Vol. 73, No. 3, March
2000
Sued for Speaking Out
If your client is sued based upon
communications to a governmental body, your best defense to liability
may be the Petition Clause to the First Amendment. The strength of your
defense will depend upon which of two standards the Court applies to
define tort liability under the clause - the Noerr-Pennington Doctrine
or the actual malice standard.
by Aaron R. Gary
uppose you represent a group of citizens working together
for urban renewal and beautification. A primary objective of the group
is to rid the city of the visual blight of billboards. Your clients call
you to happily report they have successfully convinced the city council
to ban all billboards within the city limits. Perhaps you also represent
the local newspaper which, seeing the economic benefit of eliminating a
major competitor for the city's advertising dollar, heavily funded the
citizens' group and actively sought action from the city council. Two
days later, the citizens and the newspaper call you in a fury to report
they have been sued by the largest billboard company in town. The
lawsuit alleges a litany of business torts and statutory claims which,
boiled down, assert that your clients have interfered with the
plaintiff's business.
The infrequently discussed Petition Clause of the First
Amendment, which encompasses broader petitioning activity than you
may expect, is likely to be your clients' best defense. The strength of
the defense will depend upon whether immunity is established under the
very protective Noerr-Pennington doctrine or the less protective actual
malice standard. To date, the U.S. Supreme Court has applied both
standards in different contexts, but has failed to precisely define the
appropriate application for each.
What is Petitioning Activity?
The First Amendment Petition Clause guarantees
"the right of the people ... to petition the Government for a redress of
grievances." Petitioning is considered to be any form of communication
to a governmental body (whether legislative, executive, agency, or
judicial), any request for governmental action, or any other attempt to
influence public officials or influence the passage or enforcement of
laws.1 "The First Amendment guarantees
defendants' right to attempt to enlist the government on their side of
the dispute."2
Wisconsin cases have recognized that writing letters to the Veteran's
Administration seeking assistance in obtaining medical services,
demanding action from the Public Service Commission, and accessing the
courts, are all forms of protected petitioning activity.3 Lobbying the legislature or executive branch for
changes in business regulation, filing suit to enjoin an ex-employee
from disseminating trade secrets, testifying at a zoning hearing, and
complaining to law enforcement about suspected illegal conduct, are all
forms of protected petitioning activity.4
Petitioning activity need not be politically motivated to be protected;
it may be driven solely by a desire for personal or economic gain.
The petitioning activity of both individuals and businesses has been
increasingly met with tort suits brought by the objects of the
petitioning, often including claims for defamation and business torts.
Those who have found themselves defending such suits include ordinary
citizens, political activists, and such corporate giants as IBM, GM, and
AT&T.5
What is the Noerr-Pennington Doctrine?
The Noerr-Pennington doctrine, derived from the antitrust cases of
Eastern R.R. Presidents Conference v. Noerr Motor Freight and
United Mine Workers of America v. Pennington, recognized
federal antitrust immunity where the alleged anticompetitive conduct
took the form of petitioning for governmental action.
In Noerr, trucking companies alleged and the trial court
found that railroads had violated the Sherman Act by engaging in a
vicious, corrupt, and fraudulent lobbying effort, which was deceptively
conducted and motivated by an intent to destroy the truckers as
competitors. The U.S. Supreme Court held that no violation of the
Sherman Act "can be predicated upon mere attempts to influence the
passage or enforcement of laws," and that attempts "to persuade the
legislature or the executive to take particular action" will not give
rise to antitrust liability.6
In Pennington, the Court reiterated, "Noerr shields
from the Sherman Act a concerted effort to influence public officials
regardless of intent or purpose."7 The
antitrust case of California Motor Transport Co. v. Trucking
Unlimited rounded out the Noerr-Pennington doctrine, explicitly
recognizing that Noerr's petitioning immunity applies
regardless of which branch or department of government is
petitioned.8
Immunity under the Noerr-Pennington doctrine is not absolute. Under
the "sham exception," immunity is forfeited where the petitioning
activity, viewed objectively, is a "mere sham."9 To overcome Noerr-Pennington immunity, a plaintiff
must first show that, based upon an objective analysis and regardless of
the defendant's subjective intent or purpose, the petitioning activity
was objectively baseless; that is, the petitioning was not genuine and
no reasonable person could have expected it to result in a favorable
outcome or governmental action. If the plaintiff meets this burden, the
plaintiff must then prove the defendant's subjective motivation and
demonstrate that the petitioning was not made for any legitimate
purpose, but was solely an attempt to misuse the governmental process to
directly harm the plaintiff.10
Applying the Noerr-Pennington Doctrine
While the Noerr-Pennington doctrine initially arose in the context of
federal antitrust claims, most states' courts (including Wisconsin,
Illinois, Minnesota, Iowa, Michigan, California, and New York) and
federal circuits (including the Seventh) have applied the doctrine to
bar state tort and statutory claims. The Noerr-Pennington doctrine has
been applied to claims for tortious interference with contract/business
relations, defamation, civil rights violations, abuse of process, and
intentional infliction of emotional distress.11 The rationale for these decisions is that,
although the Noerr-Pennington doctrine grew out of antitrust law, the
doctrine is one of constitutional dimension which defines necessary
protections for First Amendment petitioning activity, and therefore must
be applied to all claims.12 The Seventh
Circuit and Wisconsin Court of Appeals have relied upon the
Noerr-Pennington doctrine to analyze First Amendment petitioning rights
in tort suits.13
Is Noerr-Pennington a Constitutional Doctrine?
If Noerr-Pennington is a constitutional doctrine, it should be
applied equally to all claims implicating the First Amendment right to
petition. If not, the doctrine should be limited to its federal
antitrust origin.
In Noerr, the Supreme Court offered two bases for its
holding. First, as a matter of statutory construction, Congress never
intended the Sherman Act to target activity seeking legislation or law
enforcement.14 Of particular importance,
the Supreme Court stated, "Because of the view we take of the proper
construction of the Sherman Act, we find it unnecessary to consider any
of these other defenses" of the railroads, "including the contention
that the activities complained of were constitutionally protected under
the First Amendment."15 Second, as a matter
of public policy, the concept of a representative democracy depends upon
the right of citizens to make their views and wishes known to the
government. Any law abridging the right of citizens to freely inform the
government of their wishes would raise important constitutional
questions, even if the citizens' intent was not admirable, but selfish
or greedy.16
Subsequent Supreme Court cases provide mixed signals as to the
foundation of Noerr. In California Motor Transport the
Court reaffirmed the two bases for its decision in Noerr but
also indicated that the decision rested upon the First Amendment right
to petition and its corresponding immunity.17 In City of
Columbia v. Omni Outdoor Adver. Inc. the Court strongly
suggested that the Noerr-Pennington doctrine is grounded in the First
Amendment right to petition, and applied Noerr-Pennington immunity to
federal antitrust claims, but did not apply the doctrine to state
statutory and tort claims.18 In FTC v.
Superior Court Trial Lawyers Ass'n, the Court characterized
Noerr as "interpreting the Sherman Act in the light of the
First Amendment's Petition Clause."19 In
NAACP v. Claiborne Hardware Co., a nonantitrust case involving
tort and statutory claims, the Court effected its analysis of the First
Amendment right to petition through a lengthy discussion of
Noerr, and applied Noerr's holding to conclude that
the activity at issue was protected by the First Amendment.20
In the most significant Noerr-Pennington case since California
Motor Transport, the Court in Real Estate Investors v. Columbia
Pictures recognized the First Amendment underpinnings of the
Noerr-Pennington doctrine while simultaneously calling it a "doctrine of
antitrust immunity."21 The Court thereafter
expressly opened the door to the possibility that the doctrine may
extend beyond the scope of antitrust law, stating, "whether applying
Noerr as an antitrust doctrine or invoking it in other
contexts."22 The Court cited, among other
cases, Bill Johnson's Restaurants Inc. v. NLRB, which applied a
Noerr-Pennington type analysis to balance First Amendment Petition
Clause concerns in a federal labor law case.23
These cases strongly suggest a First Amendment basis for the
Noerr-Pennington doctrine, and hint that the doctrine may be applied
outside the antitrust context.
Can the McDonald Case be Reconciled?
Prior to 1985 the Supreme Court had infrequently addressed the First
Amendment Petition Clause in relation to state tort law, and had never
attempted to set forth a coherent doctrinal framework such as that
applied to Speech Clause cases (although the Court had relied upon the
Noerr-Pennington doctrine in analyzing the tort-related Petition Clause
issues in Claiborne Hardware). In 1985 the Court decided
McDonald v. Smith, which remains the only Supreme Court case
directly setting forth the scope of First Amendment Petition Clause
immunity in a defamation action.
In McDonald, the defendant was sued for defamation after he
sent letters to the President opposing the plaintiff's application for
appointment as U.S. Attorney. While the letters constituted protected
petitioning activity, the Supreme Court held that the Petition Clause
did not confer absolute immunity, and that the appropriate standard of
immunity was the actual malice test of New York Times Co. v.
Sullivan; that is, tort liability may be imposed if the defendant
knew the statement was false or acted with reckless disregard of its
truth or falsity.24
The Court offered two bases for its decision. First, the Court
suggested that the 140-year-old case of White v. Nicholls
precluded any other result. While the White case is strikingly
similar in facts, the Court's reliance upon it in determining the scope
of constitutional Petition Clause immunity is puzzling because
White involved only a common law defamation
privilege.25 The Court's reliance upon
White is also puzzling since White pre-dates (by 119
years) the Supreme Court's first acknowledgment that common law
defamation claims implicate First Amendment values.26 Second, the Court equated First Amendment
petitioning interests and speech interests: "The right to petition is
cut from the same cloth as the other guarantees of [the First]
Amendment, and is an assurance of a particular freedom of
expression."27 By characterizing
petitioning as merely a form of speech, the Court ignored that the core
of petitioning is not expressing one's ideas, but rather is securing
governmental action which, unlike public speech, cuts to the heart of
the relationship between citizen and sovereign.
The importance of petitioning activity is not limited to the
political arena.28 For example, a
communication to law enforcement typically lacks political or expressive
value and does not "promote the free exchange of ideas," but is valuable
as a means of securing a response.29 Public
speech forming the "marketplace of ideas" is not comparable to a
specific request by an aggrieved citizen that the government remedy a
perceived wrong, important only to that citizen. "The fact that a
grievance may not arouse sufficient public concern to generate political
support makes the individualized exercise of the right to petition all
the more important."30 The separate textual
guarantees in the constitution of speech and petition also suggest that
the two are not identical. In addition, there are safeguards inherent in
petitioning that are lacking in speech: the message is not broadly
disseminated; the message is received by a governmental agency, which
reviews the message and is presumed competent to evaluate the merits of
the message; and the subject of the message, or opposing interests,
generally have the opportunity to respond and present their own
viewpoint.
Two years prior to McDonald, the Supreme Court suggested in
Bill Johnson's Restaurants that petitioning and speech are not
synonymous: "Just as false statements are not immunized by the First
Amendment right to freedom of speech, baseless litigation is not
immunized by the First Amendment right to petition."31 This language, along with the authority cited,
could be read to support application of the Noerr-Pennington doctrine to
define Petition Clause immunity, and application of the New York
Times actual malice standard to define Speech Clause immunity. Such
an interpretation would be supported by Claiborne Hardware. It
also would comport with decisions describing the concern in petitioning
cases as the danger of baseless, harassing, or oppressive use of
petitioning. 32
McDonald is a perplexing case. It refers to Noerr-Pennington
cases as "decisions interpreting the Petition Clause in contexts other
than defamation."33 As the
McDonald case was litigated in the lower courts, the District
Court and the Court of Appeals recognized the potentially competing
constitutional standards of the Noerr-Pennington sham exception and the
New York Times actual malice standard, the unsettled nature of
the Petition Clause right, and the conflict among federal circuit
decisions.34 The McDonald case
reached the Supreme Court screaming for an exposition of the scope and
nature of Noerr-Pennington immunity. The Supreme Court offered none. The
Court failed to explain why the scope of the Petition Clause is
different in defamation cases than antitrust cases, and failed to
explain why it rejected the Noerr-Pennington doctrine in favor of the
newly applied "actual malice" standard for petitioning cases involving
defamation.35
Importance of Which Standard is Applied
Why should litigants care whether the "sham exception" of the
Noerr-Pennington doctrine or the actual malice standard governs the
scope of immunity for petitioning activity? The significance of the
distinction is twofold.
First, Noerr-Pennington offers an objective standard. The
intent of the defendant is irrelevant if the petitioning is not
objectively baseless. The petitioner's knowledge or motivation is
typically not subject to scrutiny, and the issue often can be decided as
a matter of law.36 The actual malice
standard, on the other hand, is predominantly subjective, based
upon intent, knowledge, or motivation of the defendant.37 Actual malice is shown where the statement was
published "with knowledge that it was false or with reckless disregard
of whether it was false or not," which typically is a question of fact
for the jury.38 Thus, trial often is
required under the actual malice test; trial generally is not required
under the Noerr-Pennington doctrine.
Second, the Noerr-Pennington doctrine is
applied with its own procedural rules. If the petitioner makes a prima
facie showing of petitioning immunity, immunity will be presumed, and
the plaintiff will bear the burden of proving that the sham exception
applies to allow the case to move forward.39 The Ninth Circuit has stated that, to avoid the
chilling effect of litigation on the right to petition, there is a
heightened pleading standard where Noerr-Pennington immunity is
implicated, such that the complaint must include specific allegations of
defendant's conduct demonstrating that the sham exception
applies.40 The Seventh Circuit has
recognized the justification for such a standard, but has provided a
more limited application.41 The heightened
pleading standard allows resolution of petitioning cases on a motion to
dismiss on the pleadings.42 Due to the high
cost of litigation, ultimately prevailing at trial may not be much of a
victory for your client. Dismissal on the pleadings would be.
Would Noerr-Pennington Immunity be Justified in Tort Suits?
The mere threat of protracted litigation often is enough to prevent
individuals and institutions from seeking governmental assistance or
intervention. In Bill Johnson's Restaurants, the Supreme Court
attempted to balance the interests of remediating wrongs with the
competing concern that allowing liability for petitioning will
significantly chill citizens' willingness to engage in this protected
activity. The proper balance, as found by the Court, was application of
the Noerr-Pennington doctrine,43 with its
protective objective standard and opportunity for early decision.
The greater protections afforded by the Noerr-Pennington doctrine
make the Supreme Court's use of the doctrine to date paradoxical. For
example, Noerr involved egregious predatory activity, intended to cause
harm, and pursued solely for economic gain.44 McDonald involved purely political
activity, for no apparent personal gain, directed to the person
responsible for making the political decision.45 The Court's limitation of the more protective
Noerr-Pennington doctrine to antitrust cases (involving only commercial
and economic interests), and its application of the less protective
actual malice standard to cases involving political participation,
inverts long-held constitutional principles that political interests are
entitled to greater constitutional protection than economic interests.46
Aaron R. Gary, University of California-Davis
1992, practices commercial litigation with the Madison firm of Axley
Brynelson LLP. |
After McDonald was decided, several courts reversed prior
decisions that had applied Noerr-Pennington immunity in tort
cases.47 The recent trend, however, appears
to recognize the broader protections afforded by the Noerr-Pennington
doctrine and to make efforts to apply Noerr-Pennington immunity rather
than the actual malice standard.48 For
example, the Tenth Circuit, deeming Noerr-Pennington a constitutional
doctrine that merely originated in antitrust law, recently rejected
McDonald's actual malice test and instead applied the
Noerr-Pennington sham exception, with its objective standard and
procedural advantages, to affirm early dismissal of the action.49
Conclusion
If your client has been sued based upon communications to a
governmental body, the First Amendment Petition Clause may provide a
strong defense to liability. The scope of the defense is subject to
dispute and may vary depending upon the claim. You may argue for
dismissal on the pleadings or summary judgment based upon the
Noerr-Pennington doctrine and its nearly insurmountable sham exception.
At a minimum, the plaintiff must prove actual malice. Because the mere
fact of litigation often is as damaging to a client as the result of
litigation, the Noerr-Pennington doctrine may be a powerful tool in
defending lawsuits based upon petitioning activity.
Endnotes
1 Eastern R.R. Presidents
Conference v. Noerr Motor Freight Inc., 365 U.S. 127, 135-37
(1961); United Mine Workers of America v. Pennington, 381 U.S.
657, 670 (1965); California Motor Transp. Co. v. Trucking
Unlimited, 404 U.S. 508, 510 (1972).
2 Havoco of America Ltd. v.
Hollobow, 702 F.2d 643, 650 (7th Cir. 1983).
3 State ex rel. Thomas v.
State, 55 Wis. 2d 343, 352-53, 198 N.W.2d 675 (1972); Wisconsin
P&L Co. v. Public Serv. Comm'n, 5 Wis. 2d 167, 168, 177, 92
N.W.2d 241 (1958).
4 See infra note 11.
5 See Westfield Partners Ltd.
v. Hogan, 740 F. Supp. 523, 524-25 (N.D. Ill. 1990). See
infra note 11.
6 Eastern R.R. Presidents
Conference v. Noerr Motor Freight, 365 U.S. 127, 129, 133-36
(1961).
7 United Mine Workers of
America v. Pennington, 381 U.S. 657, 670 (1965).
8 California Motor Transp. Co.
v. Trucking Unlimited, 404 U.S. 508, 510 (1972).
9 Noerr, 365 U.S. at 144;
Real
Estate Investors v. Columbia Pictures, 508 U.S. 49, 51
(1993).
10 Real
Estate Investors, 508 U.S. at 57-66; City of Columbia v.
Omni Outdoor Adver. Inc., 499 U.S. 365, 380-84 (1991); Allied
Tube & Conduit Corp. v. Indian Head Inc., 486 U.S. 492, 500 n.
4 (1988); Whelan v. Abell, 827 F. Supp. 801, 803 (D.C.D.C.
1993).
11 See Eaton v. Newport Bd.
of Educ., 975 F.2d 292 (6th Cir. 1992); Boulware v. Nevada
Dep't of Human Resources, 960 F.2d 793 (9th Cir. 1992); Oregon
Natural Resources Council v. Mohla, 944 F.2d 531 (9th Cir. 1991);
Christian Gospel Church v. San Francisco, 896 F.2d 1221 (9th
Cir. 1990); King v. Idaho Funeral Service Ass'n, 862 F.2d 744
(9th Cir. 1988); Ottensmeyer v. Chesapeake & Potomac Tel.
Co., 756 F.2d 986 (4th Cir. 1985) (suit over petitioning by
AT&T); United States v. Hylton, 710 F.2d 1106 (5th Cir.
1983); Havoco of America Ltd. v. Hollobow, 702 F.2d 643 (7th
Cir. 1983); Forro Precision Inc. v. Int'l Bus. Mach. Corp., 673
F.2d 1045 (9th Cir. 1982) (suit over petitioning by IBM); Missouri
v. Nat'l Org. of Women, 620 F.2d 1301 (8th Cir. 1980); Feminist
Women's Health Ctr. v. Mohammad, 586 F.2d 530 (5th Cir. 1978);
Stern v. United States Gypsum Inc., 547 F.2d 1329, 1344-45 (7th
Cir. 1977); Gibson v. City of Alexandria, 855 F. Supp. 133
(E.D. Va. 1994); Westfield Partners Ltd. v. Hogan, 740 F. Supp.
523, 525-26 (N.D. Ill. 1990); Zavaletta v. American Bar Ass'n,
721 F. Supp. 96 (E.D. Va. 1989); Surgidev Corp. v. Eye Technology
Inc., 625 F. Supp. 800 (D. Minn. 1986); Weiss v. Willow Tree
Civic Ass'n, 467 F. Supp. 803 (S.D.N.Y. 1979); Sierra Club v.
Butz, 349 F. Supp. 934 (N.D. Cal. 1972); Chavez v. Citizens for
a Fair Farm Labor Law, 148 Cal. Rptr. 278 (Cal. App. 1978);
Protect Our Mountain Env't v. District Court, 677 P.2d 1361
(Colo. 1984); Arim v. Gen. Motors Corp., 520 N.W.2d 695 (Mich.
App. 1994) (suit over petitioning by GM); Bond v. Cedar Rapids
Television Co., 518 N.W.2d 352 (Iowa 1994). See also City of
Columbia v. Omni Outdoor Adver. Inc., 499 U.S. 365, 367-70
(1991).
12 See, e.g., Oregon Natural
Resources, 944 F.2d at 533-34; Video Int'l Prod. v. Warner-Amex
Cable Communication, 858 F.2d 1075, 1084 (5th Cir. 1988);
Havoco of America, 702 F.2d at 650; Suburban Restoration
Co. Inc. v. ACMAT Corp., 700 F.2d 98, 100-01 (2nd Cir. 1983).
See also Hustler Magazine v. Falwell, 485 U.S. 46, 56 (1988);
Desnick v. American Broad. Companies Inc., 44 F.3d 1345, 1355
(7th Cir. 1995).
13 Creek v.
Village of Westhaven, 80 F.3d 186, 192 (7th Cir. 1996);
Wright v. DeArmond, 977 F.2d 339, 346-48 (7th Cir. 1992);
Bell v. City of Milwaukee, 746 F.2d 1205, 1263 (7th Cir. 1984);
Havoco of America Ltd. v. Hollobow, 702 F.2d 643 (7th Cir.
1983); Stern v. United States Gypsum Inc., 547 F.2d 1329 (7th
Cir. 1977); Badger Cab Co. v. Soule, 171 Wis. 2d 754, 762-65,
492 N.W.2d 375 (Ct. App. 1992).
14 Noerr, 365 U.S. at
136-37.
15 Id. at 132 n. 6.
16 Id. at 137-40,
143-45.
17 California Motor
Transp., 404 U.S. at 510-11, 513-15.
18 City of
Columbia v. Omni Outdoor Adver. Inc., 499 U.S. 365, 379-84
(1991).
19 FTC v. Superior Court
Trial Lawyers Ass'n, 493 U.S. 411, 424 (1990).
20 NAACP v. Claiborne
Hardware Co., 458 U.S. 886, 911-14 (1982).
21 Real
Estate Investors v. Columbia Pictures, 508 U.S. 49, 51, 53-54
n.2, 56-58 (1993).
22 Id.
at 59.
23 Bill Johnson's Restaurants
Inc. v. NLRB, 461 U.S. 731, 741, 743-45 (1983).
24 McDonald v. Smith,
472 U.S. 479, 480-82 (1985). See New York Times Co. v.
Sullivan, 376 U.S. 254, 279-80 (1964).
25 McDonald, 472 U.S. at
484. See White v. Nicholls, 44 U.S. (3 How.) 266 (1845).
26 See New York Times Co. v.
Sullivan, 376 U.S. 254, 283 (1964).
27 McDonald, 472 U.S. at
482-83. The McDonald Court's attempt to avoid "elevat[ing] the
Petition Clause to special First Amendment status," 472 U.S. at 485, by
alluding to the "historical roots of the Petition Clause," id. at 482,
has been criticized by several commentators as cursory, unsupportable,
and historically inaccurate. See Julie M. Spanbauer, The
First Amendment Right to Petition Government for a Redress of
Grievances: Cut from a Different Cloth, 21 Hastings Const. L.Q. 15,
37-38, 52, 68-69 (1993); Norman B. Smith, Shall Make No Law
Abridging ...: An Analysis of the Neglected, but Nearly Absolute, Right
of Petition, 54 U. Cin. L. Rev. 1153, 1175-77, 1180-81, 1186-88
(1986); Stephen A. Higginson, A Short History of the Right to
Petition Government for the Redress of Grievances, 96 Yale L.J.
142, 155-57, 165-66 (1986).
28 United Mine Workers of Am.
v. Illinois State Bar, 389 U.S. 217, 223-24 (1967).
29 Forro Precision Inc. v.
IBM, 673 F.2d 1045, 1060 (9th Cir. 1982).
30 Stern v. United States
Gypsum Inc., 547 F.2d 1329, 1343 (7th Cir. 1977).
31 Bill Johnson's
Restaurants, 461 U.S. at 743. See also Stern, 547 F.2d at
1345.
32 United Mine Workers of Am.
v. Illinois State Bar, 389 U.S. 217, 223 (1967); NAACP v.
Button, 371 U.S. 415, 441-44 (1963).
33 McDonald, 472 U.S. at
480, 484.
34 Smith v. McDonald,
562 F. Supp. 829, 835-42 (M.D.N.C. 1983); Smith v. McDonald,
737 F.2d 427, 428-30 (4th Cir. 1984).
35 Attempting to reconcile
McDonald and Noerr-Pennington, the Third Circuit
applies the actual malice standard where the petitioning activity looks
like mere speech, as in McDonald, and applies the
Noerr-Pennington doctrine where the petitioning activity serves
interests distinct from speech. See San Filippo v. Bongiovanni,
30 F.3d 424, 435, 438-39, 443 (3rd Cir. 1994).
36 Real
Estate Investors, 508 U.S. at 63.
37 Harte-Hanks Communications
Inc. v. Connaughton, 491 U.S. 657, 688 (1989).
38 Masson v. New Yorker
Magazine Inc., 501 U.S. 496, 508-09, 511, 521 (1991);
Harte-Hanks, 491 U.S. at 659, 661, 668, 681, 685-86, 688-90;
New York Times Co. v. Sullivan, 376 U.S. 254, 279-80
(1964).
39 Real
Estate Investors, 508 U.S. 49, 54-56, 65-66 (1993). See
also Bond v. Cedar Rapids Television Co., 518 N.W.2d 352, 354-55
(Iowa 1994).
40 Oregon Natural Resources
Council v. Mohla, 944 F.2d 531, 533 (9th Cir. 1991). See also
Boulware v. State of Nevada Dep't of Human Resources, 960 F.2d 793,
796 (9th Cir. 1992); Razorback Ready Mix Concrete Co. Inc. v.
Weaver, 761 F.2d 484, 486 (8th Cir. 1985); Franchise Realty Corp.
v. San Francisco Local, 542 F.2d 1076, 1082-83 (9th Cir. 1976);
Protect Our Mountain Env't v. District Court, 677 P.2d 1361,
1368-69 (Colo. 1984).
41 See Stern v. United States
Gypsum Inc., 547 F.2d 1329, 1345 (7th Cir. 1977).
42 See, e.g., Oregon Natural
Resources, 944 F.2d at 533. There also are certain procedural
protections under the actual malice standard, see
Harte-Hanks, 491 U.S. at 686-88; Philadelphia Newspapers
Inc. v. Hepps, 475 U.S. 767, 776 (1986); Anderson v. Liberty
Lobby Inc., 477 U.S. 242, 254-55 (1986), but they do not eliminate
the fact-intensive nature of the actual malice inquiry.
43 Bill Johnson's Restaurants
v. NLRB, 461 U.S. 731, 740-41, 743-44 (1983).
44 Noerr, 365 U.S. at
129-33.
45 McDonald, 472 U.S. at
480-81.
46 See, e.g., Florida
Bar v. Went For It Inc., 515 U.S. 618, 622-24 (1995); Rubin v.
Coors Brewing Co., 514 U.S. 476, 481-82 (1995); Dun &
Bradstreet v. Greenmoss Builders Inc., 472 U.S. 749, 758 n. 5
(1985); Central Hudson Gas & Elec. v. Public Serv. Comm'n,
447 U.S. 557, 563-64 (1980); Virginia State Bd. of Pharmacy v.
Virginia Citizens Consumer Council, 425 U.S. 748, 762-63, 771 n. 24
(1976). Two pairs of cases demonstrate this principle best: NAACP v.
Claiborne Hardware Co., 458 U.S. 886, 907, 911-12 (1982) and
FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411, 426-28
& n. 10 (1990); Ohralik v. Ohio State Bar Ass'n, 436 U.S.
447, 456 (1978) and In re Primus, 436 U.S. 412, 432-34
(1978).
47 See, e.g., Harris v.
Adkins, 432 S.E.2d 549 (W. Va. 1993), overruling Webb v.
Fury, 282 S.E.2d 28 (W. Va. 1981); Miner v. Novotny, 498
A.2d 269 (Md. 1985), overruling Sherrard v. Hull, 456 A.2d 59
(Md. App. 1983).
48 See, e.g., Hometown
Properties Inc. v. Fleming, 680 A.2d 56 (R.I. 1996).
49 Cardtoons
LC v. Major League Baseball Players Ass'n, 182 F.3d 1132 (10th
Cir. 1999).
Wisconsin Lawyer