MCDONALD v. SMITH
Legal provision: Petition Clause
ORAL ARGUMENT OF BRUCE JAMES ENNIS, JR., ESQ. ON BEHALF OF THE PETITIONER
Chief Justice Warren E. Burger: Mr. Ennis, you may proceed whenever you're ready.
Bruce James Ennis Jr: Mr. Chief Justice and may it please the Court, the question is whether the Federal Government's need to obtain information about candidates seeking appointment to federal office, together with the right of a citizen to provide that information in a petition addressed only to appropriate federal officials, requires the same immunity from common law libel actions this Court has already afforded both citizens and governmental officials in a broad range of other circumstances in which providing only qualified immunity would unduly impair the effective functioning of government.
In each of those other circumstances, the fact that immunity would protect not only truthful and useful communications, but also, on occasion, knowingly false and defamatory communications, has been considered a necessary cost of government.
As Justice Harlan wrote for the Court in Barr v. Matteo, affording executive officials immunity from libel actions alleging knowing falsity,
"It has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. "
Unidentified Justice: Mr. Ennis, do you read any constitutional dimension into Barr v. Matteo?
Bruce James Ennis Jr: No, Your Honor, I do not.
I believe that Barr v. Matteo and other decisions of this Court affording immunity to governmental officials is not based on any specific clause of the Constitution.
None was referred to.
But I do believe they were constitutional decisions in the sense that the Court felt that the very constitutional structure of our government required such immunity.
Unidentified Justice: I never read Barr v.... I don't think there's a word about the Constitution in Barr v. Matteo.
I've always thought it was a District of Columbia doctrine.
Bruce James Ennis Jr: Your Honor, there is not a word about the Constitution in Barr v. Matteo, but the Court nevertheless thought, even though there was no constitutional right of a governmental official at issue, that the effective functioning of the government itself was sufficient to require the rule of immunity.
In this case, we have not only that same governmental interest, but in addition the interest of the citizen critic expressly grounded in the petition clause of the First Amendment.
Unidentified Justice: Well, what's the source of the law we're dealing with here?
Is it all... is it just constitutional law?
The case was tried under North Carolina libel laws, wasn't it?
Bruce James Ennis Jr: The case has not yet been tried, Your Honor.
Unidentified Justice: Would it be tried under North Carolina libel law?
Bruce James Ennis Jr: It would be tried under North Carolina libel law as that law is modified and governed by the federal Constitution and also by the needs of the Federal Government to receive information.
For example, the Court has also ruled, not relying on any specific constitutional provision, that citizens have a right to provide information about criminal offenses to government; they have a right to testify before legislative and judicial bodies; and they have a right to provide petitions to the judicial branch of government, and they would be absolutely immune from libel actions in each of those circumstances.
We seek no more in this case.
In our view, there are two separate but in this case coinciding interests which require immunity.
The first is the interest of the Federal Government in effective functioning and the second is the interest of the citizen critic in providing the information the government needs to function effectively.
The basic facts--
Unidentified Justice: Well, you wouldn't say that it's necessary for the essential function of government to operate on false information.
Bruce James Ennis Jr: --Justice White, I know that you have taken pains to concur in several decisions stressing that the Constitution does not directly protect knowingly false information.
Unidentified Justice: And the Court has already said that, too.
Bruce James Ennis Jr: Yes, the Court has agreed with that, Your Honor.
Unidentified Justice: Yes.
Bruce James Ennis Jr: We do not contend that it does, and we do not need to contend that it does.
Unidentified Justice: But you have to make some other kind of an argument.
You have to make an argument that you have to lie... you have to accept some lies in order to get enough of the truth.
Bruce James Ennis Jr: That's exactly the argument that this Court has already accepted.
Unidentified Justice: But that may be true on one side of your argument, on the government interest, but what about the individual?
Bruce James Ennis Jr: They are--
Unidentified Justice: Does he have to be able knowingly to lie in order to give decent information to the government?
Bruce James Ennis Jr: --Your Honor, we are not seeking protection for the right to knowingly lie.
Unidentified Justice: Well, you are.
You say absolutely immunity.
It doesn't make any difference, you say, whether he's lying or not.
Bruce James Ennis Jr: Your Honor, we're seeking protection for the right to petition the government and to provide information to the government.
Unidentified Justice: And to tell lies in the process.
Bruce James Ennis Jr: Even if there may occasionally be knowing lies in the process.
Unidentified Justice: Well, what about on those occasions when he knowingly lies?
Now, what possible excuse... what basis has he got to claim absolute immunity?
Bruce James Ennis Jr: His basis, Your Honor, is the same basis that the United States itself identified in the case of Webb v. Fury.
We don't have to speculate about the federal interest.
In Webb v. Fury, the United States formally and explicitly took the position that citizens should be absolutely immune from common law libel actions when they provide petitions to federal agencies, even if those petitions are alleged to be knowingly false.
The reason, said the government, was--
Unidentified Justice: Alleged to be.
Bruce James Ennis Jr: --Pardon me, Your Honor?
Unidentified Justice: Alleged to be.
Bruce James Ennis Jr: Alleged to be.
That is all that is true in this case as well, Your Honor.
The reason for that was that any lesser degree of immunity, said the United States, would deprive the government of the information it needs to govern.
Unidentified Justice: Because?
Bruce James Ennis Jr: Because both governmental officials and citizens would be deterred from providing truthful and useful information to the government if they knew that merely upon an allegation that their communications were knowingly false, they would be required to spend literally thousands of dollars in unrecoverable defense costs to defend the truth of their statements.
That would silence both governmental officials and citizen critics from providing the information government needs.
Unidentified Justice: Webb v. Fury, was that a case in the Supreme Court of West Virginia?
Bruce James Ennis Jr: That's correct, Your Honor.
Unidentified Justice: And what?
The government filed an amicus brief?
Bruce James Ennis Jr: The United States went to the extraordinary length of filing both an amicus brief and an amicus reply brief.
Unidentified Justice: Have they filed any brief in this case?
Bruce James Ennis Jr: No, they have not, Your Honor.
I think that the interest of the Federal Government is on its face and, given Webb v. Fury, quite clear.
But if there be any doubt about that, the Court could of course invite the Solicitor General to follow through.
Unidentified Justice: I think the Solicitor General is usually quite aware when he figures the government's interests are involved.
Bruce James Ennis Jr: That's correct, Your Honor.
Unidentified Justice: Mr. Ennis, if a witness testifies in court, even in a matter of grave concern to the government, if the witness testifies falsely, the witness can be tried for perjury, can he not?
Bruce James Ennis Jr: That's correct, Your Honor.
Unidentified Justice: And yet there certainly is as great an interest in those circumstances in obtaining truthful information, both for the government and from the witness's standpoint.
And I take it in those circumstances, the witness isn't deterred from giving the truth, speaking the truth, because... despite the threat of prosecution for perjury.
Isn't that right?
Bruce James Ennis Jr: That is correct, Your Honor, and it raises a very important distinction.
Witnesses who testify in judicial proceedings are not immune from perjury prosecutions, but they are immune from common law libel actions.
We are not seeking immunity from every possible sanction.
For example, the Federal Government has already made it a crime to provide false information to the government, whether it's defamatory of a third party or not.
We are not seeking immunity from that kind of prosecution or from other sanctions.
We are only seeking the same immunity from common law libel actions that witnesses in judicial proceedings already have.
Unidentified Justice: But are not witnesses there, other than by their own free will?
Bruce James Ennis Jr: Some witnesses, Your Honor, are there other than by their free will.
Others are there by their own free will.
But the doctrine--
Unidentified Justice: Once they are there, they are compelled to answer all relevant questions, are they not?
Bruce James Ennis Jr: --That's certainly correct, Your Honor, but the rule applies not only to witnesses; even persons who simply file complaints with the judicial branch are absolutely immune from common law libel actions based on the statements contained in their complaints, and no one has compelled them to file such a complaint.
Unidentified Justice: Mr. Ennis... oh, excuse me.
Finish your answer.
Bruce James Ennis Jr: I see no compelling justification for affording petitions to the judicial branch of government immunity from common law libel actions, and not affording the same immunity for petitions to the legislative and executive branches, particularly when the petition is directly relevant to an important decision then under consideration by the executive and legislative branches.
There is no presumption, if I may say so, Your Honor, that it is more important to protect petitions to the judicial branch than it is to protect petitions the president and to the legislative branch.
Unidentified Justice: That's good background for the question I was going to ask you about the scope of your position.
Supposing you have somebody who's nominated to the cabinet, or district attorney, somebody like this.
Bruce James Ennis Jr: I'm sorry.
I did not hear.
Unidentified Justice: A nominee for some office that requires confirmation of the Senate.
And say a large pressure group like one of the big trade associations or the National Rifle Association have decided to oppose him.
Could they get together and write literally thousands of false letters accusing him of all sorts of personal wrongdoing and all the rest, and misstating his position and all the rest, get a regular campaign going... would all those letters be immune from any kind of libel action?
Bruce James Ennis Jr: Your Honor, so long... under our theory of the case, so long as the letters were addressed to appropriate officials of the Federal Government--
Unidentified Justice: To the chairman of the committee.
Bruce James Ennis Jr: --who were then considering a governmental decision, yes, they would be immune, not from all sanctions, but from common law civil libel actions.
Unidentified Justice: Which is probably the only sanction that's available for deliberate falsehood of that kind.
Bruce James Ennis Jr: Well, as I've indicated, there are already on the books statutes making it a crime to provide false information to the Federal Government, and he certainly could be prosecuted for that.
It is also conceivable, though I do not concede the point, that a state criminal prosecution for criminal libel could be pursued, though I am not willing to concede that such a prosecution would survive constitutional--
Unidentified Justice: What kind of a constitutional immunity is it that just protects you from a civil remedy but not from a criminal remedy?
Bruce James Ennis Jr: --Well, as I say, the federal criminal remedy would be different.
It would not be for the crime of providing defamatory information.
It would be for the crime of providing false information to the government, whether it was defamatory or not.
It is a crime, for example, to provide false information to the FBI.
Unidentified Justice: But if the... I am still a little puzzled.
If the communication is constitutionally privileged, notwithstanding its falsity, how can you be satisfied with a rule that would allow the Federal Government to prosecute the person for sending the same communication?
Bruce James Ennis Jr: Because, Your Honor, I'm making the same distinction I made in response to the question asked by Justice O'Connor, and that is, we are not seeking immunity from every conceivable sanction.
We are only seeking immunity from one particular sanction which is particularly likely to silence critics of--
Unidentified Justice: Where do you find that distinction in the language of the Constitution?
Bruce James Ennis Jr: --I find that distinction in this Court's decisions.
This Court has already ruled that judges, legislators, and executive officials are immune, not from every sanction, but immune from common law libel actions, even if their statements are alleged to be defamatory and knowingly false.
Unidentified Justice: Those are... as Justice Rehnquist points out, those are not constitutional decisions.
Bruce James Ennis Jr: --I believe they are constitutional in the sense, Your Honor, that they derive from the very structure of a republican form of government.
They are like the slaughterhouse cases, like In Re Quarles, like all of the foundation cases on which our Constitution and jurisprudence is based.
The Court in every one of those cases said that that kind of immunity, in the circumstances of that case, was necessary in order to ensure the effective functioning of government.
That's the literal language used in those cases.
I see no distinction here.
The government was actively considering an important governmental decision... whether to appoint Respondent to the office of United States Attorney, the chief law enforcement office in the Middle District of North Carolina.
That was obviously an important decision.
It required nomination by the President and the advice and consent of the Senate.
This was not some low level margin decision.
In order to make a responsible and effective decision on that candidacy, the government needed to obtain relevant information.
The letters that my client sent to the President are, on their face, highly relevant to the qualifications of Respondent for that office.
But if my client knew--
Unidentified Justice: Yes, but don't we have to assume that they are also false, and deliberately so, for purposes of deciding the case?
Bruce James Ennis Jr: --Your Honor, I have to concede that the rule I am arguing for would protect not only truthful communications--
Unidentified Justice: No, you have to concede that your client sent deliberately false letters, knowingly... I mean false letters that he knew were false.
That's the allegation which we must accept as true.
Bruce James Ennis Jr: --That's the allegation of the complaint.
It is specifically denied in the answer.
This case does not arise simply on a motion to dismiss.
Unidentified Justice: But for purposes of your appeal, you must assume it's true.
Bruce James Ennis Jr: I don't want to quibble with you, Your Honor.
I do want to make a point, however, that this is not just a motion to dismiss.
It's a motion for judgment on the pleadings, which includes the answer as well as the complaint.
Nevertheless, I would assume for purposes of this case that even if what my client wrote is knowingly false, it should be absolutely protected because it is the right of the Federal Government to decide for itself how to separate the false from the true.
The Federal Government certainly has mechanisms for doing that.
This letter was in fact addressed, one copy, to William Webster, the Director of the FBI who has statutory authority to investigate candidates for appointment to this very federal office.
And the FBI certainly has enormous resources for ferreting out truth and falsity.
Unidentified Justice: Suppose we have a vacancy here in the staff of our Court, the Clerk of the Court or something, and someone applies.
Are you suggesting the same freedom would be accorded if a person wrote to the Court, wrote to me and said this fellow is a scoundrel, he's a Communist, he's a bankrobber, unreliable?
Bruce James Ennis Jr: Yes, Your Honor.
If you were making a decision whether to hire a certain person, for example, as your law clerk and if a citizen had information concerning the qualifications of that person, I would take the position that the citizen would have the right to send you a letter expressing his views and that those views would be immune from a civil libel action, though not from other possible sanctions, whether they are true or false.
Unidentified Justice: So republican form of government.
Bruce James Ennis Jr: Your Honor, both because--
Unidentified Justice: That's the nearest... I've been listening.
I'm quite interested.
That's the nearest you've gotten to point to any provision of the Constitution, and you're miles away from that one.
Bruce James Ennis Jr: --Your Honor, both because of republican form of government... that's the federal interest... and also because of the petition clause of the First Amendment.
The history of the petition clause, I think, is overwhelmingly clear.
In fact, the Respondent does not even deny--
Unidentified Justice: I think it's one of the clearest puddles of mud I've seen in a long time.
Bruce James Ennis Jr: --Well, Your Honor, I don't wish to seem disrespectful, but in our brief we refer to the fact that in a parliamentary resolution of 1669, in Lake v. King in 1680, in the Seven Bishops case of 1688, in the English Bill of Rights of 1689, in a host of other authorities, English law that was known to the framers provided absolute immunity to British subjects when they petitioned either Parliament or the king.
The Respondents do not dispute that history.
They also do not dispute that in Harris v. Huntington, the first American case to consider the common law--
Unidentified Justice: Well, I dispute that as of today, you can write anything you please to any governmental official and have absolute immunity.
Bruce James Ennis Jr: --Well, Your Honor, if I wrote a letter to the government accusing--
Unidentified Justice: Is there anything that you could write to the government that you would not be responsible for?
Bruce James Ennis Jr: --I'm not claiming--
Unidentified Justice: The point is that you write to a government official, period.
Bruce James Ennis Jr: --Right.
Unidentified Justice: That's all you say.
If you write to a government official, you have absolute immunity, period.
That's the end of your constitutional provision.
Bruce James Ennis Jr: No.
That is a broader rule than we are contending for in this case.
Unidentified Justice: How much broader is it?
Bruce James Ennis Jr: Quite a bit broader.
We are only asking the Court to rule in the narrow circumstances of this case, and that involves three important qualifications.
The first is that the petition is from a citizen addressed to appropriate officials of the Federal Government, not just to anyone.
Unidentified Justice: I said anyone in government.
Bruce James Ennis Jr: --Yes, but we're not... if Mr.... if my client--
Unidentified Justice: I don't think you can be in government unofficially.
Bruce James Ennis Jr: --No, certainly not, Your Honor.
But if my client wrote a letter to some member of the Forestry Department in the State of Wisconsin... who's a government official... which was defamatory--
Unidentified Justice: Also, I wouldn't assume it would apply to somebody who wrote to the third assistant janitor in the Post Office.
Bruce James Ennis Jr: --That's correct, Your Honor.
That's an important qualification.
Unidentified Justice: Don't break anything... bring something that's... if you write to any governmental official--
Bruce James Ennis Jr: Yes.
Unidentified Justice: --Any officer of the United States, you have absolute immunity.
Is that correct?
Bruce James Ennis Jr: That's not the position for which we are--
Unidentified Justice: Are you limiting your position to decisionmaking officials?
Bruce James Ennis Jr: --Your Honor, we are limiting the rule we see to appropriate federal officials.
That could include certainly those officials who are directly involved in making the decision.
For example, as you might be, if you were hiring a law clerk.
But it might also include a few more officials who are not directly involved in making the decision, but whom the petitioner could reasonably believe would be influential in that decisionmaking process.
The citizen critic should not be forced to guess at his peril, whether the governmental recipients of his petition are the right recipients or not.
So long as his decision is not patently unreasonable, as perhaps writing to the third janitor might be, so long as decisions are not patently unreasonable, it should be protected.
Let me continue by saying that--
Unidentified Justice: Mr. Ennis, isn't there a basic difference in the justification for immunity and libel or defamation actions for witnesses in judicial proceedings, simply because they're subject to cross-examination to get at the truth?
Their statements occur in a framework where it's possible to know whether they're speaking the truth or not, at least by our standards.
And you're asking for absolute immunity in a situation where someone just submits a letter and is not open to cross-examination for it.
And it seems to me to have some basic differences.
And I think if you look closely at the common law immunity, you will find that it extended really only to judicial proceedings and witnesses and not as you have described.
Bruce James Ennis Jr: --Well, Your Honor, I must respectfully disagree about the common law history.
But on the other question you asked, that is obviously an important point; that witnesses in judicial proceedings are subject to cross-examination.
The rule, however, of immunity applies not only to witnesses but also to complainants in judicial proceedings.
The complaint itself is immune.
And there may or may not be occasion for testing the truth of allegations in a complaint.
The complaint may never get served, it may not--
Unidentified Justice: Well, they can have the opportunity for a formal response.
It's in a setting where it lends itself to a response.
Bruce James Ennis Jr: --Yes, that's right.
Unidentified Justice: And in the situation you described, the person about whom the letter is written may never know what was written at all.
Bruce James Ennis Jr: Yes.
Let me respond to that, Your Honor.
Unidentified Justice: There's no notice, there's no response.
Bruce James Ennis Jr: Let me respond to that, Your Honor, because that's very similar to one argument raised by the Respondent that this was a secret petition.
In fact, it was not, for four reasons.
First, a secret--
Unidentified Justice: But the rule you pose would cover something just submitted that the person about whom it's written would never know.
Bruce James Ennis Jr: --The rule I propose is no different than the rule this Court has already adopted in both Quarles and Vogel v. Gruz.
This Court has already ruled that the subject of a petition to the Federal Government cannot compel the disclosure of that petition to himself or to anyone else without the "permission or assent" of the Federal Government.
Because the Court recognized that the government has such an important need in receiving that information, that the Federal Government should be free to decide for itself whether to pass on a communication to the subject of the communication.
That's already the rule this Court has adopted.
Unidentified Justice: You mean in criminal cases.
Is that what you're talking about?
Bruce James Ennis Jr: --Well, Vogel applies not just in criminal cases, nor does... but the rule I'm talking about is a petition to Federal Government.
The fourth point I'd like to make on that secrecy argument is that the Respondent, I think disingenuously suggests in his answering brief, that he did not have an ample opportunity to respond.
In fact, he did.
The record in this case is clear, as the deposition of Congressman Johnston makes clear, that the Respondent promptly received copies of both letters from Congressman Johnston, his friend, and Senator Helms, his friend and sponsor, and that on January 19th and February 27th he in fact wrote to Congressman Johnston with enclosures, providing a detailed response to every one of petitioner's allegations.
So he did in fact have an ample opportunity to respond, and that's in the record of this case.
This was not a secret, however.
A secret requires an agreement by both parties to the communications to keep it confidential between themselves.
My client did not demand or request that the government keep his petition secret.
To the contrary, he offered to testify publicly, where he would have been subject to cross-examination and penalties for perjury; nor did he expect secrecy.
He is alleged to have sent copies of his letters to Senator Helms and Congressman Johnston, both of whom were friends and sponsors of the Respondent.
Unidentified Justice: Mr. Ennis, would your rule cover the anonymous correspondent as well as one who signs his name?
Bruce James Ennis Jr: Your Honor, I think that the Federal Government should be free to decide for itself whether it wants to receive and act upon anonymous petitions as well as--
Unidentified Justice: So your answer is yes, it would.
Bruce James Ennis Jr: --Yes, it would, but I don't think the Court needs to--
Unidentified Justice: Do you think the rule for which you contend would have any tendency to increase the amount of false communication?
Bruce James Ennis Jr: --No more, Your Honor, than the rule this Court adopted in Barr v. Matteo for governmental officials.
Unidentified Justice: That's not my question.
My question is, do you think the rule for which you contend would have any tendency to increase the amount of false communication?
Bruce James Ennis Jr: No, I do not think it would, Your Honor, because the petitioner would still be subject to penalties for providing false information to the government.
On the contrary, though, I think that a rule granting petitioner's immunity from common law libel actions would tend to encourage citizens to provide truthful and useful information to the government because they would no longer have to fear spending $20, $4O, $60, $80,000 in unrecoverable defense costs if their communication was simply alleged to be knowingly false.
Let me respond to one point that has not yet come up, but is... since the Respondent really says virtually nothing at all about our historical argument that was known to the framers and nothing at all about our functional analysis argument, Respondent talks only about the petitions being secret and misdirected.
The argument about misdirected is that petitioner's first letter was misdirected because he sent it to Congressman-Elect Johnston and to President-Elect Reagan before they had been sworn in.
But as the record makes clear, in November of '80 the Respondent had applied for the position to Congressman-Elect Johnson and to Senator Helms requesting their assistance in obtaining the appointment.
If it was appropriate for the Respondent to seek the assistance of Congressman-Elect Johnston in obtaining the appointment, it was no less appropriate for the petitioner to write to the same Congressman-Elect Johnson to oppose the appointment.
It was widely reported in the press that there was a transition team in place, chaired by Ed Meese, that was then actively considering nominations.
In fact, the Respondent alleges that he was an active candidate, and that the President would be making appointments as soon after he was sworn in as possible.
There is no more appropriate occasion for a citizen to communicate with the Federal Government concerning a candidate for Federal office than when the decisionmaking process is actively underway.
Let me conclude... and then I'd like to reserve a few minutes for rebuttal... by simply reminding the Court, as I'm sure it's aware, that the deterrent effect we are talking about here is an extraordinarily severe deterrent effect.
In fact, the Respondent concedes at page 18 of his brief that the potential cost of defending a libel action is great, to use the Respondent's words.
And the relative cost for an ordinary citizen who does not have libel defense insurance is even greater than the cost for a media defendant, such as the New York Times.
Let me pose a hypothetical.
If North Carolina tomorrow enacted a statute imposing a $20,000 tax on all petitions to the Federal Government, can anyone doubt that that would silence all petitions to the Federal Government by everyone but the most wealthy or foolhardy citizen?
But the $20,000 tax, though it's not paid to the State of North Carolina, is the same in this case under the common law rule.
The petitioner must pay that $20,000 to his defense lawyers and to court reporters, not to the State of North Carolina directly, but the cost to him is the same and the deterrent effect on him is the same.
If this Court does not grant absolute immunity, I think it is clear that the message that will go out to the citizens of this country is that they are no longer free to criticize candidates or to criticize wrongdoing by public officials, and that if they do so, they do so at enormous economic cost to themselves.
Unidentified Justice: Of course, the message would always say you certainly are protected, even if you give some false information if you didn't know it was false.
But the message might say if you deliberately sent in false information, you'd better watch your Ps and Qs.
There would always be qualified immunity, wouldn't there?
Bruce James Ennis Jr: It's going to cost my client the same amount of money to prove that his allegations were true, and it doesn't matter that they're simply alleged to be false; he has to incur the same costs.
I believe I have--
Unidentified Justice: Mr. Ennis, what do you think the message was to someone who read White v. Nicholls?
Bruce James Ennis Jr: --Your Honor, I think that White v. Nicholls was, as this Court recognized in Briscoe v. La Hue, an incorrect summary of the common law.
White v. Nicholls totally ignores the pre-revolutionary cases.
It ignores Harris v. Huntington which was cited here.
Unidentified Justice: Do you know of another American case before White v. Nicholls that adopted the Harris Huntington approach?
Can you cite one?
Bruce James Ennis Jr: Your Honor, I don't know because we really stopped our research at the time of the framers--
Unidentified Justice: Well, I haven't been able to find one, so I would be interested if you had one.
I didn't think there were any.
Bruce James Ennis Jr: --I don't know, and if there were, I don't think it would be relevant because we're inclined to see the case law that would have been familiar to the framers of the petition clause.
And cases decided contemporaneously with White v. Nicholls may have been familiar to this Court from White v. Nicholls, but could not possibly have been within the contemplation of the framers.
I meant to reserve a couple of minutes, but I guess my time has expired.
Thank you very much.
Chief Justice Warren E. Burger: Mr. Eagles.
ORAL ARGUMENT OF WILLIAM A. EAGLES, ESQ. ON BEHALF OF THE RESPONDENT
William A. Eagles: Mr. Chief Justice and may it please the Court, over 20 years ago this Court decided New York Times v. Sullivan.
In that case the Court set out the protection the Constitution makes available to citizens who criticize public officials.
The citizens in question in New York Times were not petitioning the government.
They were, however, petitioning the holders of the absolute sovereignty in this country; they were petitioning their fellow citizens.
New York Times, addressing the free speech and press clauses, recognized that actual malice must be shown to be the basis of any recovery from a libel action for criticizing a federal official or government official.
Now Mr. McDonald comes before this Court and seeks absolute immunity for letters alleged to have contained knowing, malicious defamatory falsehoods.
New York Times standard would not protect such intentional lies.
Yet, Mr. McDonald really offers only arguments that were addressed, weighed, balanced, and decided in New York Times.
Unidentified Justice: Has anyone ever succeeded in getting a recovery from The New York Times since Sullivan that you're aware of?
If you don't know, it's--
William A. Eagles: I don't know offhand, Your Honor.
We are here denying that malicious lies are afforded a protection under the petition clause; that the same malicious lies would be denied by the free speech and press clauses.
Yesterday, this Court affirmed the position that's inescapable under the unified analysis of the speech and petition clauses received by this Court already, stating that while the petition and speech clauses are separate they are related and generally subject to the same analysis.
Application of that same analysis is all that we ask, that malicious lies whispered in the ear of a government official receive no greater protection than malicious lies printed in The New York Times.
Counsel for the petitioner has indicated that he does not seek protection from every possible sanction that might result from information contained in the petition.
They do, however, seek protection, absolute immunity from the only sanction available to Mr. Smith.
Mr. Smith is not afforded his day in court that would result from a petition to the judicial branch.
The only opportunity that David Smith will ever have to prove the truth or falsity of allegations made against him is in a libel action.
He's properly alleged the falsity, he's prepared to proceed under the standard providing, we would say, ample and we believe the Court has already said ample protection of The New York Times standard.
The opportunity to respond that counsel for petitioner discussed existed to some extent under the facts of the case before the Court.
It did not, however, exist in a forum that resolution of the conflicting positions and facts presented would ever be reached.
Presumably, had Mr. Smith in fact been appointed, that resolution would have occurred in the minds of the public.
But in the absence of his appointment, for whatever reason, the malicious lies are left and he... and Mr. Smith has no opportunity to address them.
The petitioner's argument, it seems to us, asks this Court to address the question of the petition clause as if there had been no development of constitutional libel law since the drafting of the first amendment.
He appears to present a blank slate, or a blank slate for the last 200 years, to the Court.
But we would submit that this case not only deals with the petition clause, but also the balancing between the effect of immunities granted under the petition clause and the protections granted under the speech clause, because it is as citizens see those protections that they will decide where discussion of matters of public interest will take place.
The First Amendment fundamentally supports the proposition of public, vigorous, wide-open debate of issues important to the public.
This Court has said that many times, and as recently as Monday of this week.
It is our position that providing one who would use malicious lies for political gain with an absolute immunity would not only encourage the false information flowing to the Federal Government, but would encourage the discussion of it to be moved out of any guarantee of rebuttal by those not only who were defamed by it, but by those who disagree with it.
The discussion of the matters of public interest would be moved into the secrets of private letters and whispered petitions to government officials, carefully chosen so that they are the person most... best in a position to do the most harm to the man who's being defamed.
That approach to the questions presented by the petitioner's argument, we believe necessarily draws one back to the protections provided by New York Times and the fundamental precepts of the Constitution supporting and encouraging open... wide-open, robust debate of public issues.
We would submit, further, that while the petitioner discusses in his brief at some length the chilling effect of a potential large libel verdict, that since New York Times there has not been a single libel verdict for more than a half million dollars or as much as a half million dollars affirmed by an appellate court.
Unidentified Justice: --But don't you think a half million dollars would be quite chilling?
In North Carolina?
William A. Eagles: In Alamass County, North Carolina it would indeed, sir.
I point that out, Your Honor... he talks about the unreasonable inflation of libel verdicts, and that inflation... before New York Time, John Henry Faulk was awarded over half a million dollars, and there hasn't been an award that large since.
So the inflation aspect of it simply doesn't appear from the record of those verdicts which have been affirmed by appellate courts.
He discusses the cost of litigation.
The cost of litigation is great.
And it in fact is something that I guess we all should consider every time we get in an automobile or have an invitee come on our premises.
If we live in the world, we risk the cost of litigation.
And if we tell malicious lies defaming people, we ought to risk that cost and we ought to risk the threat of large libel verdicts, and we ought to be chilled from malicious lies disrupting the decisionmaking process of the Federal Government.
And in New York Times, the chilling prospect was considered, it was weighed, and it was determined that under the speech clause and the press clause, that question was adequately addressed by the malicious falsehood standard: knowingly false, reckless disregard of the truth or falsity thereof.
People should be chilled when they're about to tell lies about people that will, on their face, do those people harm and they are intended to do harm by the focus to the recipient that the speaker chooses.
Unidentified Justice: Do you agree that there should be immunity for a good faith statement not made maliciously?
William A. Eagles: That's the common law position in North Carolina.
It's the position in Ponder v. Cobb which was cited in New York Times, and which the North Carolina general libel law was one of the places looked to by this Court.
Unidentified Justice: And the standard which this action would go to trial would be the equivalent of the standard required under New York Times v. Sullivan as you understand it?
William A. Eagles: As I understand it, Your Honor, that's correct.
The potential for a public figure question rests in the trial court, I suppose, because we have, for the purposes of the motion from which this appeal was taken, that question was yielded.
It has not been yielded for the litigation generally, but except for that question that's exactly the standard.
It's a standard that would be required under... by New York Times, and it's a standard that existed in North Carolina for just this type of... in Ponder v. Cobb, there was a letter to a state official complaining of local election officials.
So it's the same petitioning aspect.
Unidentified Justice: Well, do you tend to agree that anything short of that standard certainly would provide a significant chilling effect on people who otherwise might furnish information to public officials?
William A. Eagles: Well, I believe so, Your Honor.
If people who acted in good faith and on reasonable grounds, the older cases discuss bona fide and probable cause, use that kind of language, then a common law privilege did exist and should, and chilling would take place in the absence of it.
Another point in terms of the cost of litigation that is made by the petitioner in his brief is the comparison between the availability of counsel and the cost of counsel between libel plaintiffs and defendants, pointing out that a contingent fee arrangement is often available to libel plaintiffs.
I would disagree.
I would think it is seldom available to libel plaintiffs.
I would point out to the Court that the use of contingent fee arrangements is one of the strongest deterrents to litigation with no substantial basis because in that situation, a lawyer who is making a decision on the merits of potential cases as presented to him or to her and deciding... before the case is ever filed, there is a tremendous weeding out process that takes place.
And that is a protection against frivolous litigation that is substantial and grows out of the same sorts of concerns about costs of litigation that the counsel for petitioner raises.
Unidentified Justice: Do you think it's desirable that appointed officials for public positions be made aware of even reasonable rumors that are floating around about people that they might be considering for appointment?
Is that desirable?
William A. Eagles: I think it's desirable for government officials who are acting on the basis of some information to the benefit or detriment of a particular individual, to make that individual aware of it and have an opportunity to respond to it in other areas.
Unidentified Justice: Well, that's not the question I asked... what do they do with it.
William A. Eagles: I'm sorry.
Unidentified Justice: I'm asking initially if you think that as a matter of public policy, it's desirable that as much information as possible be funneled into appointing authorities, even if it consists only of rumors.
William A. Eagles: Yes, Your Honor, I think it is in fact a valuable... can potentially be a valuable service for someone to make government officials aware of information of which they cannot themselves be certain.
Mr. McDonald, however, did not couch his defamation in those sorts of terms.
Rather, he presented them as true and he, as the briefs point out and it's clear from the letters, cites page and verse, name, address, telephone numbers of people that the federal official was told could substantiate these things.
And those people are the very witnesses that we intend to call at trial, are the people through whom we intend to prove the falsity and the maliciousness.
But the fact of presenting those names and addresses wins this air that's repeated by citation to those in petitioner's brief of credibility that is very difficult to overcome in a process like this one, where any number of candidates for an office exist, any number of whom have good appropriate qualifications, and as to one of whom this mess is presented, this series of allegations, this possible problem.
And the effect of that is potentially devastating to a candidate who would be considered equally among others, and could do away with any possibility or any perceived need for checking the reliability and the truth or falsity by the federal official who had available to him other qualified reasonable candidates to choose among.
The potential of the FBI doing an investigation that counsel for petitioner discussed clearly existed, except that there is no way to know if the FBI chose to or not, and even if it had, the allegations of that process would not necessarily result in Mr. Smith having an opportunity to present his side of the story.
In fact, that argument, it seems to me, raises the government's investigatory process to a... it puts it on a higher plane than the truth-seeking processes of the courts in which Mr. Smith seeks to have this question determined, to have the fact of the falsity of the information and the malicious nature of its presentation proven.
Unidentified Justice: Mr. Eagles, Mr. Smith was not appointed, was he?
William A. Eagles: That's correct, Your Honor.
He was not appointed.
Unidentified Justice: What is he doing now?
William A. Eagles: He's in private practice of law in Burlington, North Carolina in the community where some copies of these letters were found among the general population and in the community where word of the existence of them reached him from rumor in the streets before opportunity had been... before he had ever seen a copy of it and the other ways he heard about it.
Unidentified Justice: Is that in the record?
William A. Eagles: Well--
Unidentified Justice: Well, is it?
Is it or not?
William A. Eagles: --The only part of that that's in the record, Your Honor, is in depositions that I guess have not yet been filed.
The depositions have been taken and--
Unidentified Justice: What... does the complaint allege any specific damage?
William A. Eagles: --The complaint alleges that he was damaged in his professional reputation in the community, as well as his reputation--
Unidentified Justice: So that alleges that there has been damage in the community.
William A. Eagles: --That's correct.
Unidentified Justice: Which I take it alleges that the people in the community know about it.
William A. Eagles: Oh, yes.
They knew about it before any action was brought on Mr. Smith's behalf.
And that raises another question.
And one of the... the Webb case to which counsel for petitioner made some comment... in that case, the court of West Virginia determined that the petition clause provided an absolute immunity and made that available to the defendant, even though he published a newsletter with the same information and spread it generally in the community.
And that is... that would enable someone under that decision to avoid any possible defamation action or discussion of public issues and criticism of public figures, public officials, by simply including whatever he put in the paper or to the public generally, including it also in a petition to the government.
And that would be, we believe, a remarkable way around the longstanding libel laws of all the states and the decision of New York Times and this Court's view of what New York Times stands for.
We believe that an individual's right to protection of his own good name reflects no more than the basic concept of the essential dignity and worth of every human being, and that that concept is at the root of any decent system of ordered liberty.
This Court has so said in Gertz, and we believe that if the interest, if that interest is important, it is no less important because it was left to the protection of the state and that it's necessary to make those people who choose to lie maliciously about people and defame them, to be held to answer for their words.
And if there are no further questions from the Court, we would urge on that basis for the Court to affirm.
Thank you very much.
Chief Justice Warren E. Burger: You have three minutes remaining, Mr. Ennis.
ORAL ARGUMENT OF BRUCE JAMES ENNIS, JR. ESQ. ON BEHALF OF THE PETITIONER -- REBUTTAL
Bruce James Ennis Jr: Thank you, Mr. Chief Justice.
The respondent raised the point about public debate.
First, there is no allegation in the complaint that my client, the petitioner, distributed copies of this letter to any member of the public, only to federal officials.
There was a very good reason why he did not distribute his letter to the public and give an opportunity for public debate.
He was seeking to exercise his right to petition the Federal Government concerning a decision that was about to be made by the Federal Government, and there was no arguable basis to believe that the public would be able to redress that particular grievance.
Second, by limiting his petition to officials of the Federal Government, he obviously limited any damage to the reputational interest that the candidate might have in his local home community.
And while I'm on that point, let me simply state that this Court's decisions in Gertz and Monitor and Hutchinson make clear that although reputation is an important interest, the reputational interest of a candidate for office is greatly diminished because candidates invite scrutiny of their qualifications and reputation.
Second, Justice O'Connor asked whether or not a rule of good faith or qualified immunity would be important and might not be sufficient.
Let me simply refer to the position taken by the United States in Webg v. Fury which is quoted at page 40 of our brief, in which the United States said:
"To allow a plaintiff to simply plead bad faith would create a chilling effect on the exercise of the right to petition. "
The United States continued that the right to petition would
"lose any real meaning because private citizens will be deterred by the threat of litigation from exercising that right which would deprive the Federal Government of the information it needs to govern. "
Let me conclude by simply stating once again that we are not seeking absolute immunity from every possible sanction for every communication that could conceivably be deemed a petition.
We only seek immunity from common law libel actions and only in the three circumstances of this case.
First, the petition was from a citizen to appropriate officials of the Federal Government; second, the petition was relevant to the qualifications of a candidate actively seeking appointment to federal office; and third, the petition was made on an appropriate occasion while the federal decision concerning appointment was still pending.
Thank you very much.
Chief Justice Warren E. Burger: Thank you, gentlemen.
The case is submitted.