Levine and Wermiel-hyperlinked version.docx (Do Not Delete)
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WASHINGTON LAW REVIEW
3/13/2013 7:48 PM
[Vol. 88:1
preliminary memorandum prepared for the cert. pool (serving six of the nine Justices), a law clerk advised the Justices that, in essence, the Vermont Supreme Court had gotten it right—i.e., “[o]n its face, Gertz does not apply to a non-media defendant, and this Court has never so extended it.”30 In the margins of his copy of that memorandum, Powell sketched out by hand what appeared to be his conflicting views about the issue. He noted that Gertz was “concerned [with the] tension [between the] ‘need for a vigorous and uninhibited press and the legitimate [interest] in redressing wrongful injury,’”31 adding both that the Court “must consider [the] state interest in protecting/compensating private persons subject to defamation” and the “uncontrolled discretion of juries to award damages where no actual loss unnecessarily inhibits [First Amendment] freedoms.”32 Thus, he wrote that, although the “doctrine of presumed damages [is] bad,” the Court should “only interfere [with state] law on damages where that law implicates [First Amendment] concerns.”33 Ultimately, Powell concluded, the question before him was “does [the] commercial speech at issue here warrant intruding in state law?”34 By the time the Greenmoss Builders case arrived at the Court, Byron White had come to harbor serious reservations about the Court’s development, following Sullivan, of a constitutional law of defamation.35
Powell Archives, Washington and Lee Law Library), available at http://law.wlu.edu/powellarchives/page.asp?pageid=1355. Thus, “[u]nless the Court wishe[d] to overturn that conclusion, the holding that Gertz does not apply is really only dicta.” Id. 30. Id. at 6. 31. Id. at 8. 32. Id. 33. Id. 34. Id. 35. See DENNIS J. HUTCHINSON, THE MAN WHO ONCE WAS WHIZZER WHITE: A PORTRAIT OF JUSTICE BYRON R. WHITE 421–23 (1998) (noting that, by the time Greenmoss Builders came before the Court, Justice White “regretted joining New York Times v. Sullivan”); see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 398–99 (1974) (White, J., dissenting) (“I continue to subscribe to the New York Times decision and those decisions extending its protection to defamatory falsehoods about public persons. My quarrel with the Court stems from its willingness ‘to sacrifice good sense to a syllogism’—to find in the New York Times doctrine an infinite elasticity.”) (footnote omitted); Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 60 (1971) (White, J., concurring) (noting that he was in the minority in his view that Sullivan should not be expanded beyond its current borders); Ocala Star-Banner Co. v. Damron, 401 U.S. 295, 301 (1971) (White, J., concurring) (“Inevitably, [Sullivan], by imposing on libel and slander plaintiffs the burden of showing knowing or reckless falsehood in specified situations will result in extending constitutional protection to lies and falsehoods which, though neither knowing nor reckless, do severe damage to personal reputation.”); Greenbelt Co-op. Pub. Ass’n v. Bresler, 398 U.S. 6, 22 (1970) (White, J., concurring) (cautioning against extending Sullivan).