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
Brennan’s contention that Sullivan was the “‘well-spring’ for the Court’s First Amendment libel jurisprudence,” conceding it “was indeed a great opinion and [that] it did mark the Court’s first step into the field,” but gently asserting that it was “a natural development of principles that have always underlain our First Amendment jurisprudence” and that it was “presaged by a solid common law development and scholarly opinion.”493 And the central problem of defending Sullivan in the context of Greenmoss Builders did not escape Stevens’s notice: [T]he extensive and passionate discussion of the importance of public debate . . . strikes me as somewhat counterproductive in the context of the particular facts of this case. As I read these parts of the opinion I kept asking myself whether the arguments shed much light on the question whether commercial credit reports are entitled to special protection.494 In the end, Stevens counseled, “[u]nless someone joins Byron,”495 Brennan could and, in Stevens’s view should, “safely assume that eight members of the Court (perhaps I should say seven) accept the basic holding in New York Times.”496 It was then not entirely certain to which of his colleagues Stevens was referring in the quoted parenthetical—the mystery, however, would be cleared up soon enough. As disappointed as he was by Stevens’s response, Brennan knew that he had no choice but to accommodate him. After all, as he later
493. Id. Indeed, in Sullivan, Brennan drew not only from the Court’s previous First Amendment precedent applying a categorical approach to define those narrow categories of expression left unprotected, including perhaps most significantly his own opinion in Roth v. United States employing the concept of definitional balancing to bring much allegedly “obscene” speech within the protections of the First Amendment, see N.Y. Times, Co. v. Sullivan, 376 U.S. 254, 269 (1964) (citing Roth v. United States, 354 U.S. 476 (1957)), but also from ongoing development of the common law, most notably his derivation of the actual malice standard from an analogous concept adopted by the Kansas Supreme Court in Coleman v. MacLennan, 98 P. 281 (Kan. 1908), see Sullivan, 376 U.S. at 272–76. For his part, Stevens did much the same in his own opinion for the Court just the previous year in Bose Corp. v. Consumer Union of U.S., Inc. 466 U.S. 485, 504 (1984) (explaining necessity of independent appellate review of defamation judgments, in significant part, based on both common law principles and role of courts in determining whether the expression at issue in a given case falls within a defined category of speech unprotected by the First Amendment). See also Bartnicki v. Vopper, 532 U.S. 514, 535 (2001) (Stevens, J.) (“It was the overriding importance of that commitment [to debate] that supported our holding [in Sullivan] that neither factual error nor defamatory content, nor a combination of the two, sufficed to remove the First Amendment shield from criticism of official conduct.”); supra notes 126 and 302 and accompanying text. 494. Letter from Justice Stevens to Justice Brennan, supra note 491, at 1–2. 495. Id. at 2. 496. Id.