Speech, Silence, and Structure Jeffrey Steven Gordon Submitted in partial fulfillment of the requirements for the degree of Doctor of the Science of Law in the School of Law COLUMBIA UNIVERSITY 2019 Published as: Silencing State Courts 27 William & Mary Bill of Rights Journal 1 (2018) Silence for Sale 71 Alabama Law Review __ (forthcoming 2019) © 2019 Jeffrey Steven Gordon All rights reserved ABSTRACT Speech, Silence, and Structure Jeffrey Steven Gordon The three Articles that comprise this Dissertation explore how free expression and judicial federalism regulate hurtful speech and promised silence. The Articles tackle torts and free speech, contracts and free speech, and a comparative variation on those two themes. Judicial federalism threads all three Articles. The first Article, Silencing State Courts, argues that the current mode of enforcing the First Amendment against state common law speech torts fails to promote cooperative judicial federalism. Second, Silence for Sale argues that state courts should free themselves from constitutional straitjackets and recognize a robust public policy of free expression that voids some nondisclosure agreements. Finally, Comparative Judicial Federalism argues that the strength of a federal free speech guarantee varies with a country’s particular species of judicial federalism. By comparing free speech and judicial federalism in the United States and Australia, it argues that Australia’s judicial federalism augments its implied freedom of political communication. TABLE OF CONTENTS List of Charts. .ii Acknowledgments. .iii Dedication . iv Introduction . 1 Silencing State Courts . 14 Silence for Sale . 73 Comparative Judicial Federalism . 157 i LIST OF CHARTS Figure 1: Frequency of Free Speech Phrases . 135 ii ACKNOWLEDGMENTS It seems too fleeting, in these acknowledgments, to say that I am deeply grateful to Vince Blasi, Jessica Bulman-Pozen, Tom Merrill, and particularly Henry Monaghan. I hope the Dissertation stands as a (slightly) more permanent tribute in partial repayment of a profound intellectual debt. Thanks are due to my friends and colleagues for their patient guidance: Claire Debucquois, Madhav Khosla, Steve Koh, Yael Lifshitz, Ryan Liss, Matt Shapiro, and Emily Stolzenberg. I hope for decades of friendship and collaboration. My heart is most grateful for my family, especially my new wife, ever the phœnix to my turtle-dove. iii For my Mother and Grandmother iv SPEECH, SILENCE, AND STRUCTURE Introduction The three Articles that comprise this Dissertation explore how free expression and judicial federalism regulate hurtful speech and promised silence. The Articles tackle torts and free speech, contracts and free speech, and a comparative variation on those two themes. Judicial federalism threads all three Articles. The first Article, Silenc- ing State Courts, argues that the current mode of enforcing the First Amendment against state common law speech torts fails to promote cooperative judicial federalism. Second, Silence for Sale argues that state courts should free themselves from constitutional straitjackets and recognize a robust public policy of free expression that voids some nondisclosure agreements (NDAs). Finally, Comparative Judicial Federalism argues that the strength of a federal free speech guarantee varies with a country’s particular species of judicial federalism. By comparing free speech and judicial federalism in the United States and Australia, it argues that Australia’s judicial federalism augments its implied freedom of political communication. In a flash of inspired error, Justice Thomas very recently en- couraged the Supreme Court to reconsider New York Times Co. v. Sullivan.1 He joined the Court in denying certiorari to the plaintiff, Kathy McKee, after the First Circuit had affirmed the dismissal of her defamation lawsuit against Bill Cosby on Sullivan-related grounds.2 Justice Thomas raised eyebrows by condemning Sullivan and its progeny as “policy-driven decisions masquerading as constitutional law.”3 First, Justice Thomas thought each state “perfectly capable of striking an acceptable balance” between free speech and individual 1376 U.S. 254 (1964). 2McKee v. Cosby, 139 S. Ct. 675 (2019) (Thomas, J., concurring in denial of certiorari). 3Id. at 376. 1 SPEECH, SILENCE, AND STRUCTURE reputation.4 Second, Sullivan wrongly “displace[d] vast swaths of state defamation law.”5 Finally, Sullivan should have been decided on a much narrower ground.6 Justice Thomas’s opinion illustrates many of the themes of the Dissertation. In this Introduction, I will return to it to explain why it is deeply misguided. Speech that Hurts: Silencing State Courts Silencing State Courts centers on the First Amendment’s protection of speech that would otherwise be tortious under state common law. It argues that there are two paradigms of First Amendment enforcement against state speech torts, represented by the venerable Sullivan and the more recent Snyder v. Phelps.7 In Sullivan, the elected police commissioner of Montgomery, Alabama, sued the New York Times and four individuals for libel. The alleged libel, which contained trivial errors of fact, criticized the conduct of the Montgomery police during the Civil Rights Movement, but did not name the plaintiff himself. In an opinion the importance of which is difficult to overstate, Justice Brennan held that a public official cannot “recover damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”8 In Snyder, the father of a fallen Marine sued members of the fundamentalist Westboro Baptist Church, who had picketed his son’s funeral, for intentional infliction of emotional distress (IIED), intrusion upon seclusion, and civil conspiracy. Chief Justice Roberts, in an opinion joined by all but Justice Alito, held that nonviolent speech in a public place on a matter of public concern is protected from civil damages. The First Amendment defense to state speech torts “turns largely on whether that speech is of public or private concern.”9 4Id. at 682. The law blogs lit up in protest. Indeed, if Sullivan proves anything at all, it is that sometimes the states just can’t be trusted to strike an acceptable balance between speech and reputation. 5Id. at 680. 6Id. at 677. 7562 U.S. 443 (2011). 8New York Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964). 9Snyder v. Phelps, 562 U.S. at 451. 2 SPEECH, SILENCE, AND STRUCTURE This Article attempts to drive a methodological wedge between Sullivan and Snyder. Scholars lump Sullivan and Snyder together,10 but in fact they are paradigmatically different. Sullivan’s paradigm is the common law. Justice Brennan’s opinion adopted the internal point of view towards Alabama’s common law. It accepted, so far as the Free Speech Clause permitted, the state law of libel as a guide for conduct. Indeed, Sullivan settled a longstanding common law debate over the existence of a conditional privilege in defamation for criticism of public officials or candidates for public office. Silencing State Courts excavates that debate as it played out at the American Law Institute’s 1937 annual meeting discussing a tentative draft of the first torts Restatement.11 A Kansas judge, who had written the leading opinion for the conditional privilege,12 squared off against Learned Hand, who ultimately prevailed in having the conditional privilege struck from the draft. But the Kansas approach carried the day in Sullivan nearly three decades later. Justice Brennan fashioned the federal rule out of materials supplied by state common law, citing the Kansas opinion extensively.13 This remade the common law of libel, but only by injecting a discrete federal element into the state cause of action. Snyder, by contrast, did not engage with Maryland common law. The nature of IIED and the interests it protects were barely relevant and mentioned only in passing. The intrusion upon seclusion claim received even less attention. Instead, the Court framed the question presented and its holding generally in terms of “tort liability” and im- posed a blanket FirstAmendment “defense in state tort suits, including 10See, e.g., Kenneth S. Abraham & G. Edward White, The Puzzle of the Dignitary Torts, 104 �������������� L. R. (forthcoming 2019) (manuscript at 53);JohnC.P. Goldberg & Benjamin C. Zipursky, The Supreme Court’s Stealth Return to the Common Law of Torts, 65 DP L. R. 433, 437–43 (2016); David S. Han, Rethinking Speech-Tort Remedies, 2014 W. L. R. 1135, 1175; Nathan B. Oman & Jason M. Solomon, The Supreme Court’s Theory of Private Law, 62 D L. J. 1109, 1162–63 (2013); Cristina Carmody Tilley, Tort, Speech, and the Dubious Alchemy of State Action, 17 U. P. J. C. L. 1117, 1157 (2015). 11Proceedings of 1937 Annual Meeting, 14 A. L. I. P. 2, 135–57 (1937). 12Coleman v. MacLennan, 98 P. 281 (Kan. 1908). 13New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964) (citing Coleman v. MacLennan, 98 P. 281 (Kan. 1908)). 3 SPEECH, SILENCE, AND STRUCTURE suits for intentional infliction of emotional distress.”14 In an analysis of the five significant opinions applying Snyder,15 Silencing State Courts shows that Snyder strong-arms state courts into preempting all torts that apply to speech of public concern. These courts engage in backwards avoidance: they routinely avoid a mine-run private law issue by deciding a significant First Amendment question. Even before discovery, state courts eliminate speech tort claims on First Amendment grounds. Once the First Amendment shows up, these lawsuits do not need developed factual records. Tort plaintiffs have no opportunity to fully vindicate their claims. Nonviolent speech in public view on a matter of public concern is immune to civil liability. Silencing State Courts contends that Sullivan’s model is better than Snyder’s because it promotes cooperative judicial federalism. Equal dialogue between the federal and state judiciaries is valuable, and flourishes when state rights of action embed discrete federal is- sues (and vice versa).