Table of Contents

First Amendment News 302: Cert petition asks Justices to overrule 'public figure' doctrine — relies heavily on 1993 Kagan book review

Justice Stephen Breyer
Justice Stephen Breyer (Supreme Court of the United States)

Breaking news: The Supreme Court hands down ruling in Mahanoy Area School District v. B.L. per Justice Breyer for the majority (8-1), with a concurring opinion by Justice Alito joined by Justice Gorsuch, and Justice Thomas writing in dissent. Below are some key points made by Justice Breyer for the Court:

[1] Circumstances that may implicate a school’s regulatory interests include serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices. . . .

[2] [T]hree features of off-campus speech often, even if not always, distinguish schools’ efforts to regulate off-campus speech. First, a school will rarely stand in loco parentis when a student speaks off campus. Second, from the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day. That means courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all. Third, the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus, because America’s public schools are the nurseries of democracy. Taken together, these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished.

Justice Samuel Alito
Justice Samuel Alito (Supreme Court of the United States)

Alito, Re: Distinguishing off-campus speech 

Justice Alito, though joining in the majority opinion, wrote separately to stress that:

[T]he First Amendment permits public schools to regulate some student speech that does not occur on school premises during the regular school day; this authority is more limited than the authority that schools exercise with respect to on-premises speech; courts should be “skeptical” about the constitutionality of the regulation of off-premises speech;  the doctrine of in loco parentis “rarely” applies to off-premises speech; public school students, like all other Americans, have the right to express “unpopular” ideas on public issues, even when those ideas are expressed in language that some find “inappropriate” or “hurtful”; public schools have the duty to teach students that freedom of speech, including unpopular speech, is essential to our form of self-government; the Mahanoy Area High School violated B.L.’s First Amendment rights when it punished her for the messages she posted on her own time while away from school premises. . .

Official Clarence Thomas portrait
Justice Clarence Thomas (Supreme Court of the United States)

Justice Thomas in dissent

The Justice defended the application of the in loco parentis doctrine and likewise reiterated his "originalist" claim concerning the non-appliaction of First Amendment to students. He ended his opinion with these words:

The Court transparently takes a common-law approach to today’s decision. In effect, it states just one rule:

Schools can regulate speech less often when that speech occurs off campus. It then identifies this case as an “example” and “leav[es] for future cases” the job of developing this new common-law doctrine. . . But the Court’s foundation is untethered from anything stable, and courts (and schools) will almost certainly be at a loss as to what exactly the Court’s opinion today means.

"[A]s a matter of principle the [Sullivan] decision is far more dubious. It is one thing to condemn the common law of defamation as it was applied in a single case, and it is quite a different thing to condemn the basic set of common law principles in their entirety."

Richard Epstein, University of Chicago Law Review (1986).

Professor Epstein's critique notwithstanding, New York Times v. Sullivan (1964) and its progeny have long been deemed settled law, though there have been some objections filed by the likes of Justices Antonin Scalia, Clarence Thomas, and, most recently, by federal Circuit Judge Laurence H. Silberman in his criticism of Sullivan.

* * * *

"The question presented in this case is: Should this Court overrule Curtis and its progeny, and hold that there is no First Amendment requirement for a public figure to prove actual malice to prevail in a libel suit against the publishers of a book criticizing his involvement in political corruption?"

Elizabeth A. McNamara, amicus curiae brief in opposition to petition for writ of certiorari (May 17, 2021)

In his statement of the case in Berisha v. Lawson (No. 20-1063), Petitioner's counsel, Roy A. Katriel, opens his brief with these words:

Roy Katriel (The Katriel Law Firm)

This petition presents an important constitutional question: should the First Amendment continue to shield from liability publishers of false defamatory statements merely because the subject of these statements is deemed a "public figure" and cannot show that they were made with actual malice. Constrained by this Court’s holdings in Sullivan, Curtis, and their various iterations, the District Court and the Eleventh Circuit below absolved respondents from all liability even while assuming that their very public defamatory accusations that petitioner was part of the Albanian mafia and engaged in corrupt arms dealing were false. . .  Because the Court-manufactured "actual malice" requirement for public figure plaintiffs is untethered from the original understanding of the First Amendment and inimical to its values, this Court should overrule it.

Relying on a 2019 concurrence by Justice Clarence, a 1993 scholarly book review by then Professor Elena Kagan, and some 2012 televised remarks by Justice Scalia, he then adds:

Justice Thomas’ concurrence in McKee charged that “New York Times and the Court’s opinions extending it were policy-driven decisions masquerading as constitutional law.” McKee, 139 S. Ct. at 676. It is far from the only such criticism. Before her appointment to the Court, then-Associate Professor Kagan similarly wrote about Sullivan and “the puzzling adoption of the actual malice standard.” Kagan, A Libel Story: Sullivan Then and Now (reviewing Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment (1991)), 18 Law and Social Inquiry 197, 199 (1993) . . . . More bluntly, she offered that, "[i]n extending Sullivan, the Court increasingly lost contact with the case’s premises and principles." Id., at 209. And, in his unmistakable voice, Justice Scalia exhorted that: "One of the evolutionary provisions that I abhor is New York Times v. Sullivan. . . . For the Supreme Court to say that the Constitution requires that, that’s not what the people understood when they ratified the First Amendment. Nobody thought that. Libel, even libel of public figures, was permitted, was sanctioned by the First Amendment. Where did that come from? Who told—who told Earl Warren and the Supreme Court that what had been accepted libel law for a couple of hundred years was no longer?" Charlie Rose, Antonin Scalia Interview (Nov. 27, 2012)

The Kagan book review was referenced or quoted nine times in the Petitioner's brief. In that brief, the Petitioner argues that the two main reasons for granting the writ are:

  1. "Extending Sullivan’s 'Actual Malice' Standard Beyond Public Official Defamation Plaintiffs Is Inconsistent With The Original Understanding and Meaning of the First Amendment."
  2. "Transposing Sullivan’s 'Actual Malice' Standard From Public Official Defamation Plaintiffs Onto All Public Figures Runs Counter To Values The First Amendment Was Understood To Safeguard."

Mr. Katriel also argues that the "Court should grant the petition, overrule the First Amendment 'actual malice' requirement imposed by this Court on public figure defamation plaintiffs, and restore the original meaning of the First Amendment as it relates to such claims."

Respondents urge denial of cert

Elizabeth A. McNamara (counsel of record) with John M. Browning and Amanda B. Levine filed the Respondents' brief urging the Justices to deny cert in the case.

Elizabeth A. McNamara (DWT)

The main arguments advanced by the Respondents are:

  1. No Court Has Ever Called for Petitioner’s Narrow and Illogical Interpretation of Sullivan.
  2. Petitioner Cites No Authority that Actually Supports His Novel Proposal.
  3. Weakening the Actual Malice Standard Will Chill Political Debate.
  4. Petitioner Cannot Overcome Stare Decisis.
  5. This Case is a Poor Vehicle for the Court to Review the Actual Malice Standard.

Moreover, Respondents also argued that:

New York’s anti-SLAPP statute also requires dismissal of Petitioner’s defamation claim. That statute was amended, with retroactive effect, in order to impose a substantive requirement on libel defendants to establish actual malice in any case challenging a statement made “in connection with an issue of public interest.” N.Y. Civ. Rights Law § 76-a. See also Palin v. N.Y. Times Co., 2020 WL 7711593, at *3-4 (S.D.N.Y. Dec. 29, 2020). There is no dispute that the Book relates to a matter of public interest. . . .

Another reason to deny certiorari is Petitioner’s failure to raise the constitutional issues below, which deprived the Court of “a properly developed record on appeal.


Colorado baker Jack Phillips back in the news — another LGBTQ cake case 

This from an Associated Press news story by Colleen Slevin:

A Colorado baker who won a partial victory at the U.S. Supreme Court in 2018 for refusing to make a wedding cake for a same-sex couple violated the state's anti-discrimination law by refusing to make a birthday cake for a transgender woman, a state judge has ruled.

In the June 15 ruling, Denver District Judge A. Bruce Jones said Autumn Scardina was denied a cake that was blue on the outside and pink on the inside to celebrate her gender transition on her birthday because of her transgender status in violation of the law. While Jack Phillips said he could not make the cake because of its message, Jones said the case was about a refusal to sell a product, not compelled speech. . . .

The group representing Phillips, Alliance Defending Freedom, said Wednesday that it would appeal the ruling, which ordered him to pay a $500 fine. The maximum fine for each violation of Colorado's Anti-Discrimination Act is $500. But it was not clear from the ruling if the fine was for the two attempts that Scardina made to order the cake or just one.

"Radical activists and government officials are targeting artists like Jack because they won't promote messages on marriage and sexuality that violate their core convictions," the group's general counsel, Kristen Waggoner, said in a statement.

Note: Kristen Waggoner was the counsel in the Supreme Court who successfully argued Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018). She is also the counsel in the Washington floral designer case now pending before the Court: Arlene’s Flowers Inc. v. Washington.


Upcoming August Zoom event: Stone on Pentagon Papers and beyond

The Lives in the Law series:

[B]rings together noted figures in the world of law – lawyers, professors, journalists, and activists – to join in dialogue about their lives in the law along with how their work bears on some of the most controversial issues of our time. Ronald Collins, a retired law professor and the Library’s first Distinguished Lecturer, will host the series including conducting interviews and inviting dialogue. The series is meant for laypersons and specialists alike. Audience participation by way of questions and comments is welcome and encouraged.

Geoffrey R. Stone is the Edward H. Levi Distinguished Service Professor at the University of Chicago. Mr. Stone joined the faculty in 1973, after serving as a law clerk to Supreme Court Justice William J. Brennan, Jr. He later served as Dean of the Law School (1987-1994) and Provost of the University of Chicago (1994-2002). Stone is the author of many books on constitutional law, editor of two leading casebooks, and has written amicus briefs for constitutional scholars in a number of Supreme Court cases. Stone is an editor of the Supreme Court Review and chief editor of a twenty-five-volume series, of books on constitutional law. Stone was appointed by President Obama to serve on the President’s Review Group on Intelligence and Communications Technologies, which evaluated the government’s foreign intelligence surveillance programs in the wake of Edward Snowden’s leaks.

His most recent book, co-edited with Lee Bollinger, is National Security, Leaks and The Freedom of the Press: The Pentagon Papers Fifty Years On, a deeply informed, thoughtful, and often surprising examination of who has First Amendment rights to disclose, to obtain, or to publish classified information relating to the national security of the United States.

Prof. Geoffrey Stone (University of Chicago)

Ronald Collins is the former Harold S. Shefelman Scholar at the University of Washington Law School. He served as a Supreme Court fellow for Chief Justice Warren Burger. He is the editor of the weekly blog First Amendment News and is on the editorial board of SCOTUSblog. He is also the co-chair of The First Amendment Salons and the co-director of the History Book Festival. He is the author of some dozen books on everything from artificial intelligence and free speech to campaign finance law, and on individuals including Justice Holmes, Machiavelli, comedian Lenny Bruce, and poet Lawrence Ferlinghetti.

We invite you to support the author by purchasing a copy of the book from our local independent bookstore, Browseabout Books, by clicking HERE. Call-in orders are accepted or you can stop by the store to purchase a copy. For store hours, please visit their website. Each copy purchased comes with a signed archival bookplate.

Register here (scroll to the bottom, it's free).

Coming soon: Book by Ross on 'Right to Lie'

In A Right to Lie?, legal scholar Catherine J. Ross addresses the urgent issue of whether the nation's highest officers, including the president, have a right to lie under the Speech Clause, no matter what damage their falsehoods cause. Does freedom of expression protect even factual falsehoods? If so, are lies by candidates and public officials protected? And is there a constitutional path, without violating the First Amendment, to stop a president whose persistent lies endanger our lives and our democracy?

Perhaps counter-intuitively, the general answer to each question is "yes." Drawing from dramatic court cases about defamers, proponents of birtherism, braggarts, and office holders, Ross reveals the almost insurmountable constitutional and practical obstacles to legal efforts to rein in public deception. She explains the rules that govern the treatment of lies, while also demonstrating the incalculable damage presidential mendacity may lead to, as revealed in President Trump's lies about the COVID-19 pandemic and the legitimacy of the 2020 election.

Falsehoods have been at issue in every presidential impeachment proceeding from Nixon to Trump. But, until now, no one has analyzed why public lies might be impeachable offenses, and whether the First Amendment would provide a defense. Noting that speech by public employees does not receive the same First Amendment protection as the speech of ordinary citizens, Ross proposes the constitutionally viable solution of treating presidents as public employees who work for the people. Charged with oversight of the Executive, Congress may—and should—put future presidents on notice that material lies to the public on substantial matters will be deemed a "high crime and misdemeanor" subject to censure and even impeachment. A Right to Lie? explains how this approach could work if the political will were in place.

New book on free speech and surveillance

Jillian C. York (EFF)

What is the impact of surveillance capitalism on our right to free speech? The Internet once promised to be a place of extraordinary freedom beyond the control of money or politics, but today corporations and platforms exercise more control over our ability to access information and share knowledge to a greater extent than any state. From the online calls to arms in the thick of the Arab Spring to the contemporary front line of misinformation, Jillian York charts the war over our digital rights. She looks at both how the big corporations have become unaccountable censors, and the devastating impact it has had on those who have been censored.

In Silicon Values, leading campaigner Jillian York, looks at how our rights have become increasingly undermined by the major corporation's desire to harvest our personal data and turn it into profit. She also looks at how governments have used the same technology to monitor citizens and threatened our ability to communicate. As a result our daily lives, and private thoughts, are being policed in an unprecedented manner. Who decides the difference between political debate and hate speech? How does this impact on our identity, our ability to create communities and to protest? Who regulates the censors? In response to this threat to our democracy, York proposes a user-powered movement against the platforms that demands change and a new form of ownership over our own data.


Forthcoming book

Weinstein on federal cyberstalking statute

Prof. James Weinstein (Arizona State University)



A. The All-Inclusive Approach v. The Democratic Self-Governance Model

B. Criticism of the All-Inclusive Approach



A. An Elaboration and Defense of the Democratic Self-Governance Model

B. The Democratic Self-Governance Model and § 2261A(2)(B)

C. Section 2261A(2)(B) Caselaw

1. Prosecutions for Speech on Matters of Public Concern

2. Prosecutions of Speech on Matters of Private Concern



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