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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2009

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0263%3A2. Public record. Not legal advice.