal

constitutional law in defamation cases.” /d. at 455-56. After

reciting the pertinent facts, the court concluded that the

evidence of actual malice was not clear and convincing. Jd.

at 456-69.

The West Virginia court conducted no such review in

this case. Indeed, the decision below sets out no facts

bearing on actual malice but merely seizes upon the parties’

disagreement about whether the record contains sufficient

evidence to preclude summary judgment, and then asserts

that the “clear and convincing” standard does not apply

because unidentified “issues of material fact” preclude

summary judgment. App. 15a, 20a n.14. The decision below

therefore conflicts with this Court's decisions in New York

Times, Anderson, and Bose, as well as Guilford, Journal-

Gazette, and many other state court decisions.’

See, e.g., Turner v. KTRK Television, Inc., 38 S.W.3d 103, 120

(Tex. 2000) (“It is not enough for us .. . to determine that a reasonable

jury could have found that [defendant] acted with actual malice. Beyond

that, we ourselves must conclude that the evidence of malice is clear and

convincing.”); Fitzgerald v. Tucker, 737 So.2d 706, 716 (La. 1999)

(“{Ojur scope of review is to examine in depth the ‘statements in issue’

and the ‘circumstances under which they were made,’ and to ‘re-examine

the evidentiary basis’ of the lower court decision in the light of the

Constitution.”). Accord Pemberton v. Birmingham News Co., 482 So.2d

257, 260 (Ala. 1985); Dombey v. Phoenix Newspapers, Inc., 724 P.2d

562, 572 (Ariz. 1986); Thomson Newspaper Publ’g, Inc. v. Coody, 896

S.W.2d 897, 901 (Ark.), cert. denied, 516 U.S. 1008 (1995); McCoy v.

Hearst Corp., 727 P.2d 711, 715-16 (Cal. 1986) (in bank), cert. denied,

481 U.S. 1041 (1987); Dileo v. Koltnow, 613 P.2d 318, 323-24 (Colo.

1980) (en banc); Kanaga v. Gannett Co., Inc., 687 A.2d 173, 176 (Del.

1996); Wiemer v. Rankin, 790 P.2d 347, 357 (Idaho 1990); Wanless v.

Rothballer, 503 N.E.2d 316, 320 (Ill.), cert. denied, 482 U.S. 929 (1987);

Carr v. Bankers Trust Co., 546 N.W.2d 901, 904-05 (lowa 1996); Tucci

(continued...)

Also in contrast to the court below, the federal courts

of appeals have applied this Court’s public figure defamation

requirements correctly. For example, in Secrist v. Harkin,

874 F.2d 1244 (8th Cir.), cert. denied, 493 U.S. 933 (1989),

the Eighth Circuit affirmed the district court's entry of

summary judgment against a public figure plaintiff's

defamation claims. Jd. at 1253. In evaluating whether

summary judgment was properly granted, the court of

appeals ruled that it was “obliged to make [its] own

independent review of the record to ensure the principles of

actual malice are constitutionally applied.” Jd. at 1251. The

court set out and carefully reviewed the evidence, which it.

determined would not “support a jury finding that [plaintiff]

v. Guy Gannett Publ’g Co., 464 A.2d 161, 167 (Me. 1983); Chesapeake

Publ’g Corp. v. Williams, 661 A.2d 1169, 1176 (Md. 1995); McAvoy v.

Shufrin, 518 N.E.2d 513, 516 (Mass. 1988); Rouch v. Enquirer & News

of Battlecreek Michigan, 487 N.W.2d 205, 212 (Mich. 1992), cert.

denied, 507 U.S. 967 (1993); Diesen v. Hessburg, 455 N.W.2d 446, 452

(Minn. 1990), cert. denied, 498 U.S. 1119 (1991); Gulf Publ’g Co., Inc.

v. Lee, 434 So.2d 687, 696 (Miss. 1983); Deaver v. Hinel, 391 N.W.2d

128, 131 (Neb. 1986); Turf Lawnmower Repair, Inc. v. Bergen Record

Corp., 655 A.2d 417, 423 (N.J. 1995), cert. denied, 516 U.S. 1066

(1996); Mahoney v. Adirondack Publ’g Co., 517 N.E.2d 1365, 1369

(N.Y. 1987); Dale v. Ohio Civil Serv. Employees Ass'n, 567 N.E.2d 253,

255 (Ohio), cert. denied, 501 U.S. 1231 (1991); Herbert v. Oklahoma

Christian Coalition, 992 P.2d 322, 328 (Okla. 2000); Lyons v. Rhode

Island Pub. Employees Council, 559 A.2d 130, 134-35 (R.I.), cert.

denied, 493 U.S. 892 (1989); Peeler v. Spartan Radiocasting, Inc., 478

S.E.2d 282, 284 (S.C. 1996), cert. denied, 520 U.S. 1275 (1997);

Margoles v. Hubbart, 760 P.2d 324, 326 & n.6 (Wash. 1988) (en banc);

Torgerson v. Journal/Sentinel, Inc., 563 N.W.2d 472, 478-79 (Wisc.

1997); MacGuire v. Harriscope Broad. Co., 612 P.2d 830, 833 (Wyo.

1983). But see Miami Herald Publ’g Co. v. Ane, 458 So.2d 239, 242

(Fla. 1984) (purporting to apply rule of independent review, but

describing no evidence).

has shown with convincing clarity that a defendant acted

with actual malice.” Jd. at 1252.

The D.C. Circuit applied the same level of scrutiny in

Liberty Lobby, Inc. v. Rees, 852 F.2d 595 (D.C. Cir. 1988),

cert. denied, 489 U.S. 1010 (1989), in which it also affirmed

entry of summary judgment against a public figure plaintiffs

defamation claims. After the court conducted a “thorough

review of the record” and set forth the evidence, it

determined that plaintiff had failed to prove actual malice by

clear and convincing evidence. Jd. at 601.

As noted above, the West Virginia court conducted

no factual review and failed to apply the proper evidentiary

standard. The decision below therefore conflicts with Secrist

and Liberty Lobby, along with rulings from nearly all other

federal courts of appeals.

ns See, e.g., Cobb v. Time, Inc., No. 00-5159, 2002 WL 112477, at

*7 (6th Cir. Jan. 30, 2002) (“The unique nature of the interest protected

by the actual malice standard requires that reviewing courts conduct an

independent review to determine whether that standard has been met.”);

Levinsky’s, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 127 (1st Cir.

1997) (“appellate judges must conduct a whole-record review”); Newton

v. NBC, Inc., 930 F.2d 662, 669, 672 (9th Cir.) (it “is necessary to state in

some detail the evidence on the actual malice issue” in order to review

evidence “with the searching care required to protect First Amendment

values”), cert. denied, 502 U.S. 866 (1991). Accord Levan v. Capital

Cities/ABC, Inc., 190 F.3d 1230, 1241 (11th Cir. 1999), cert. denied, 528

U.S. 1198 (2000); Anderson v. McCotter, 100 F.3d 723, 725 (10th Cir.

1996); Reuber v. Food Chem. News, Inc., 925 F.2d 703, 708, 714-15 (4th

Cir.) (en banc), cert. denied, 501 U.S. 1212 (1991); Contemporary

Mission, Inc. v. New York Times Co., 842 F.2d 612, 622 (2d Cir.), cert.

denied, 488 U.S. 856 (1988); Bartimo v. Horsemen’s Benevolent &

Protective Ass'n, 771 F.2d 894, 898 (Sth Cir. 1985), cert. denied, 475

U.S. 1119 (1986); Marcone v. Penthouse Int’l Magazine for Men, 754

F.2d 1072, 1088 (3d Cir.), cert. denied, 474 U.S. 864 (1985).

Ill. IF NOT CORRECTED, THE DECISION

BELOW WILL HAVE PROFOUND

CONSEQUENCES FOR POLITICAL

SPEECH IN WEST VIRGINIA AND

ADJACENT STATES.

Unless and until corrected, the Supreme Court of

Appeals’ decision will have an immediate and far-reaching

impact well beyond the parties to this case. With trial now

scheduled for June 2003, and inevitable appeals lasting for

years thereafter, two and perhaps three federal and state

election cycles will run their course in West Virginia before

this Court might have another opportunity to correct the

lower court's error. Perhaps ironically, if the Committees

prevail at trial, the Supreme Court of Appeals’ erroneous

view of summary judgment in defamation cases may evade

correction indefinitely. For however long the lower court

decision remains good law, it will engender a coercive threat

of defamation litigation, not terminable by summary

judgment even in wholly meritless cases, that will chill free

and open political debate.

For decades, this Court has repeatedly recognized that

the First Amendment guarantee of free speech “has its fullest

and most urgent application precisely to the conduct of

campaigns for political office.” Monitor Patriot Co., 401

US. at 272.4 This is particularly true for the type of

- See also Colorado Republican Fed. Campaign Comm. v. FEC,

518 U.S. 604, 616 (1996) (political speech is “core First Amendment

activity”); Buckley v. Valeo, 424 U.S. 1, 14 (1976) (political speech is an

“area of the most fundamental First Amendment activities” entitled to the

“broadest protection”); Mills v. Alabama, 384 U.S. 214, 218 (1966) (a

“major purpose” of the First Amendment is to “protect the free discussion

of governmental affairs”); Stromberg v. California, 283 U.S. 359, 369

(1931) (the “opportunity for free political discussion” is a “fundamental

principle of our constitutional system”).

candidate-focused speech at issue in this case because

“debate on the qualifications of candidates [is] integral to the

operation of the system of government established by our

Constitution.” Eu v. San Francisco Cty. Democratic Cen.

Comm., 489 U.S. 214, 223 (1989) (quotation omitted). And,

of course, nothing in the lower court's opinion limits its

erroneous view of defamation summary judgment procedure

to cases arising out of political contests; it is equally

applicable to any defamation suit brought by any public

figure.

The decision below, if not corrected, threatens to

undermine bedrock First Amendment principles. Put simply,

speakers in West Virginia are now much more likely to face

burdensome, costly, and uncertain jury trials as a result of

any speech that is critical of public figures. By thus

weakening summary judgment procedures in these cases, the

lower court has dramatically increased the probability of

protracted litigation concerning political speech. As this

Court has repeatedly recognized, speakers will doubtless

respond by curtailing their criticism of public figures, thereby

depriving voters of information that is vital to our system of

self-government. This is precisely what the actual malice

requirement was designed to prevent.

This danger is not limited to political party

committees such as the RNC. To the contrary, the decision

below threatens to unleash a torrent of litigation against a//

those who engage in political speech. Newspapers and

broadcast media outlets that criticize public officials or

candidates for office, independent groups, and candidates

themselves who may speak harshly of their opponents during

the rough-and-tumble of campaigning, are equally vulnerable

to trials for their political speech under West Virginia’s new

regime.

The consequences of self-censorship are brought into

stark relief by the important role that political advertising

plays in our Nation’s electoral process. Political

advertisements are the “prime method for communicating

with voters in geographically large districts and as such are

potent tools for changing minds and ultimately winning

elections.” Brennan Center for Justice, Buying Time 2000:

Television Advertising in the 2000 Federal Elections 13

(2002). Reflecting their unsurpassed importance, a huge

number of political advertisements are published in each

biennial election cycle. During the 1999-2000 cycle, for

example, 3,327 unique political spots aired on television in

federal, gubernatorial, and judicial elections in the Nation’s

top 75 media markets alone, id. at 29, of which 4 reach into

West Virginia. Warren Communications News, Television &

Cable Fact Book A-1364 (2001). These advertisements aired

a total of 940,755 times, at a cost of over $672 million.

Buying Time at 29. Although representing only a fraction of

the political advertising that occurs each year, these totals

illustrate the potentially profound impact of the decision

below.

This impact will be particularly onerous for non-party

entities, which are responsible for a substantial amount of

political speech in the United States. For example,

approximately $347 million of the estimated $509 million

spent nationwide on “issue advocacy” advertisements during

the 1999-2000 election cycle was spent by groups other than

Republican and Democratic party organizations.’°

Annenberg Public Policy Center, Issue Advertising in the

1999-2000 Election Cycle 4-5 (Feb. 1, 2001). In view of the

decision below, each of these groups, along with the media

and candidates themselves, face the same dilemma in West

" “Issue advocacy” is a term used for political speech that does not

expressly advocate the election or defeat of an identified candidate. See

generally Buckley, 424 U.S. at 44 & n.52.

Virginia: either limit the exercise of core political speech or

prepare to defend against protracted litigation by plaintiffs

whose ability to proceed to trial has been greatly (and

unconstitutionally) enhanced. This dilemma is antithetical to

the First Amendment. Philadelphia Newspapers, 475 U.S. at

777.

Speech that is most subject to defamation litigation is,

in the view of one respected observer, quite helpful and

informative to voters. "[NJegative advertisements actually

contain more relevant issue content than ads containing no

information about the sponsor's opposing candidate."

Kathleen Hall Jamieson, Everything You Think You Know

About Politics . . . And Why You're Wrong 104 (2000)

(emphasis added). Therefore, suppression of such speech not

only offends the First Amendment; it also will deprive the

public of valuable information about candidates.

It is also worth noting that the chilling effect of the

lower court's decision is not confined to West Virginia. The

Washington, D.C., Pittsburgh, Pennsylvania, Roanoke,

Virginia, and other, smaller out-of-state media markets also

play into West Virginia. See Television & Cable Fact Book

A-1364. News reports of public officials’ activities, as well

as political debate, in these markets may well be subjected to

defamation litigation in West Virginia courts.

In sum, by permitting defamation cases brought by

plaintiffs such as Ms. Pritt to proceed to trial without clear

and convincing proof of actual malice, the Supreme Court of

Appeals has stripped away a layer of First Amendment

protection that is crucial to the public discussion of political

issues. Instead of securing the widest dissemination of

information, the decision below threatens to mute many

political speakers, hindering the speech that is most “integral

to the operation of the system of government established by

our Constitution.” Buckley, 424 U.S. at 14.

CONCLUSION

For the reasons stated above, petitioner Republican

National Committee respectfully urges this Court to grant

this Petition.

‘Respectfully submitted,

Bobby R. Burchfield

Counsel of Record

Jason A. Levine

COVINGTON & BURLING

1201 Pennsylvania Ave., N.W.