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Academic highlight: Internal memos of Greenmoss case reveal doubts about Sullivan ruling

Lee Levine and Stephen Wermiel’s account of the internal history of the Supreme Court’s decision in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. convincingly demonstrates the utility of the papers of retired Justices in facilitating a painstaking reconstruction of the Court’s deliberations.  — Scott L. Nelson

Even among those who practice or teach First Amendment law, Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985) is not typically a case that receives much extended attention.  Though the vote was five to four, this erroneous credit-rating defamation case has often been seen as little more that a minor refinement of the Court’s holding in Gertz v. Robert Welch (1974), a far more important First Amendment case.  A new article in the Washington Law Review, however, reveals that the Greenmoss case is more significant than most think, not for its formal holding but rather for the internal doubts some of the Justices harbored between 1983 and 1985 concerning the soundness of the rule announced in New York Times v. Sullivan (1964). Those doubts, gleaned from many heretofore unseen memos and other Burger Court documents, are ably set out and analyzed in The Landmark that Wasn’t: A First Amendment Play in Five Acts by Lee Levine and Stephen Wermiel (The referenced Court documents are actually posted on the Washington Law Review’s website.)

The authors of this one-hundred-page case study are well suited for their task.  Lee Levine is a noted media and First Amendment lawyer and a partner in the firm of Levine, Sullivan, Koch and Schulz.  Stephen Wermiel is Fellow in Law and Government at American University Washington College of Law and co-author with Seth Stern of Justice Brennan: Liberal Champion (2010), the seminal work on Brennan just reissued in paperback by the University Press of Kansas.

Here is how the authors begin the summary of their article: “Drawing heavily on heretofore unpublished internal papers from the chambers of Justice William Brennan and other Justices, this Article reveals how the 1964 landmark decision in New York Times Co. v. Sullivan was once in serious jeopardy of being overruled.” In other words, some of the bounty of internal papers that went unused in the Brennan biography was tapped to provide the backdrop for this article on the Greenmoss case. 

By that measure, the authors “describe and analyze: (1) how and to what extent the holdings in Sullivan and Gertz . . . came to be reconsidered; (2) how the nature of the expression at issue in Greenmoss Builders factored into the examination of this defamation case and changed the way the First Amendment limits the common law of defamation; (3) how the members of the Burger Court considered the question of the media versus non-media status of a defendant in a defamation case; (4) how the Justices grappled with the question of the legitimacy under the First Amendment of presumed and punitive damages awards in defamation actions; (5) how the issue of the difference between private speech and public speech came to take on constitutional significance; (6) whether the Court should reconsider the balance it struck in Sullivan between the public’s interest in being fully informed about public officials and public affairs and the competing interest of those who have been defamed in vindicating their reputation; and (7) how all of this ultimately influenced and determined the outcome in Greenmoss Builders.”

In the process of offering their revelations, Levine and Wermiel divulge and then evaluate the import of the strikingly candid and sometimes surprising private thoughts of Justices William Brennan, Lewis Powell, Byron White, Sandra Day O’Connor, William Rehnquist, John Paul Stevens, and Chief Justice Warren Burger, among others.  We see their analytical volleying back and forth, their strategic wrangling for votes, and even the input of the law clerks as the reason and result of the case hang in the balance.  It all makes for a rare, realistic, and highly informative glimpse into the internal workings of the Court.

James Wendell, the Editor-in-Chief of the Washington Law Review, invited responses from three former clerks to the Justices, one of whom served while the Greenmoss case was being decided.  Those clerks and responders are: Scott L. Nelson (now with the Public Citizen Litigation Group, then a law clerk to Justice White while Greenmoss was under consideration) and Paul M. Smith (now with Jenner and Block, former law clerk to Justice Powell). Professor Robert M. O’Neil (emeritus professor and president, University of Virginia and a law clerk to Justice Brennan in 1962) also offers his views on the subject while noting that “[t]he degree of access to certain of the Justices’ personal papers—especially those of Justice Brennan, including his Term notebooks and comments—have already added immeasurably to our understanding, extending far beyond the immediate context of Greenmoss Builders.  What readers have now gained is a genuine judicial treasure trove, which simply happens to focus on a single case but extends far more broadly in time and space. Thus, if nothing else, the revival—indeed essentially the discovery—of Greenmoss Builders has measurably enhanced First Amendment scholarship.”

The Levine and Wermiel article will provide lawyers, jurists, and scholars with much to think about as the fiftieth anniversary of New York Times v. Sullivan approaches.  On that score, you can also expect a book from Levine and Wermiel on that very subject.

In the interests of full disclosure, Professor Collins recruited the article herein profiled for publication in his school’s Law Review.

Recommended Citation: Ron Collins, Academic highlight: Internal memos of Greenmoss case reveal doubts about Sullivan ruling, SCOTUSblog (Apr. 4, 2013, 10:04 AM),