Opposition Brief — Clark v. Jenkins (No. 08-1122)

Supreme Coun, US

FILED

JUN 1 - 2009

OFFICE OF THE CLERK

No. 08-1122

IN THE

Supreme Court of the Gnited States

PAUL MARTIN CLARK AND BLACK CITIZENS FOR

JUSTICE, LAW AND ORDER, INC.,

PETITIONERS,

V.

GLADYS ELAINE BLANTON JENKINS,

RESPONDENT.

On Petition For A Writ Of Certiorari

To The Court Of Appeals Of Texas,

Seventh District

RESPONDENT'S BRIEF IN OPPOSITION

SUSAN HAYS DAVID J. SCHENCK

GEISLER HAYS, LLP Counsel of Record

2911 Turtle Creek Blvd., RICHARD D. SALGADO

Ste. 940 JONES DAY

Dallas, TX 75219 2727 North Harwood St.

Tel.: (214) 367-6020 Dallas, TX 75201-1515

Tel.: (214) 220-3939

Counsel for Respondent

l

QUESTION PRESENTED

Whether this Court should overrule its own

precedent in McDonald v. Smith, 472 U.S. 479

(1985), and find that the Petition Clause of the First

Amendment provides an absolute privilege to libel

where a defamatory statement about another person

is communicated, with actual malice, via a “memo”

sent outside any formal process, to a government

official.

ll

PARTIES TO THE PROCEEDING

Petitioners are Paul Martin Clark and Black

Citizens for Justice, Law and Order, Inc. Respondent

is Gladys Elaine Blanton Jenkins, a Texas resident.

111

TABLE OF CONTENTS

I css cesepbasecrseseesssrseseseovnecscsuesesseanveors 1

Ne rec aii iLL vdinviivecsedsesnusscnevevsaseresvesos 3

I.

II.

The Defendants Submit A Memorandum

Filled With Outrageous Allegations Of

Murder, Prostitution, And Klan Activity. ......3

On Evidence Challenging the Petitioners’

Acts and Motives, Ms. Jenkins Obtains a

Favorable Jury Verdict of Malice.................... 5

REASONS FOR DENYING THE PETITION ........... 7

I.

II.

Ii.

McDonald v. Smith Has Gone Largely

Unchallenged For Nearly A Quarter

ass caiacisadvacsbuicerneesne vsccsees 8

MCDONALD WAS CORRECTLY DECIDED.......... 10

A. The First Amendment Does Not

Protect A Deliberate or Reckless

Falsehood, Regardless Of Whether It

Constitutes Political Speech Or A

Petition To The Government.............. ii

B. McDonald Can Readily Be

Reconciled With The Noerr-

Pennington Doctrine ................ Po Ne 13

C. Petitioners’ Preferred Interpretation

Would Be Detrimental To

Democratic Government.................. 15

This Case Is Ill-Suited As A Means To

I IME ocesesvevenseseevacvevseceess 17

1V

TABLE OF CONTENTS

(continued)

Page

IV. ‘This Case Is Not A Proper Vehicle To

Clarify Common Law Regarding

PIII iserciccnivconuos taseebaeeevissestabarnunadnirceel 19

Pe GET ET se iiesesicrivnsineseeaindiuheipgatemennenneeetde 21

Vv

TABLE OF AUTHORITIES

Page(s)

FEDERAL CASES

Burson v. Freeman, 504 U.S. 191 (1992)..........00..... 12

Cal. Motor Transport Co. v. Trucking

Unlimited, 404 U.S. 508 (1972).............0..0008. 14

Cantrell v. Forest City Publishing Co., 419 U.S.

ee igri dan ei viniadewotocspanuens 21

Cardtoons, L.C. v. Major League Baseball

Players Association, 208 F.3d 885 (10th

Oe aloe ehkennuuonsasedvenowes 9

Chaplinksy v. New Hampshire,

Oe ee ee isi ve kes encoiesevcnacceiniassts 12-15

City of Columbia v. Omni Outdoor Advertising,

Bree, GRO TE. DO CGD wiencccccciscsectncececiccoses 14

Cobb vu. Pozzi, 363 F.3d 89 (2d Cir. 2004)...........0.0.... 8

Colson v. Grohman, 174 F.3d 498

I ioc. can cp cx onancdachounaperaepanvnavnne 8

E.R.R. Presidents Conf. v. Noerr Motor Freight,

BE Ue LT CEE Nascekcckcvictascssocenes 13-14

Federal Electric Commitiee v. Wisc. Right to

Life, 551 U.S. 449, 127 S.Ct. 2652 (2007)..... 12

Foraker v. Chaffinch,

OE Bee te Ae, BF) ooo viccsivcscccnscecarscenes 19

Garrison vu. Louisiana,

er ee apnea dvacceddaacacdcectstesnieusntvaces 14

v1

TABLE OF AUTHORITIES

(continued)

Page(s)

Gertz v. Robert Welch, Inc.,

ee le Me FF vescccoccvncccssncsvecsccsexessves 11, 14

Grigley v. City of Atlanta,

ESS FOG 102 C1 1UB Cir. 1908) .......0.cccescrecseceses 8

In re IBP Confidential Busiress Documents

Litigation,

TET FBG Oar (BCH Cir. 1966) ..2.:..000..cccsccsccsveses )

Jenkins v. Rock Hill Local School District, 513

pe | 8

Masson v. New Yorker Magazine, Inc.,

TG os os sacevasscnevdencvensenesseveiens 21

McDonald v. Smith,

ey SUP IE Se. re passim

Minn. State Board for Community Colleges v.

Ragnt, 465 U.S. 271 (1GB4) ......0ccscsccssccceseses 16

Morse v. Frederick,

NE EN, SEED CIEE Dieses cvevescscosesecssssnsenoscsseceesns 12

R.A.V. v. City of St. Paul, Minn.,

I Me SD os os ccecensacnevedcendscnanessooncenss 11

Rendish v. City of Tacoma,

£28 FOG 1286 CHER Cir. 1997) ......0c0ceseccscees. 8-9

San Filippo v. Bongiovanni,

30 20 426 (Sad Cir. 1004)......................... 9,19

Schalk v. Gallemore,

SOG F.26 401 CIOCA Cir. LODO) ......6.cccccereccernce 19

Vill

TABLE OF AUTHORITIES

(continued)

Page(s)

Schenck v. United States,

ee A cis cess sep cunaicteabnertaaes 12,13

Shapero v. Kentucky Bar Association,.486 U.S.

ic anc asus waruipnadlessseineuiness venezedecaes 11

Thorne v. Bailey,

B46 FOG B41 COG Cir. 19GB) oocccccccescsccccccscssecee 9

United Mine Workers of America v.

Pennington, 381 U.S. 657 (1965)................... 14

Virginia v. Black,

Se re Dy bisvcvecsnnnsscnecceccvucssoseeavsases 11

Webster v. Sun Co., Inc.,

FOE ee LE Ce Ac SE Lv diccis vescacecccesensonvs 9

White Plains Towing Corp. v. Patterson, 991

ie OGD CR GA. TOGO) vivcccivcsisessccrecssessonsevssece 9

Wright v. DeArmond,

O77 Fe GOO CTU CAP. LOGE D sicevinccnsesiscesescosaves 9

STATE CASES

Hurlburt v. GulfAtlantic Life Insurance Co.,

749 S.W.2d 762 (Tex. 1987)...............6.000 17-18

J&J Construction Co. v. Bricklayers & Allied

Craftsmen,

664 N.W.2d 728 (Mich. 2003)..................s0000 10

Koehler v. Dubose,

200 S.W. 238 (Tex. Civ. App. — San

Pitre TELS, WHE WOT GD) cccececcsesaciesecssscecsssess 18

vill

TABLE OF AUTHORITIES

(continued)

Page(s)

Zarate v. Cortinas,

553 S.W.2d 652 (Tex. Civ. App. — Corpus

eR noc covkwnicccsuuccecesuaeses 18

STATE STATUTES

pp MP AR GT ) Sree

MISCELLANEOUS

Alfred Avins, De Facto and De Jure School

Segregation: Some Reflected Light on the

Fourteenth Amendment from the Civil

Rights Act of 1875, 38 MIss. L. J. 179,

a cons suneecub ene 10

David P. Currie, The Constitution in the

Supreme Court: The Powers of the

Federal Courts, 1801-1835, 49 U. CHI. L.

EI . OG, RN CLD cvccccciscecvscrvoscenecsssveasees 10

Michael Klarman, How Great Were the "Great"

Marshall Court Decisitons?, 87 VA. L.

Re SRE Lk Sy SR ne ennanene 9

Richard Posner, Bork and Beethoven, 42 STAN.

Bi EU, ee DE 6 RED viccvevsovecscvccecsacvexsoves 10

No. 08-1122

IN THE

Supreme Court of the United States

PAUL MARTIN CLARK AND BLACK CITIZENS FOR

JUSTICE, LAW AND ORDER, INC.,

PETITIONERS,

V.

YLADYS ELAINE BLANTON JENKINS,

RESPONDENT.

On Petition For A Writ Of Certiorari

To The Court Of Appeals Of Texas,

Seventh District

RESPONDENT’S BRIEF IN OPPOSITION

INTRODUCTION

Deliberate falsity and wanton, reckless disregard

for the truth has never enjoyed an_ elevated

constitutional value and = merits no_ special

constitutional protection here. Indeed, 24 years ago,

this Court confirmed that this fundamenta! principle

2

applies to the Petition Clause as well when it held

that although “[t}he right to petition is guaranteed,

the right to commit libel with impunity is_ not.”

McDonald v. Smith, 472 U.S. 479, 485 (1985).

Petitioners now ask this Court to throw out that

precedent and _ rule instead that the _ First

Amendment's Petition Clause guarantees an

absolute privilege to deliberately say anything about

anyone — regardless of falsity — to any public

official, without fear of consequence. This

interpretation would’ render’ public officials

defenseless against even the most baseless and

outrageous accusations, and open the floodgates to an

onslaught of reckless, unsubstantiated rumors and

outright lies presented as factual statements from

behind an iron curtain of constitutional immunity.

That outcome would unnecessarily turn nearly a

quarter century of precedent both here and in the

lower courts on its head and create unwarranted

inconsistency in First Amendment jurisprudence that

has been well-established for decades.

The race-relations progress made in rural Texas

— where an African-American female can be and is

routinely elected to an at-large city council seat is

real. While Petitioners have a right to hold extreme

views of race relations, their assertions of their

motives and the acts of Ms. Jenkins and her

colleagues are still subject to a credibility review by a

jury. Given the jury’s findings here, this case is in

fact quite the opposite of the “ideal vehicle” to revisit

the Petition Clause Petitioners claim it to be. The

evidence presented to the jury _— successfully

demonstrated that the Petitioners did more than

merely report, but very colorfully embellished, then

3

repeated, the allegations to more than a

governmenta! official.

STATEMENT

On November 20, 2002, Paul Martin Clark

attended a City Council meeting in Athens, Texas on

behalf of Black Citizens for Justice, Law, and Order,

Inc. (““BCJLO”). See Pet. Appx. at 4a. There is a

history of racial tension between some black citizens

of Athens and the city’s police department. The

ostensible purpose for Mr. Clark’s visit was to take

notes on citizens’ concerns and communicate those

concerns to United States Congressman Pete

Sessions and the Department of Justice (“DOJ”). Id.

at 5a. According to Mr. Clark, the City Council

meeting lasted less than ten minutes. /d. at 41a.

Afterward, Mr. Clark convened with a handful of

citizens at a private residence to further discuss

racial concerns in Athens. /d. at 5a.

I. THE DEFENDANTS SUBMIT A MEMORANDUM

FILLED WITH OUTRAGEOUS ALLEGATIONS OF

MURDER, PROSTITUTION, AND KLAN ACTIVITY.

The day after attending the City Council meeting

and the subsequent private meeting, Mr. Clark

delivered a Memorandum (the “Clark Memorandum”)

to Daisy Evella Joe, BCJLO’s Chief Executive Officer.

Id. at 6a. The Memorandum advanced an assortment

of shocking, wholly uncorroborated and ultimately

untrue accusations against Athens’ mayor, city

council members, police force, newly hired police

chief, and even Congressman Sessions’ own office.

Id. at 42a. The Clark Memorandum brazenly stated

as fact that Athens had “recruited a police chief with

racist credentials to continue the legacy of unchecked

4

murder of black citizens in Athens,” that “a black

man was killed by the Athens police some three

weeks ago” without any subsequent investigation,

that the Athens police beat a woman who was nine

months pregnant, killing her unborn child, and

chained her naked to a bed in the county jail, that the

Athens police and “the Klan” are “one in the same,”

and that “[t]he Athens police intimidate, harass and

murder black residents on a daily basis.” Jd. at 41a-

45. Additionally, the Memorandum suggested that

members of Congressman Sessions’ staff have ties to

the Ku Klux Klan. /d.

To be sure, many of the statements contained in

the Memorandum could be grounds for libel against

many, but this case arises solely out of the

allegations in the Memorandum against Athens City

Council member Gladys Elaine Blanton Jenkins.

Specifically, the Clark Memorandum baldly charged

that Ms. Jenkins — the only African-American City

Council member, a mother of three, and an ordained

minister — “is a convicted felon having served prison

time in Texas and California for prostitution and

drugs.” Jd. at 42a. Although the Memorandum cited

no source for the accusation, it issued a call to action:

“No one in the State of Texas can hold elective office

who has felony convictions. She must be removed

from office immediately.” Jd. !

Ms. Joe briefly glanced at the Clark

Memorandum before sending it to Congressman

Sessions and the DOJ. 7d. at 6a. At no time while

preparing, reviewing, or forwarding the

' Under Texas law, convicted felons may not hold public

office. TEX. ELEC. CODE § 141.001(a)(4).

5

Memorandum did Mr. Clark, Ms. Joe, or anyone else

at BCJLO investigate or otherwise attempt to verify

the serious allegations that it contained. Id.

Congressman Sessions forwarded the Memorandum

to Athens’ mayor, who in turn shared it with the city

administrator and police chief. /d. at 7a-8a. They

subsequently met with Ms. Jenkins, who

volunteered, albeit with great humiliation, to submit

to fingerprinting and investigation by the Athens

police and the Texas Rangers to determine whether

she had a criminal history. Jd. at 8a She did not. Id.

BCJLO later picketed Congressman Sessions’ Dallas

office for some months, repeating the demand that

Jenkins be removed from office based on her

nonexistent criminal history. 3 RR 58, 62.

II. ON EVIDENCE CHALLENGING THE PETITIONERS’

ACTS AND MOTIVES, MS. JENKINS OBTAINS A

FAVORABLE JURY VERDICT OF MALICE.

On February 23, 2003, Ms. Jenkins filed suit

against Mr. Clark and BCJLO for defamation and

libel. Ms. Jenkins’ claims were tried to a jury over

two days. Multiple witnesses disputed Clark’s

characterization of events at the city council meeting

and at the private meeting. See Pet. Appx. 30a, 34-

35a. The jury returned a verdict against Mr. Clark

and BCJLO, awarding Ms. Jenkins $300,000 for past

and future damages due to mental anguish, injury to

character and/or reputation and injury to her

standing in the community. Jd. at 47a. She was also

awarded exemplary damages of $100,000 each

against BCJLO and Clark, for a total of $500,000. Id.

The Texas Court of Appeals for the Seventh

District of Texas affirmed in an opinion that turned

almost exclusively on state law. The court rejected

6

Petitioners’ argument that the right to petition is

somehow distinct — insofar as immunity from libel is

concerned — from the rest of the First Amendment,

including the freedom of speech. Applying Texas law,

the court found “persons who exercise their right to

petition do so in the absence of absolute immunity

and may be held hable for their communications if

the plaintiff is able to make a showing sufficient to

satisfy the New York Times standard for ‘actual

malice.” Jd. at 14a. In other words, Petitioners were

entitled only to qualified immunity. /d. The Court of

Appeals found that the Noerr-Pennington doctrine,

which holds that petitioning the government to take

anticompetitive action does not violate antitrust

laws, has no application in this case. /d. at 23a. The

Court of Appeals further noted that’ the

Memorandum was not sent to Congressman Sessions

or the DOJ as part of a legislative proceeding, but

rather in an effort to instigate an investigation. /d.

at 2la. Thus, even to the extent that petitioning

activity is entitled to some privilege, the activity in

this case would not be entitled the furthest reaches of

that protection.

Additionally, the Court of Appeals recognized

that the jury disbelieved Mr. Clark’s testimony that

he was a mere scrivener who recorded what was said

at the meetings, and found that the jury could have

inferred that Mr. Clark “made up” or “imagined” the

facts underlying his statement related to Ms.

Jenkins, or falsely and recklessly reported what he

actual heard. /d. at 40a. As the Court of Appeals

concluded, “At best, Clark repeated in writing a false,

scandalous rumor consisting of trumped up felony

charges, convictions, and imprisonment in

7

furtherance of removing Jenkins from office. At

worst, Clark made up or imagined the [allegations].

In either instance, . . . Clark acted with ‘actual

malice’ by clear and convincing evidence.” /d.

Petitioners do not and, at this stage, cannot dispute

the jury’s factual] determination.

On June 17, 2008, BCJLO filed a petition for

discretionary review in the Texas Supreme Court.

On September 26, 2008, that court refused review.

BCJLO filed a motion for rehearing, which the Texas

Supreme Court denied on December 5, 2008.

REASONS FOR DENYING THE PETITION

This Court’s controlling precedent in McDonald

makes abundantly clear that the Petition Clause of

the First Amendment does not provide an absolute

privilege to engage in hbel. But in an effort to

convince the Court to now abandon its earlier ruling

and unravel the past quarter century of precedent,

Petitioners mischaracterize McDonald as a wrongly

decided aberration that has been the subject of

substantial judicial and scholarly criticism. To the

contrary, the criticism of the decision is relatively

limited and, indeed, no more pronounced than the

ordinary and typical criticism incurred by virtually

any substantive precedent established by this Court.

More importantly, the McDonald decision is

consistent with the Court’s treatment of the Petition

Clause, the Freedom of Speech, and hbel law in other

contexts, and is the only viable outcome that protects

the various competing interests at play in this corner

of First Amendment jurisprudence. In all events,

this case is hardly the “ideal vehicle” that Petitioners

claim it to be for revisiting McDonald insofar as the

8

communication by Mr. Clark and BCJLO was not

made in the course of legislative or judicial

proceedings and thus occupies only the outer edge of

.the Petition Clause’s protective scope. Likewise,

contrary to Petitioners’ assertions, this case would

not provide a proper opportunity to resolve conflicts

regarding the punishment of republication insofar as

the jury’s findings render that question largely moot.

I. MCDONALD Vv. SMITH HAS GONE LARGELY

UNCHALLENGED FOR NEARLY A QUARTER

CENTURY

In the decades since the Court issued the

McDonald decision, lower courts have relied upon it

more than 250 times. Indeed, the Federal Courts of

Appeal have been unwavering in their adherence to

the decision, applying it not just for its direct holding

that the Petition Clause does not provide absolute

privilege against libel, but also for the overarching

principle that there is no hierarchy of rights in the

First Amendment. In short, McDonald has become

an interwoven part of the First Amendment

jurisprudence of virtually every federal appellate

court.?

2 See, e.g., Jenkins v. Rock Hill Local Sch. Dist., 513 F.3d

580, 587 (6th Cir. 2008) (holding that the rights of speech in the

constitution are inseparable); Cobb v. Pozzi, 363 F.3d 89, 105

(2d Cir. 2004) (citing McDonald for the principle that there is no

hierarchy of rights in the First Amendment); Cardtoons, L.C. v.

Major League Baseball Players Ass’n, 208 F.3d 885, 891 (10th

Cir. 2000) (agreeing that the right to petition is not an absolute

protection from liability); Colson v. Grohman, 174 F.3d 498, 507

(5th Cir. 1999) (confirming that intentional or reckless falsehood

“enjoys no First Amendment protection”); Grigley v. City of

Atlanta, 136 F.3d 752, 755-56 (11th Cir. 1998) (citing McDonald

to hold that the Petition Clause is not entitled to any greater

9

While Petitioners suggest that the decision has

been roundly criticized in ensuing years, they in fact

point to only a small handful of selectively culled law

review articles — from which they claim a “scholarly

consensus” — and a single concurring opinion by a

state court judge. See Pet. Br. at 21-23. If the mere

existence of scholarly criticism were grounds to

revisit and reverse earlier precedents, however, this

Court would be busying itself reconsidering hundreds

of otherwise settled precedents ranging from

Marbury v. Madison’ to Brown uv. Board of

(continued...)

protection than the Free Speech Clause); Rendish v. City of

Tacoma, 123 F.3d 1216, 1220-21 (9th Cir. 1997) (citing

McDonald to state that the right to petition is “cut from the

same cloth as the other guarantees of [the First] Amendment”);

San Filippo v. Bongiovanni, 30 F.3d 424, 437-38 (3d Cir. 1994)

(noting McDonald to hold that the scope of the right to petition

depends on the context in which that right is exercised); White

Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1059 (2d Cir.

1993) (holding that right-to-petition claims are also governed by

interest-balancing principles and _ subject to the same

constitutional analysis as the right to free speech); Wright v.

DeArmond, 977 F.2d 339, 346 (7th Cir. 1992) (holding that the

right to petition has never been considered an absolute right);

Thorne v. Bailey, 846 F.2d 241 (4th Cir. 1988) (confirming the

Petition Clause does not enjoy a preferred place among First

Amendment freedoms); Jn re JBP Confidential Bus. Documents

Litig., 797 F.2d 632, 640 (8th Cir. 1986) (stating that McDonald

“clearly underscores the coequal status of the right to petition

with other first amendment rights”); Webster v. Sun Co., Inc.,

790 F.2d 157, 161-62 (D.C. Cir. 1986) (stating that the

constitutional protection of the right to petition does not require

states to provide an absolute privilege for all communications

with government).

3 See, e.g, Michael Klarman, How Great Were the "Great"

Marshail Court Decisions?, 87 VA. L. REV. 1111, 1117 (2001)

10

Education.4 Similarly, a single criticism of the

decision by a concurring judge on a state court is not

suitable grounds to revisit this well-established

precedent, particularly where as in this case, none of

that judge’s colleagues joined his criticism. See J&J

Constr. Co. v. Bricklayers & Allied Craftsmen, 664

N.W.2d 728, 735 (Mich. 2003) (Young, J., concurring).

Simply put, none of the “criticism” cited by

Petitioners amounts to cause for reconsideration of

McDonald.

II. MCDONALD WAS CORRECTLY DECIDED

While Petitioners decry McDonald as

“inconsistent” with other precedents and attempt to

position the right to petition on a pedestal high above

(continued...)

(describing Marbury's arguments in defense of judicial review as

“thoroughly unpersuasive”); David P. Currie, The Constitution

in the Supreme Court: The Powers of the Federal Courts, 1801-

1835, 49 U. CHI. L. REV. 646, 651-66 (1982) (concluding that "we

are left with no obvious peg on which to hang Marshall’s

conclusion”).

4 See, e.g., Alfred Avins, De Facto and De Jure School

Segregation: Some Reflected Light on the Fourteenth

Amendment from the Civil Rights Act of 1875, 38 Miss. L. J. 179,

246 (1967) (“[T}he rule of Brown v. Board of Education is not

now, nor has it ever been, the supreme law of the land. Rather,

it is an unwarranted exercise of non-existent authority which,

being illegitimate in its origin, cannot be made legitimate by the

lapse of time, nor by compliance, voluntary, purchased, or

coerced.”); Richard Posner, Bork and Beethoven, 42 STAN. I..

REV. 1365, 1374 (1990) (“No constitutional theory that implies

that Brown v. Board of Education . . . was decided incorrectly

will receive a fair hearing nowadays, though on a consistent

application of originalism it was decided incorrectly.”).

ll

other core First Amendment rights, the outcome they

advocate would in fact run contrary to the most

fundamental principles of First Amendment law—

namely that “there is no constitutional value in false

statements of fact,” Gertz v. Robert Welch, Inc., 418

U.S. 323, 339 (1974) — and would be a detriment to

the very speech and petition rights that they purport

to embrace and protect.

A. The First Amendment Does Not Protect A

Deliberate or Reckless Falsehood,

Regardless Of Whether It Constitutes

Political Speech Or A Petition To The

Government

Petitioners’ entire argument is premised on their

objection to the Court’s conclusion in McDonald that

“[t]he right to petition is cut from the same cloth as

the guarantees of [the First] Amendment.” 472 U.S.

at 482. According to Petitioners, the right to petition

is different: it “was the preeminent right” and is

“preferred” and “superior” to the other rights secured

in the First Amendment. See Pet. Br. at 20, 23. That

understanding, however, is directly at odds not only

with McDonald but with myriad other decisions of

this Court, dating back several decades, which

identify political speech as the preeminent right

secured in the First Amendment.

Indeed, this Court has repeatedly held that

“[plolitical speech ... 1s at the core of the Furst

Amendment.” Shapero v. Kentucky Bar Ass'n, 486

U.S. 466, 483 (1988); see also Morse v. Frederick, 551

U.S. 393 (2007)( “Political speech, of course, is ‘at the

core of what the First Amendment is designed to

protect.”’); Virginia v. Black, 538 U.S. 343, 365 (2003)

(same); R.A.V. v. City of St. Paul, Minn., 505 U.S.

12

377, 422 (1992) (“Core political speech occupies the

highest, most protected position”). And, yet, even

this right is not absolute. See Burson v. Freeman,

504 U.S. 191, 211 (1992) (upholding ban on

campaigning with 100 feet of polling stations on

election day); Schenck v. United States, 249 U.S. 47,

52-53 (1919) (upholding criminal conviction for

circulating pamphlets opposing the draft in World

War I). |

To be clear, the Court has resisted elevating any

one First Amendment right above the others in the

manner that Petitioners urge. Nonetheless, to the

extent that varying levels of protection exist, it would

be absurd to suggest that the right to petition enjoys

greater protection than the right to engage in core

political speech. See Fed. Elec. Comm’n v. Wisc.

Right to Life, 551 U.S. 449, __, 127 S.Ct. 2652, 2686

(2007) (“It is perhaps our most important

constitutional task to assure freedom of political

speech.”). Even this most exalted form of speech

yields to defamation law. Chaplinksy v. New

Hampshire, 315 U.S. 568, 572 (1942).

In Chaplinksy, the Court held that “[a]lthough

honest utterance, even if inaccurate, may further the

fruitful exercise of the right of free speech, it does not

follow that the lie, knowingly and _ deliberately

published about a public official, should enjoy a like

immunity.” Id. Like Petitioners here. the

Chaplinksy Court looked to history to determine the

proper balance between protecting the freedoms

found in the First Amendment and guarding against

the dissemination of falsehood, but reached a very

different conclusion:

13

At the time the First Amendment was

adopted, as today, there were those

unscrupulous enough and skillful enough to

use the deliberate or reckless falsehood as an

effective political tool to unseat the public

servant .... That speech is used as a tool for

political ends does not automatically bring it

under the protective mantle of the

Constitution.

Id. In other words, this Court has long recognized

that the harm caused by the communication of

knowingly false and defamatory statements—even

when done under the auspice of core political

speech—is a serious threat to democratic

government. Indeed, the facts in this case—in which

Mr. Clark and BCJLO knowingly communicated

falsehoods as a tool to unseat Ms. Jenkins—are

identical to risks contemplated (and carefully

avoided) by the Court.

Indeed, none of this should come as a surprise.

As Justice Holmes famously observed in Schenck,

“(t]he most stringent protection of free speech would

not protect a man in falsely shouting fire in a theatre

and causing a panic.” 249 U.S. at 52. In this case,

creating a new and distinct zone of absolute

immunity would do little more than invite mayhem

in connection with, among other things, confirmation

hearings and other’ essential governmental

proceedings.

B. McDonald Can Readily Be Reconciled

With The Noerr-Pennington Doctrine

Petitioners claim that McDonald is’ in

‘“Irreconciiable conflict” with the so-called Noerr-

14

Pennington doctrine. See Pet. Br. at 23 (citing E.R.R.

Presidents Conf. v. Noerr Motor Freight, Inc., 365

U.S. 127 (1961); United Mine Workers of Am. v.

Pennington, 381 U.S. 657 (1965); Cal. Motor Transp.

Co. v. Trucking Unlimited, 404 U.S. 508 (1972)).

That doctrine holds, in effect, that petitioning the

government to take anticompetitive action does not

violate antitrust laws. See City of Columbia v. Omni

Outdoor Adver., Inc., 499 U.S. 365, 379-80 (1991). In

attempting to characterize the doctrine as indicating

that the Petition Clause is so robust that it must

afford absolute immunity against liability in all

contexts, however, Petitioners fail to appreciate that

the truthfulness of a statement or petition is an

essential prerequisite to acquiring constitutional

protection in the first instance. If the statement

itself is known to be a lie, there is no constitutional

protection to invoke and doctrines Petitioners invoke,

such as Noerr-Pennington, never come into play.

It is well established in this Court that “the

knowingly false statement and the false statement

made with reckless disregard of the truth, do not

enjoy constitutional protection.” Garrison ov.

Louisiana, 379 U.S. 64, 75 (1964); see also Gertz, 418

U.S. at 339 (“no constitutional value in false

statements’). Indeed, “the use of the known lie as a

tool is at once at odds with the premises of

democratic government and with the orderly manner

in which economic, social or political change is to be

effected.” Chaplinksy, 315 U.S. at 572.

The calculated falsehood falls into that class of

utterances that “are no essential part of any

exposition of ideas, and are of such slight social value

as a step to truth that any benefit that may be

15

derived from them is clearly outweighed by the social

interest in order and morality.” Jd. Thus, before the

First Amendment guarantees even apply in the first

instance to provide a privilege of any sort, the

underlying statement/petition must be — as an

essential prerequisite — at least subjectively believed

to be truthful. Only then, if a communication is not a

deliberate or reckless falsehood, does the Petition

Clause apply to provide immunity against antitrust

laws. Consequently, the “irreconcilable conflict”

between McDonald and WNoerr-Pennington that

Petitioners assert simply is not a conflict at all.

C. Petitioners’ Preferred Interpretation

Would Be Detrimental To Democratic

Government

Petitioners characterize their argument as

protecting the right of ordinary citizens to petition

their congressman and other government officials.

See Pet. Br. at 28. The right to petition one’s

congressman or other government official is not at

issue, however. Rather, this case concerns whether

citizens have the constitutional right to lie to their

congressman.

If, as Petitioners urge, the Petition Clause affords

absolute privilege to every communication made by a

citizen to the government, it would eliminate an

essential safeguard of public discourse and encourage

the use of deliberate and reckless falsehood as a tool

to effectuate political change — directly contrary to

this Court’s earlier admonitions. See Chaplinksy, 315

U.S. at 572. Genuine, honest efforts to petition the

government for redress would risk being drowned out

in the rushing tide of reckless and _ false

communications. Legislators and other officials

16

would have absolutely no implied filter of subjective

bona fides in the myriad public communications they

receive. Instead, they would be faced with the

difficult choice between expending valuable resources

to sift through and investigate the increased number

of fanciful or knowingly false allegations or simply

ignoring constituents’ complaints altogether. To be

sure, the right to petition does not require the

government to review or respond to the petitions it

receives. Minn. State Bd. for Cmty. Colls. v. Knight,

465 U.S. 271, 285 (1984) (“Nothing in the First

Amendment or in this Court's case law interpreting it

suggests that the rights to speak, associate, and

petition require government policymakers to listen or

respond to individuals’ communications on _ public

issues.”). Thus, by eliminating the only deterrent

and thereby increasing the volume of unreliable and

defamatory petitions, Petitioners’ preferred outcome

would actually diminish the value of those petitions

altogether.

Additionally, the outcome urged by Petitioners

would leave public officials at all levels of

government — including many who, like Ms. Jenkins,

serve in volunteer or low-paying positions in their

local towns and municipalities —- vulnerable to any

and all accusations levied against them under the

guise of petitioning, regardless of merit. Would-be

defamers would lack any deterrent and_ those

defamed would lack any concomitant recourse. An

absolute privilege would discourage civic involvement

for fear of being savaged by extremists of all stripes.

This is hardly what the framers intended.

In short, there is no conflict to resolve or error to

correct regarding this Court’s decision in McDonald.

17

The right of citizens to petition the government is as

robust and complete today as it was ever intended to

be, affording a qualified privilege to all citizens to

petition their government without fear of punishment

— subject only to the simple requirement that the

citizens not deliberately or recklessly communicate

falsehoods when they do so. This limitation, as

discussed above, is wholly consistent with the intent

of the framers as well as this Court’s other

precedents.

Ill. THIS CASE IS ILL-SUITED AS A MEANS To

REVISIT MCDONALD

Even if this court were inclined to revisit the

McDonald decision, this case is simply the wrong

vehicle for doing so. Simply put, not all

communications to the government are of the same

value or substance, and thus do not acquire the same

degree of constitutional protection under the Petition

Clause. The paradigmatic petition to the government

is a complaint. Cf. McDonald, 472 U.S. at 484

(“Fjiling a complaint in court is a form of petitioning

activity.”). On the other hand, innumerable other

forms of communications of varying degrees of

formality exist. Not all communications to all public

officials fall within the full, most-robust protections

of the Petition Clause. Various lower courts have

explored this spectrum of varying protection and

indeed, applying Texas common law, the Court of

Appeals in this case found that the communications

by Mr. Clark and BCJLO did not constitute petitions

of the highest degree and are thus entitled to lesser

constitutional protection.

Texas has developed substantial case law

recognizing two classes of possible privilege for a

18

communication to the government. See Hurlburt uv.

GulfAtlantic Life Ins. Co., 749 S.W.2d 762, 768 (Tex.

1987). If a communication is made in a legislative,

.executive, or judicial proceeding, it is afforded

absolute privilege. See Zarate v. Cortinas, 553 S.W.2d

652, 654 (Tex. Civ. App. — Corpus Christi 1977, no

writ); Koehler v. Dubose, 200 S.W. 238, 242-43 (Tex.

Civ. App. — San Antonio 1918, writ refd).5 This

limited guarantee of absolute immunity is “founded

absolutely on public policy” and is granted “in the

interest of the public welfare.” Koehler, 200 S.W. at

242. Communications outside this narrow scope,

however, are entitled only to a qualified privilege,

which is defeated by a showing of actual malice. See

Hurlburt, 749 S.W.2d at 767-68; Zarate, 553 S.W.2d

at 655.

The court below’ held that Petitioners’

communication was not made in a _ legislative,

executive, or judicial proceeding. Petitioner

addressed his Memorandum to a public official who

lacked the subpoena power to conduct a formal

investigation or the authority to remove Respondent

from office. At most, Congressman Sessions could

have informally gathered information and referred

matters to the appropriate authorities. Thus, the

communication to Congressman Sessions did not

warrant absolute privilege under Texas common law.

Similarly, Petitioner’s communications to the

DOJ’s Civil Rights Division were not made in a

legislative, executive, or judicial proceeding. By

Petitioner’s own admission, the communication in

° Under Texas jurisprudence, a court of appeals’ decision

with a “writ refused” designation has the same precedential

value as an opinion from the Supreme Court of Texas.

19

question was intended simply to instigate an

investigation rather than assist an ongoing

investigation. Therefore, Petitioner’s communication

to the DOJ also fell outside the scope of the most

protected forms of petitioning and was not entitled to

an absolute privilege under Texas law.

In addition to underscoring the extent to which

the core determinations in this case hinged on state,

rather than federal law, the application of Texas law

in this case to distinguish communications that enjoy

absolute privilege from those that receive a qualified

privilege is also consistent with post-McDonald

developments in the federal courts. See, e.g., Foraker

v. Chaffinch, 501 F.3d 231, 236 (3d Cir. 2007) (noting

that “[pJetitions made through informal channels

may occasion a lesser degree of constitutional

protection than their formal counterparts”); San

Filippo v. Bongiovanni, 30 F.3d 424, 439 (3d Cir.

1994) (recognizing that lawsuits and _ formal

grievances, as opposed to mere letters, purport to

invoke formal mechanisms for the redress of

grievances and as such, are subject to a different

standard of analysis); Schalk v. Gallemore, 906 F.2d

491 (10th Cir. 1990) (holding that when “the ‘petition’

at issue fis] simply a letter imposing on the

governiment no obligation to respond”).

IV. THIS CASE IS NoT A PROPER VEHICLE TO

CLARIFY COMMON LAW REGARDING

REPUBLICATION

Petitioners also assert that “this case provides an

opportunity for the Court to resolve conflicts among

the lower courts regarding when republication may

be punished.” Pet. Br. at 31. Specifically, Petitioners

argue that “lower courts have been unable to fashion

20

a coherent, reliable framework for determining

whether and to what extent speakers that merely

‘report’ the allegations of others are immunized by

the First Amendment from libel suits.” Pet. Br. at

33. The problem with this argument as a basis to

erant certiorar! 1n this case, however, is that —

according to the jury and the Court of Appeals —

Petitioners did not merely “relay allegations” but

rather adopted those allegations as their own and

even embellished them. Pet. Appx. at 33a-35a.

Petitioners acknowledge that “[m]ost courts do

not consider the doctrine applicabie to reports that

espouse the validity of the allegations themse}ves.”

Pet. Br. at 33. And some courts have rejected the

doctrine altogether. Jd. Indeed, Petitioners cannot

point to any court with a_ sufficiently broad

interpretation of that doctrine to encompass the

activities giving rise to liability in this case. As the

Court of Appeals noted, “[nlowhere in the

Memorandum are the facts or information described

as merely the recordation of statements made during

meetings of Athens’ city government or its concerned

citizens.” Pet. Appx. at 33a. The Court of Appeals

further held:

Given the gross discrepancies regarding

Clark’s account of what transpired at the City

Council workshop and apparently false

allegation and statements contained in his

Memorandum, a jury could readily infer that

Clark misrepresented facts and states false

allegations and opinions in order to attain his

predetermined _ goals. This includes

embellishing Burke’s allegations related to

21

Jenkins to include convictions as well as

imprisonment in multiple states.

Id. at 35a.

Simply put, this case — far from “cleanly

present[ing] the core question” concerning neutral

reportage — does not present that question at all.

Indeed, even weeks after circulating the original

Memorandum, BCJLO persisted in organizing

protests calling for the removal of Ms. Jenkins from

the City Council based on the false allegations. As

the jury found, this is a case in which the Petitioners

far exceeded mere reporting and affirmatively

manipulated and misrepresented information to

achieve the goal of removing a public official from

office.

This Court has already made it clear that in

cases such as this one where the “reporter”

embellishes or alters what he is reporting or

otherwise advances his own position, actual malice

exists. See Masson v. New Yorker Magazine, Inc., 501

U.S. 496, 517 (1991) (deliberate alteration is proof of

reckless disregard); Cantrell v. Forest City Publ’g Co.,

419 U.S. 245, 253 (1974) (same). This case, therefore,

does not actually present the question that

Petitioners offer as the final possible basis for this

Court’s review, but is instead a case that was

properly decided by a jury and which does not merit

review now.

CONCLUSION

The petition for a writ of certiorari should be

denied.

May 29. 2009

bo

bo

Respectfully submitted,

DAVID J. SCHENCK

(Counsel of Record)

RICHARD D. SALGADO

JONES DAY

2727 North Harwood St.

Dallas, TX 75201-1515

Tel: (214) 220-3939

SUSAN HAYS

GEISLER HAyYs, LLP

2911 Turtle Creek Blvd.,

Ste. 940

Dallas, TX 75219

Tel.: (214) 367-6020

Counsel for Respondent