That blog post title could have come from only one place: Balkinization. Is the steroid story about, among others, Roger Clemens, evidence or proof that the malice requirement in statements or publications about public figures in order for them to maintain a defamation action a bad idea?
Why do you want to talk about that on a Friday afternoon, Spotty? We were all looking forward to getting out a little early!
Sorry grasshopper. But it's a very important lesson in First Amendment jurisprudence.
Sit down guys, we'll be here for a while.
Here's the scenario posed by Professor Jack Balkin in the linked post. Suppose Roger Clemens is innocent of the allegations of steroid use made against him by the Mitchell report. What remedy does he have? If he sues the former senator George Mitchell and the other authors of the report for defamation, he will surely lose because he will be unable to prove that these authors acted maliciously. His reputation is surely in ruins, but he can't recover damages.
Is Roger Clemens innocent, Spotty?
This is where Spot has to tell you a little bit about law professors, grasshopper. Law professors never tell you anything; they just ask questions, and knowledge is supposed to be magically revealed to you thereby. It sounds odd, Spot knows. Here, Professor Balkin is also doing something else that law professors like to do, "play with the facts."
You mean that Professor Balkin is NOT claiming that Roger Clemens is innocent?
Heavens no, grasshopper!
Then why is he worried about whether Roger Clemens can sue George Mitchell?
Because that is what law professors do, grasshopper.
It seems like Professor Balkin would have enough real things to worry about without making stuff like this up.
He isn't really making things up, grasshopper. He just wants us to explore the consequences of a particular legal rule by using a current set of facts and hypothetical variations on the facts.
The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity). Under this new standard, Sullivan's case collapsed.
In that celebrated case, a southern law enforcement official had sued the New York Times for defamation, claiming that its civil right era reporting about him was false. That was a favorite tactic to discourage northern newspapers from reporting about civil rights in the south. The Supreme Court said that as long as the reporting was not malicious, it would protect the dissemination of information about public officials even if the information proved to be false, because of the importance of a free flow of information about the public's business. A later ruling, Gertz v. Welch, extended the rule to cover public figures as well as public officials.
Professor Balkin makes the same point here: the value to the public at large of having information about steroid use in professional sports outweighs Roger the Rocket's reputational interest. And as the professor points out, Roger Clemens is a big boy—perhaps an unusually big one—who can still call press conferences and get the public's attention in other ways if he believes he has been unfairly accused. As a public figure he can do that, which is one reason that different rules should apply to public and private figures.
Which brings us to today's lesson.
You mean that wasn't it? There's more?
Be patient grasshopper; this won't take long.
We like the rule as it applied in Times v. Sullivan, and we may be willing to accept it even if Roger the Rocket were to demonstrate his innocence. But what about the case where the publisher of the statements, arguably false, is loathsome? There is just such a case arising out the defeat of the Robbinsdale school levy referendum last month. Spot will quote liberally from the linked Strib article, since it won't be up much longer:
An anti-levy group whose tactics were described by Robbinsdale's superintendent as "racist, without conscience and untruthful" filed suit against the state Thursday, claiming its First Amendment rights have been violated.
The 281 CARE Committee, whose campaign helped defeat tax levy for the Robbinsdale School District on Tuesday, sued the state over its statute that bans factual distortions relating to school referendums.
"I'm amazed that any side in any election would take a preemptive move to say, 'We want to have the right to lie or use untruths in our election,'" Charlie Kyte, executive director of the Minnesota Association of School Administrators and a former Northfield superintendent, said of the suit.
The suit was started in a race to the courthouse door, since the anti-levy group got wind that Superintendent Stan Mack and the Robbinsdale school system were going to sue it for defamation over some of the campaign statements.
The state's rule does seem to impose a test of truthfulness for statements made in a levy campaign, which is clearly the public's business. If we look at the reasoning behind Times v. Sullivan, we can see that such a rule, with no requirement of maliciousness, fails the test. Perhaps a rule could be crafted that would only address unprotected malicious speech, but Minnesota's rule is almost certainly unconstitutionally broad.
Is that it, Spotty?
One more thing, grasshopper. Even if that anti-levy group wins its lawsuit against the Minnesota rule, it doesn't mean that the people in this group couldn't be successfully sued for defamation if it was proved their statements were not only false, but malicious.