Few legal issues have generated such a wealth of case law and commentary as freedom of the press, so that my present overview cannot possibly be comprehensive. I accordingly focus on a topic that has long been important to me as a state court judge: the role of state constitutional law in preserving freedom of the press. I take this occasion to reassert that state courts should play a lead role in securing this precious right, and to consider some of the methodological problems they confront in doing so.
I write not only as a judge, but also as a former journalist concerned with how courts interact with the press and public. As I have suggested elsewhere, the third branch of government must learn to communicate more effectively with and through the Fourth Estate. Making this suggestion is simply another way of acknowledging that robust, unfettered, informed journalistic discourse is indispensable to the health of our society. The New York State Court of Appeals — that state’s highest court — has affirmed that principle on several occasions.
Probably every introductory constitutional law course traces the emergence of our modern conception of civil liberties over the half-century that followed the First World War. Federal courts expounding the First Amendment figured prominently in this process — perhaps inevitably, as the crucial cases involved the expression of political opinion to national audiences (e.g., New York Times Co. v. Sullivan). But by the late 1970s the terms of the debate had shifted, and the author of the Sullivan decision, Supreme Court Justice William Brennan, had identified state courts as an increasingly important forum for the development of constitutional law.
A bit later in Michigan v. Long (1983), the Supreme Court clarified when it would recognize that a state court decision rested on independent and adequate state law grounds and was therefore beyond review. These cues lent renewed interest to the emerging dialogue among state judges about when and how to make constitutional law independently.
In this context, the New York State Court of Appeals put theory into practice in the 1991 decision Immuno AG. v. Moor-Jankowski (often called “Immuno II”). Dr. Moor-Jankowski edited the Journal of Medical Primatology, which published a letter to the editor critical of a research plan by plaintiff Immuno AG., a multinational corporation that manufactures blood plasma products. The plan involved capturing chimpanzees and exposing them to hepatitis at a facility in Africa; the letter suggested that this plan would be unnecessarily harmful to chimpanzee populations and was designed to circumvent rules that protect that endangered species. On the basis of this letter and some other critical remarks by Moor-Jankowski published in the New Scientist magazine, Immuno sued him as well as several other individuals and both journals for defamation. All other defendants settled, but Moor-Jankowski, after extensive and expensive discovery, moved for summary judgment. The New York courts granted this motion on the ground that both publications were expressions of opinion and, as such, constitutionally shielded from defamation liability. (See Immuno AG. v Moor-Jankowski, 1989, aka “Immuno I“).
The view that expressions of opinion enjoy strong protection under the U.S. Constitution stemmed from the Supreme Court’s dictum that under the First Amendment “there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas” (Gertz v. Robert Welch, Inc., 1974). Soon after Immuno I, the Supreme Court clarified that, as such, opinion enjoys no special federal constitutional protection; the issue with communications of any sort is merely whether they imply a false assertion of fact made with “actual malice” (see Milkovich v. Lorain Journal Co., 1990). The Supreme Court then vacated and remanded Immuno I to the New York State Court of Appeals, and directed that we further consider our decisions in light of Milkovich.
On remand, the New York court held first that Immuno had not met its burden of showing that any assertion of fact implicit in the letters was false, so that summary judgment was proper even under Milkovich. Having followed the Supreme Court’s direction to consider Milkovich, our court then returned to the source of rights that is our primary concern in most cases: state law — specifically, the New York Constitution. Explaining that “the Federal Constitution fix[es] only the minimum standards applicable throughout the Nation” and leaves intact “the traditional role of State courts in applying privileges, including the opinion privilege,” the New York State Court of Appeals considered whether the state constitution preserved such a privilege and thus furnished an independent ground for dismissal. Noting New York’s traditional hospitality to the free exchange of ideas — and the contrast between the affirmative language with which the New York Constitution guarantees freedom of the press and the more negative wording of the First Amendment — the court concluded that the state constitution did, indeed, provide broader protection. 1
Concretely, this means that courts determining whether implied factual assertions in a statement of opinion are actionable must consider the full context of the statements, including the expectations of the average reader of the publication. Under this standard, even if one could construe the criticisms of Immuno to imply factual assertions, they were still not actionable, as a reasonable reader of the scientific journals in which they appeared would recognize their provenance in the marketplace of ideas.
The choice to rest the Immuno II decision primarily on our state constitution was made after a good deal of internal debate, reflected in no fewer than three concurring opinions — highly unusual for our court, which most often speaks in a single voice. These concurrences deserve particular attention because they raise issues with which other state high courts have grappled in comparable cases — indeed, they display the range of available methodologies for state court review, and the advantages and defects of each methodology. Judge Richard Simons, for example, suggested that our court, having developed no distinction between federal and state law on defamation and free speech in Immuno I, and having now construed Milkovich to support a disposition favorable to the media defendant, should not have addressed state constitutional law at all, which unnecessarily insulated the court’s construction of Milkovich from Supreme Court review. The price of this choice, he argued, was a proliferation of dicta on both constitutions. Judge Stewart Hancock Jr. separately opined that under Milkovich, Moor-Jankowski was still entitled to summary judgment; he would in certain cases advocate dual constitutional analysis, but this was not the case.
While these concerns are valid, other weighty factors support applying state constitutional law even in cases where, as in Immuno, some federal law analysis is inescapable. Federal standards may be uncertain, in which case state courts, though willing to decide on federal grounds when asked, may still find a dual analysis useful to ensure finality and provide clear guidance to the public. This need was particularly acute in Immuno, where the shift in federal standards occurred only after the litigation had produced a significant statement by our court. As a review of the first Immuno decision and its published “Points of Counsel” shows, before Milkovich, Immuno conceded that under Gertz, statements of opinion enjoy federal constitutional protection (see Immuno I at 549). With this point granted and battle joined on whether readers would regard the disputed letters as fact or opinion, it would have been gratuitous at best for Moor-Jankowski to reach out and brief differences in the two relevant constitutions.
After Milkovich, of course, Moor-Jankowski’s incentive to explore the differences was apparent. Equally clear was the need, given the cost and length of the litigation, for a result immune to further disturbance — although the court had recognized the urgency of this consideration for libel defendants from the first (see Immuno I at 561; Immuno II at 256). Finally, it was important to announce a settled standard on which the public could rely, whatever new developments might emanate from Washington. Under the circumstances, dual constitutional analysis was particularly appropriate.
At least one other state high court justice concurring in the dismissal of a defamation complaint has argued that the resort to state constitutional law is unnecessary because federal protections remain sufficient to dispose of the claim even after Milkovich (see Vail v. The Plain Dealer Publ’g Co., Ohio 1995). Unlike the concurring judges in Immuno II, however, Ohio Justice Paul Pfeifer emphasized that the relevant state constitutional language, on its face, actually provides less protection to the press than the First Amendment. This is because the Ohio Constitution — like that of New York and many other states, but unlike that of the United States — qualifies its guarantee of free expression by expressly holding speakers, writers and publishers “responsible for the abuse of the right” (Ohio Constitution, Article I, Section 11). Justice Pfeifer’s objection thus apparently pertains more to textual detail than to any broad conception about sovereignty or judicial restraint. Even so, it identifies a problem of construction that courts must confront in any state where a defamation defendant relies on constitutional language that contains the “responsible for the abuse” qualification. This problem is not insuperable, as the “responsibility” clause may be construed in a way compatible with holding that a state’s free-press guarantee is more protective than the First Amendment (see, e.g., Wampler v. Higgins, 2001; see also Davidson v. Rogers, 1978).
The Immuno II and Vail concurrences discussed so far characterized the use of state law as unnecessary at best. But a third Immuno II concurrence took a different tack — Judge Vito Titone would have decided the case solely on state common law grounds. This approach rested on the perception that the majority’s federal constitutional analysis was “inconclusive” and “unnecessary,” and the principle that courts should decide constitutional issues only after exhausting statutory and common-law alternatives. As the majority noted, both points disregarded the course that the parties steered by briefing only constitutional issues. Also, the Supreme Court’s instructions on remand left our court with little choice but to address these issues within the federal framework. Nevertheless, Judge Titone’s determination to make state law “the first line of protection for the people’s liberties” is compatible with the approach taken by many courts.
For instance, the Supreme Court of Utah — facing another appeal, in light of Milkovich, from the dismissal of a defamation action — opted to rely solely on its state constitution in West v. Thomson Newspapers (1994). Plaintiff West, a small-town mayor, accused the defendants of defaming him by publishing newspaper columns that falsely portrayed him as abusing the power of his office and misleading the public. Defendants obtained summary judgment because the Utah Constitution protects statements of opinion and supports a “totality of circumstances” analysis under which the challenged statements qualified as opinion.
As the West court explained, the choice to rely solely on state constitutional law reflected the “primacy” approach intended to minimize unnecessary federal review, facilitate the independent role of state constitutions, and acknowledge that state law rights are prior to federal constitutional rights. These are commendable goals, and other high courts addressing free-speech and free-press issues have identified further ways in which a primacy approach may promote judicial economy (see, e.g., Davenport v. Garcia, 1992). Of course, because the U.S. Constitution sets the minimum, or floor, for individual liberties and state constitutions, it may be hazardous to venture on state constitutional adjudication without also keeping an eye on the federal parameters. And, as noted, Immuno illustrates how a state court determined to develop state law may find that the mandates of federal law and the need for a final and economical resolution necessitate a dual constitutional analysis.
The Supreme Court of Louisiana has also found that the need for an efficient summary adjudication of defamation claims involving the press required it to articulate differences between state and federal law. In Sassone v. Elder (1993), defendants broadcast television news reports concerning plaintiff attorneys and their client, Marie Giordano Lloyd. Lloyd claimed rights, as heir to a previous landowner, to some mineral-rich lands and to royalties from these lands. With the help of her attorneys, she induced other heirs to join her in a class action asserting these rights and to contribute funds to the project. The television reports included footage of a local district attorney and other concerned persons who suggested that Lloyd’s scheme was fraudulent, as well as an interview in which plaintiffs were confronted with skeptical questions about the project. Plaintiffs alleged that the newscasts defamed them, and the intermediate appellate court held that under Milkovich, the televised reports contained statements that a juror could reasonably understand to imply defamatory facts.
In reversing, the Supreme Court of Louisiana observed that, unlike in the federal system, the state summary judgment standard in defamation cases differed from the standard in other civil cases. The difference arises from the recognition that because “the threat of unmeritorious litigation could otherwise have a chilling effect on freedom of the press, adequate protection of that constitutional guarantee requires that plaintiffs in defamation cases demonstrate at an early stage that they can meet their burden of proof at trial.” Therefore, while Louisiana at that time normally adhered to a strong preference for full trial on the merits and set a heavy burden on summary-judgment movants, it dispensed with this rule in defamation cases. (A movant is the moving party in a case, the party bringing the action or moving for an order, etc.) Applying the correct, relatively relaxed standard, the Louisiana high court determined that the “principal inference” reasonable viewers would draw from the broadcasts would not be that plaintiffs were “shady lawyers.” As the court noted, a reasonable viewer would consider the allegedly defamatory statements in the context of the entire broadcasts, and so would recognize that the broadcasts aimed mainly to question Lloyd’s motives rather than plaintiffs’. Accordingly, the court reinstated summary judgment.
Sassone differs analytically from the other cases we have considered. It does not hold that the state constitution affords stronger protection to the press than the First Amendment. Such an analysis was possible, as Justice James L. Dennis suggested in a concurrence. As the concurrence notes, the state constitution was enacted during the interval between Rosenbloom v. Metromedia (1971) and Gertz v. Robert Welch, Inc. (1974). Under the plurality opinion in Rosenbloom, defamation plaintiffs would have to prove that defendants who commented on affairs of public concern spoke with actual malice, while after Gertz the plaintiff’s status has been dispositive and only public figures must prove actual malice. Justice Dennis urged that the ratification of the Louisiana Constitution before Gertz locked in the Rosenbloom standard, so that the Sassone plaintiffs, though private figures, would have the burden of showing that the defamatory statements were made with actual malice — a burden they had not met.
In declining this invitation the other justices passed up one opportunity for federal-state constitutional comparison, and focused instead on how constitutional norms required an adjustment in state civil procedure. The effect of this adjustment, at first glance, was arguably to bring Louisiana procedure more nearly into alignment with the federal summary-judgment principles set forth in Anderson v. Liberty Lobby (1986), another defamation case. Yet ultimately the test the Sassone court developed — requiring a determination of the principal inference a reasonable viewer of the telecasts would draw in context — is similar to Immuno II and suggests that media defamation defendants in Louisiana have a valuable alternative to Milkovich.
All of this merely goes to show that state courts have a rich variety of resources with which to develop principles appropriate to local conditions but responsive to the fundamental values enshrined in the Bill of Rights.
In using defamation as my point of entry for reviewing the role of state courts in securing freedom of the press, I do not mean to overlook other areas in which this role may be critical. State courts have, for instance, found that the constitutional protection trumps the interest in inhibiting publication of trade secrets (e.g., State ex rel. Sports Mgmt. News, Inc. v. Nachtigal, 1996). They deliberate on whether long-arm statutes confer jurisdiction over persons who publish on the Internet; on how statutes of limitations apply to Internet publication (e.g., Firth v. State of New York, 2002); and on other emerging issues relating to that medium. They also hear cases on public access to court proceedings and government documents; on the evidentiary privileges that may protect reporters’ communications with their sources; and on many other issues that potentially implicate freedom of the press. In each of these areas state courts are taking the lead today, fulfilling the mission that Justice Brennan identified 25 years ago.
1 Article 1, Section 8 of the New York State Constitution states, in part: “Every citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.”