IN THE SUPREME COURT OF THE COMMONWEALTH OF VIRGINIA SHARON D. YEAGLE THE COLLEGIATE TIMES AMICI CURIAE BRIEF

Transcription

1 IN THE SUPREME COURT OF THE COMMONWEALTH OF VIRGINIA SHARON D. YEAGLE v. Appellant, THE COLLEGIATE TIMES Appellee. AMICI CURIAE BRIEF The Thomas Jefferson Center for the Protection of Free Expression The Reporters Committee for Freedom of the Press The Student Press Law Center J. Joshua Wheeler Robert M. O'Neil Counsel for Amici Curiae 400 Peter Jefferson Place Charlottesville, Virginia

2 TABLE OF CONTENTS TABLE OF CITATIONS...iii INTEREST OF AMICI CURIAE... 1 QUESTION PRESENTED...2 STATEMENT OF THE CASE...3 STATEMENT OF FACTS...3 SUMMARY OF ARGUMENT...3 ARGUMENT I. STATEMENTS THAT CANNOT BE INTERPRETED AS CONTAINING FACTUAL ALLEGATIONS ABOUT AN INDIVIDUAL ARE NOT ACTIONABLE IN A SUIT FOR DEFAMATION... 5 A. The natural meaning of the phrase Director of Butt Licking support the trial court's finding that the phrase is devoid of actual facts...7 II. ALLOWING A CAUSE OF ACTION FOR THE LANGUAGE AT ISSUE WILL UNDULY SUPPRESS THE FREE FLOW OF INFORMATION AND IS THEREFORE CONTRARY TO THE FIRST AMENDMENT...11 i

3 TABLE OF CONTENTS (continued) III. THE VIRGINIA CONSTITUTION PROVIDES AN INDEPENDENT BASIS FOR PROTECTION OF EXPRESSION A. This Court has previously recognized that the contours of Article I. Section 12 of the Virginia Constitution may be broader than those of the First Amendment...14 B. Even though the U.S. Supreme Court in Milkovich declined to create a separate category of constitutional protection for statements of opinion, this Court has consistently recognized an immunity for pure expressions of opinion CONCLUSION...20 REQUIRED CERTIFICATE...21 ii

4 TABLE OF CITATIONS CASES Page(s) Carwile v. Richmond Newspapers. Inc., 196 Va. 1, 7, 8 82 S.E. 2d 588 (1954) Chaves v. Johnson, 230 Va. 112, , 19 S.E. 2d 97 (1985) Cohen v. California, 403 U.S. 15 (1971) 14 Crawford v. United Steelworkers, 230 Va. 217, S.E. 2d 828 (1985) Curtis Publishing Co. v. Birdsong, 360 F.2d (5th Cir. 1966) DeMoya v. Walsh, 441 So.2d 1120 (Fla. Ct. 10 Appt. 3rd Dist. 1983) Evarts v. Downey, 16 Med. L. Rptr. (BNA) (N.Y. Sup. Ct. 1989) FCC v. Pacifica Foundation, 438 U.S. 726 (1978) Fleming v. Moore, 221 Va. 884, 275 S.E. 2d (1981) Gazette. Inc. v. Harris, 229 Va. 1, 325 S.E. 2d (1985) Gertz v. Robert Welch. Inc., 418 U.S. 323 (1974) 18 Greenbelt Cooperative Publishing Assn. v. Bresler, 5, U.S. 6 (1970) iii

5 TABLE OF CITATIONS (continued) CASES Page(s) Healy v. James, 408 U.S. 169 (1972) 13 Hustler Magazine and Larry Flynt v. Jerry Falwell, 6, 11, U.S. 46 (1988) Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) 5-7, Mover v. Amador Valley Joint Union High School 9-10 District, 275 Cal. Rep. 494 (Cal. Ct. App. 1990) NAACP v. Claiborne Hardware Co., 458 U.S (1982) Richmond Newspapers v. COM, 222 Va. 574, S.E. 2d 915 (1981) Robert v. City of Norfolk, 188 Va. 413, S.E. 2d 697 (1948) Rosenberger. et.al. v. Rector and Visitors of the 13 University of Virginia, et.al., 515 U.S. 819, 115 S. Ct (1995) Weinberg v. Pollock, 19 Med. L. Rptr (Conn. Super Ct. 1991) Williams v. Garraghty, 249 Va , 7, 19 S.E. 2d 209 (1995) In Re Worrell Enterprises, 14 Va. App. 671, S.E. 2d 271 (1992) iv

6 TABLE OF CITATIONS (continued) CONSTITUTIONAL AND STATUTORY AUTHORITY Page(s) First Amendment of the United States Constitution passim Article I, Section 12 of the Virginia Constitution Va. Code (A) 8 OTHER AUTHORITIES Page(s) Report of the Commission on Constitutional 17 Revision (1969) v

7 INTEREST OF AMICI CURIAE The Thomas Jefferson Center for the Protection of Free Expression, located in Charlottesville, Virginia, is a nonprofit, nonpartisan organization devoted solely to the protection of free speech and free press. The Center has, since its founding in 1990, pursued that mission in various forms, including the filing of amicus curiae briefs, in both federal and state courts, in cases involving a variety of free expression issues. The Reporters Committee for Freedom of the Press is a voluntary, unincorporated association of news reporters and editors dedicated to protecting the First Amendment interests of the news media. The Reporters Committee has appeared in virtually every recent U.S. Supreme Court case involving the First Amendment rights of reporters to gather and disseminate news and information. It has provided representation, information, legal guidance or research in virtually every major press freedoms case litigated since The Student Press Law Center is a national, not-for-profit, incorporated, legal research, information and advocacy organization 1

8 formed for the purpose of educating high school and college journalists about the importance of the First Amendment and defending their free speech rights. As the only national organization devoted exclusively to defending the legal rights of the student press, the Center has collected information on student press cases nationwide and has submitted amicus curiae briefs before the Supreme Court of the United States and various state and federal appellate courts. The SPLC produces various publications, including its magazine, the SPLC Report: its book Law of the Student Press: and Covering Campus Crime: A Handbook for Journalists. QUESTION PRESENTED Whether the trial court properly found, as a mater of law, that the phrase Director of Butt Licking was devoid of factual content and, therefore, not capable of sustaining a defamatory meaning. 2

9 STATEMENT OF THE CASE Amici curiae adopt the Statement of the Case set forth in the brief of appellee, The Collegiate Times. STATEMENT OF FACTS Amici curiae adopt the Statement of Facts set forth in the brief of appellee, The Collegiate Times. SUMMARY OF ARGUMENT A claim of defamation, as with any government enforced restriction of speech, can survive judicial scrutiny only if it meets the dictates of the First Amendment. To ensure that such claims do not unduly impinge upon freedom of expression, defamation claims are allowed to go forward only after a court finds that those who heard or read the statement alleged to be defamatory could understand the words in question to convey factual information. If a statement does not convey factual information but is a pure expression of opinion, it falls within the realm of speech protected by the First Amendment. 3

10 The figurative nature of the phrase at issue in this case, Director of Butt Licking, renders it devoid of any literal or factual meaning. As such, no reasonable person could infer that the phrase conveyed an allegation of fact. To allow a jury to hear a claim of defamation based on the phrase Director of Butt Licking would encourage lawsuits from those who have suffered nothing more than an insult by negative, yet vague terms. Moreover, it would be contrary to United States Supreme Court precedent that provides First Amendment protection to rhetorical hyperbole, imaginative expression, and offensive utterances. Even if the First Amendment did not protect statements such as the one at issue in this case, an independent basis for protection is found in the Constitution of Virginia. This Court has found that Article 1, Section 12 of the Constitution of Virginia provides absolute immunity for pure expressions of opinion and, therefore, a statement of pure opinion such as Director of Butt Licking cannot serve as the basis of a defamation claim. 4

11 ARGUMENT I. STATEMENTS THAT CANNOT BE INTERPRETED AS CONTAINING FACTUAL ALLEGATIONS ABOUT AN INDIVIDUAL ARE NOT ACTIONABLE IN A SUIT FOR DEFAMATION. Defamation exists only when statements are made which, if false, cause harm to a person's reputation. Because the threat or actual imposition of pecuniary liability may impair the unfettered exercise of... First Amendment freedoms, the Constitution imposes stringent limitations upon the permissible scope of such liability. Greenbelt Cooperative Publishing Assn. v. Bresler. 398 U.S. 6, 12 (1970). Many types of statements may be offensive, or disturbing to the person about whom they are made. If, however, those statements do not include false factual allegations, they simply do not constitute defamation. Thus, as the United States Supreme Court made clear in Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990), a threshold issue in any defamation case is whether those who read or hear the statements alleged to be defamatory would understand the words in question to convey factual information. In Virginia, it is for a court, not a jury, to make a 5

12 determination of this threshold issue. Williams v. Garraghty, 249 Va. 224, 233, 455 S.E. 2d 209, 215 (1995). In Milkovich, the Court held that statements which cannot reasonably be interpreted as stating actual facts about an individual are protected by the First Amendment. 497 U.S. at 20 (citing Hustler Magazine and Larry Flynt v. Jerry Falwell, 485 U.S. 46, 50 (1988)). This principle provides the assurance that public debate will not suffer for the lack of 'imaginative expression' or the rhetorical hyperbole which has traditionally added much to the discourse of our Nation. Id. at 20 (citing Hustler. 485 U.S. at 53-55). In reaching this conclusion, the Court rejected the argument that any statement labeled as an opinion must be immune from defamation claims by virtue of the First Amendment. Milkovich at 19. The Court s concern was that such a holding would allow individuals to escape liability by simply prefacing a defamatory comment with the statement, In my opinion.... See id. at Further, such a holding was not necessary because the breathing space which freedoms of expression require in order to survive is adequately secured by existing 6

13 constitutional doctrine. Id., at 19 (citations omitted). Thus, for defamation purposes, the Court has made a distinction between statements of opinion that imply a false statement of fact, and statements that are pure expressions of one person's attitude about another. This interpretation appears to have been adopted by the Virginia Supreme Court as evidenced by its opinion in the post- Milkovich case of Williams v. Garraghty: It is firmly established that pure expressions of opinion are protected by both the First Amendment to the Federal Constitution and Article I, Section 12 of the Constitution of Virginia and, therefore, cannot form the basis of a defamation action.... It is for a court, not a jury, to determine, as a matter of law, whether an alleged defamatory statement is one of fact or of opinion. 249 Va. 224, 233, 455 S.E. 2d 209, 215 (1995) (emphasis added). A. The ordinary meaning of the phrase Director of Butt Licking supports the trial court s finding that the phrase is devoid of actual facts. In determining whether a statement contains actual facts, a court should consider the plain, natural and ordinary meaning of the words and interpret them as other people would understand them. Carwile v. Richmond Newspapers. Inc., 196 Va. 1, 7, 82 S.E. 2d 588,

14 (1954). In an attempt to show that Director of Butt Licking conveys false information about actual facts, Ms. Yeagle argues on several grounds that such an appellation is defamatory per se under Virginia law. One theory put forth by Ms. Yeagle is that the phrase may cause some individuals who read it to believe that she is guilty of a criminal offense involving moral turpitude, specifically that she violated Va. Code (A), which prohibits crimes against nature. This Court has, however, addressed arguments similar to Ms. Yeagle s before and found them to be without merit. For example, this Court has held that the words cocksucker and motherfucker when used to describe another individual cannot be reasonably understood to convey any verifiable facts and therefore cannot support a defamation claim. In Crawford v. United Steelworkers. 230 Va. 217, 234, 335 S.E. 2d 828, 839 (1985), the Court found that such words did not sufficiently accuse the people at which they were directed of committing the crimes of sodomy or incest. See also. Greenbelt Cooperative Publishing Assn. v. Bresler. 398 U.S. 6, 14 (1970) (finding that the word blackmail to describe a real estate 8

15 developer s tactics during a city council zoning hearing could not have been understood as charging the developer with a crime); Curtis Publishing Co. v. Birdsong, 360 F.2d 344, 348 (5th Cir. 1966) (finding that the use of the word bastard to describe a police officer did not accuse the plaintiff with having been born out of wedlock). Like cocksucker and motherfucker, the phrase Director of Butt Licking is a figurative expression that does not impute any actual actions to Ms. Yeagle, much less the commission of a crime against nature. Nor is the phrase defamatory per se because it suggests a want of dignity in the discharge of Ms. Yeagle s duties or has prejudiced her in her profession. To maintain an action under this theory, the words must contain an imputation that is necessarily hurtful in its effect upon plaintiff s business and must affect him in his particular trade or occupation. Fleming v. Moore. 221 Va. 884, , 275 S.E. 2d 632, 636 (1981) (holding that an advertisement labeling plaintiff as a racist might adversely affect his work but was not necessarily hurtful to his ability to perform his job as a university professor and therefore could not sustain a defamation claim). (See also Mover v. Amador 9

16 Valley Joint Union High School District. 275 Cal. Rep. 494, 498 (Cal. Ct. App. 1990) (description of teacher as babbler not actionable); Evarts v. Downey. 16 Med. L. Rptr. (BNA) 2449 (N.Y. Sup. Ct. 1989) (expressions such as fat bitch and hairy armpit not actionable); DeMoya v. Walsh. 441 So.2d 1120, 1121 (Fla. Ct. Appt. 3rd Dist. 1983) ( raving maniac not actionable); Weinberg v. Pollock. 19 Med. L. Rptr (Conn. Super Ct. 1991) (calling man a bastard does not give rise to a cause of action by his mother). As with the foregoing cases, the figurative nature of the phrase Director of Butt Licking renders it devoid of any literal or factual meaning. As such, it is not necessarily hurtful to Ms. Yeagle in her ability to perform her job. The phrase is nothing more than crude hyperbole that cannot form the foundation for a claim of defamation. 10

17 II. ALLOWING A CAUSE OF ACTION FOR THE LANGUAGE AT ISSUE WOULD UNDULY SUPPRESS THE FREE FLOW OF INFORMATION AND WOULD THEREFORE BE CONTRARY TO THE FIRST AMENDMENT. The phrase at issue in this case, Director of Butt Licking referring to the plaintiff, may be distasteful and embarrassing to Ms. Yeagle. However, as the Court observed in NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910 (1982): Speech does not lose its protected character... simply because it may embarrass or coerce them into action. The language at issue in this case falls squarely within the realm of speech protected by the First Amendment. As the Supreme Court stated in Hustler, 485 U.S. at 49: At the heart of the First Amendment is the recognition of the fundamental importance to the free flow of ideas and opinions.... We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed actions. Similarly, in FCC v. Pacifica Foundation. 438 U.S. 726, (1978), the Court stated [t]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if 11

18 it is the speaker s opinion that gives offense, that consequence is a reason for according it constitutional protection. The figurative nature of the language in this case is analogous to the ideas communicated by satirical cartoons, whose content is clearly protected by the First Amendment. The Hustler Court described the long history of such cartoons in American history, citing, for example, a cartoon portraying George Washington as an ass. Hustler at 52. Just as no reasonable reader would believe that the author of that cartoon had actually asserted that George Washington was, in fact, an ass, no reasonable reader would infer that the plaintiff in this case was, in fact, Director of Butt Licking. Moreover, though acknowledging the caustic nature of these cartoons, the Hustler Court also recognized their value in contributing to public and political debate. Id. Aside from being contrary to precedent, allowing a cause of action for the words at issue in this case could have a severe chilling effect on speech that is critical of others. A ruling that recognized a cause of action in this case would deter those with legitimate complaints from voicing their opinions. Such deterrence is no less abhorrent because the 12

19 speech takes place on the college campus. As the U.S. Supreme Court has said, its precedents leave no room for the view that First Amendment protection should apply with less force on college campuses than in the community at large. Quite to the contrary, the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. Healy v. James, 408 U.S. 169, 180 (1972); see also Rosenberger. et.al. v. Rector and Visitors of the University of Virginia, et.al., 515 U.S. 819, _; 115 S. Ct. 2510, 2520 (1995) ( danger... to speech from the chilling of individual thought and expression... is especially real in the University setting, where the state acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition ). Moreover, if calling someone Director of Butt Licking were actionable, then referring to someone as a jerk -- also negative yet having indefinite meaning -- would presumably also be actionable. If Director of Butt Licking is defamatory, one wonders about a writer s expressed opinion that a university administrator is obsequious, or incompetent, or long-winded, or boring. These are subjective 13

20 claims -- they are not factual assertions and certainly could not be proved false. Allowing this complaint to go forward would encourage lawsuits from those who have suffered nothing more than an insult by negative, yet vague terms. Such terms may seem to many people inarticulate in their ambiguous meaning, puerile, and distasteful, but they are nevertheless protected by the First Amendment. As the Supreme Court observed in Cohen v. California. 403 U.S. 15, 24 (1971): [V]erbal tumult, discord, and even offensive utterance... are, however,... necessary side effects of the broader enduring values which the process of open debate permits us to achieve.... We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful use of privilege, these fundamental societal values are truly implicated.... [O]ne man's vulgarity is another's lyric. III. THE VIRGINIA CONSTITUTION PROVIDES AN INDEPENDENT BASIS FOR PROTECTION OF EXPRESSION. A. This Court has previously recognized that the contours of Article I. Section 12 of the Virginia Constitution may be broader than those of the First Amendment. 14

21 Article I, Section 12 of the Virginia Constitution states: That the freedoms of speech and of the press are among the great bulwarks of liberty, and can never be restrained except by despotic governments; that any citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right.... Although this provision is often viewed as virtually coextensive with the First Amendment to the U.S. Constitution, this Court nevertheless has the discretion to imbue Section 12 with a greater degree of protection as a matter of state law. In Robert v. City of Norfolk. 188 Va. 413, 49 S.E. 2d 697 (1948), this Court reversed the conviction of a person who sold magazines without obtaining a city vending permit. Noting that applications for such permits had been denied, the Court held that the ordinance was an unconstitutional prohibition on solicitation in city streets. In reaching its decision, the Court stated that "The Constitution of Virginia is broader than that of the U.S. in providing that any citizen may freely speak, write and publish his sentiments on all subjects. 188 Va. at 420, 49 S.E. 2d at 700. More recently, in Gazette. Inc. v. Harris. 229 Va. 1, 20, 325 S.E. 2d 713, 725 (1985), the Court analyzed Section 12 independent of the 15

22 First Amendment in order to determine, as a matter of state law, the proper standard of fault to govern the awarding of compensatory damages in defamation actions. The Virginia Court of Appeals has also implicitly recognized the potential for a separate jurisprudence attaching to Section 12 in spite of the similarity of the provision to the First Amendment. In a case concerning the right of the press to gain access to court documents, the court felt it necessary to explain in a footnote that [fjor purposes of this opinion only, we make no distinction between the United States Constitution and the Virginia Constitution in our analysis of the issue presented here. In Re Worrell Enterprises. 14 Va. App. 671, 676 n.7, 419 S.E. 2d 271, 274 n.7 (1992) (emphasis added). Regardless of the relationship between the First Amendment and Section 12, this Court has held that Section 12 alone is sufficient to protect the important liberty interests of citizens of the Commonwealth. In Richmond Newspapers v. COM. 222 Va. 574, 587, 281 S.E. 2d 915, 922 (1981) the Court explained that [w]e rest our decision on Article I, Section 12, for as the Commission on Constitutional Revision stated: 16

23 [t]hat most of the provisions of the Virginia Bill of Rights have their parallel in the Federal Bill of Rights is... no good reason not to look first to Virginia's Constitution for the safeguards of the fundamental rights of Virginians. The Commission believes that the Virginia Bill of Rights should be a living and operating instrument of government and should, by stating the basic safeguards of the people's liberties, minimize the occasion for Virginians to resort to the Federal Constitution and the federal courts. Report of the Commission on Constitutional Revision, p. 86 (1969). Other courts have decided that issue [public access to pretrial suppression hearings] by resort to their states constitutions. It is thus evident that a court may look to the Virginia Constitution when considering the degree of protection to be afforded to The Collegiate Times statement of opinion regarding Ms. Yeagle. B. Even though the U.S. Supreme Court in Milkovich declined to create a separate category of constitutional protection for statements of opinion, this Court has consistently recognized an immunity for pure expressions of opinion. As previously noted, the Supreme Court in Milkovich v. Lorain Journal Co. rejected the assertion that an additional separate constitutional privilege for statements labeled as opinion was required to ensure the freedom of expression guaranteed by the First Amendment. 17

24 497 U.S. 1, 21. In making this pronouncement, the Court was clarifying its earlier opinion in Gertz v. Robert Welch. Inc U.S. 323, 339 (1974) which stressed the difference between statements of opinion and false statements of fact by noting that [u]nder the First Amendment there is no such thing as a false idea. However pernicious an opinion may be, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. The Virginia Supreme Court, like many courts across the country, cited Gertz in establishing a doctrine of absolute immunity for opinion, as it did in Chaves v. Johnson. 230 Va. 112, 119, 335 S.E. 2d 97, (1985). The Court stated: Pure expressions of opinion... cannot form the basis of an action for defamation. The First Amendment to the Federal Constitution and article 1, section 12 of the Constitution of Virginia protect the right of the people to teach, preach, write, or speak any such opinion, however ill-founded, without inhibition by actions for libel and slander. "[E]rror of opinion may be tolerated where reason is left free to combat it." Thomas Jefferson's First Inaugural Address (1801).... It is for the court, not the jury, to determine as a matter of law whether an allegedly libelous statement is one of fact or opinion. Id. (emphasis added). 18

25 Even if Milkovich is interpreted to suggest that pure expressions of opinion do not receive automatic, absolute protection under the U.S. Constitution, the Virginia Supreme Court is not bound by such an interpretation in evaluating defenses that rely on the Virginia Constitution. Indeed, this Court reaffirmed the protection for opinion articulated in Chaves in the post-milkovich case of Williams v. Garraghty, 249 Va. 224, 233, 455 S.E. 2d 209, 215 (1995), stating that pure expressions of opinion are protected by Article I, Section 12 of the Constitution of Virginia. As a result, a statement of pure opinion such as Director of Butt Licking cannot serve as the basis of a defamation claim in Virginia. 19

26 CONCLUSION For the foregoing reasons, amici respectfully request that the decision of the lower court be affirmed. RESPECTFULLY SUBMITTED, The Thomas Jefferson Center for the Protection of Free Expression, The Reporters Committee for Freedom of the Press, The Student Press Law Center BY COUNSEL J. Joshua Wheeler VSB # Robert M. O'Neil Counsel for Amici Curiae 400 Peter Jefferson Place Charlottesville, Virginia Robert M. O'Neil, Director The Thomas Jefferson Center for the Protection of Free Expression 400 Peter Jefferson Place Charlottesville, Virginia Jane E. Kirtley, Executive Director The Reporters Committee for Freedom of the Press 1101 Wilson Boulevard Arlington, Virginia Mark Goodman, Director The Student Press Law Center 1101 Wilson Boulevard Arlington, Virginia

27 REQUIRED CERTIFICATE I hereby certify that on November 10, 1997, in compliance with Rule 5:26(d), I mailed three copies of the foregoing Brief of Amici Curiae Brief, first-class and postage prepaid, to: Leisa Kube Ciaffone Gentry Locke, Rakes & Moore 10 Franklin Road, SE P.O. Box Roanoke, Virginia Counsel for Appellant Daniel S. Brown Woods, Rogers & Hazelgrove P.O. Box Roanoke Virginia Counsel for Appellee J. Joshua Wheeler VSB # The Thomas Jefferson Center for the Protection of Free Expression 400 Peter Jefferson Place Charlottesville, Virginia Counsel for Amici Curiae 21