Levine and Wermiel-hyperlinked version.docx (Do Not Delete)
2013]
THE LANDMARK THAT WASN’T
3/13/2013 7:48 PM
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Those reservations become apparent in an October 13, 1983 dissent that White circulated from what then appeared to be a denial of certiorari in the Greenmoss case. In that never-issued dissent, White argued that the issue “whether the First Amendment actual malice standard applies in a defamation action brought by a private plaintiff against a non-media defendant” was both “important and unsettled” and therefore “deserves our attention.”36 White correctly acknowledged that the Court had “several times, without discussion, applied New York Times in cases involving public figure plaintiffs and nonmedia defendants,”37 specifically citing Garrison v. Louisiana38 and Henry v. Collins,39 and noted that “New York Times was decided along with Abernathy v. Sullivan,40 which involved four individual petitioners to whom the same standards were applied as to the newspaper.”41 However, he also observed that, in Hutchinson v. Proxmire,42 the Court asserted that it had “‘never decided’ whether New York Times extends to nonmedia defendants, thus indicating that the question remains open.”43 In addition, White contended that Greenmoss Builders raised what he described as the “related question” of Gertz’s applicability “in a case involving a private plaintiff and a nonmedia defendant.”44 In White’s view, these issues are “especially appropriate for consideration by this Court because of [their] implications for First Amendment jurisprudence as a whole.”45 And, White, citing Chief Justice Burger’s concurring opinion in Bellotti,46 wrote, “this issue intersects with another difficult issue: the extent to which the institutional press perhaps enjoys unique privileges [under the First Amendment].”47 36. Justice White, Draft Dissent from Denial of Petition for Certiorari One 1 (Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.) (Oct. 13, 1983) (on file with the White Papers, Library of Congress Manuscript Division) (on file with Washington Law Review). 37. Id. at 3. 38. 379 U.S. 64 (1964). 39. 380 U.S. 356 (1965). 40. 376 U.S. 254 (1964). 41. Justice White, Draft Dissent from Denial of Petition for Certiorari One, supra note 36, at 3. Abernathy v. Sullivan, a separate defamation action that Sullivan had instituted against civil rights leader, Rev. Ralph David Abernathy and three other individual, nonmedia defendants, was consolidated in the Supreme Court with the New York Times case. 42. 443 U.S. 111 (1979). 43. Justice White, Draft Dissent from Denial of Petition for Certiorari One, supra note 36, at 3 (quoting Hutchinson, 443 U.S. at 133 n.16). 44. Id. at 4. 45. Id. at 5. 46. Id. (citing First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 798 (1978)). 47. Id.