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New York Times v. Sullivan, 376 U.S. 254 (1964)
Curtis Publishing Co. v. Butts, and Associated Press v. Walker, 388 U.S. 130 (1967)
Time, Inc. v. Firestone, 424 U.S. 448 (1976)
Rosenbloom v. Metromedia, Inc., 403 U. s. 29 (1971)
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)
What we're looking for here is the thread that connects these cases. Defamation and libel laws are designed to protect individual reputations and privacy against unwarranted and malicious invasions through speech and print. But the First Amendment protects freedoms of speech and press in a way that may supercede defamation and libel laws if the public
interest in freedom of expression outweighs individual privacy rights.
Note Justice William O. Douglas's dissent in Gertz arguing that the First Amendment bars all libel suits "for public discussion of public issues."
Now turn to Oprah's Texas case. What does the Texas "Veggie" law state? How does it bear on the questions raised in the cases given above? Oprah is a public figure. A private litigant is suing her under the state libel statute. Her attorneys say that First Amendment issues are involved although that is not their first line of defense. How would you argue the case for Oprah, for the plaintiff, on the basis of the precedents established above?
The relevant Texas law follows.
Sec. 96.001. Definition.
In this chapter, "perishable food product" means a food product of agriculture or aquaculture that is sold or distributed in a form that will perish or decay beyond marketability within a limited period of time.
Added by Acts 1995, 74th Leg., ch. 80, Sec. 1, eff. Sept. 1, 1995.
Sec. 96.002. Liability.
(a) A person is liable as provided by Subsection (b) if:
(1) the person disseminates in any manner information relating to a perishable food product to the public;
(2) the person knows the information is false; and
(3) the information states or implies that the perishable food product is not safe for consumption by the public.
(b) A person who is liable under Subsection (a) is liable to the producer of the perishable food product for damages and any other appropriate relief arising from the person's dissemination of the information.
Added by Acts 1995, 74th Leg., ch. 80, Sec. 1, eff. Sept. 1, 1995.
Sec. 96.003. Proof.
In determining if information is false, the trier of fact shall consider whether the information was based on reasonable and reliable scientific inquiry, facts, or data.
Added by Acts 1995, 74th Leg., ch. 80, Sec. 1, eff. Sept. 1, 1995.
s Sec. 96.004. Certain Marketing or Labeling Excluded.
A person is not liable under this chapter for marketing or labeling any agricultural product in a manner that indicates that the product:
(1) was grown or produced by using or not using a chemical or drug;
(2) was organically grown; or
(3) was grown without the use of any synthetic additive.
Added by Acts 1995, 74th Leg., ch. 80, Sec. 1, eff. Sept. 1, 1995.
Morrison v. Olson, 487 U.S. 654 (1988)
Bowsher v. Synar, 478 U.S. 714 (1986)
Wiener V. United States, 357 U.S. 349 (1958)
Humphrey's Executor v. United States, 295 U.S. 602 (1935)
Myers v. United States, 272 U.S. 52 (1926)
What we are concerned with here is congressional encroachment upon the
President. What are the constitutional limits to congressional interference
with the President's appointive and removal powers?
Compare Sandra Day O'Connor's approach for the Court in Commodity Futures Trading Commission v. Schor, 478 U.S. 833 (1986), to the above cases and particularly Scalia's dissent in Morrison v. Olson.
Clinton v. Jones (1997)
Nixon v. Fitzgerald, 457 U.S 731 (1982)
United States v. Nixon, 418 U.S. 683 (Farber, p. 955)
Mississippi v. Johnson, 4 Wallace 475 (1867)
United States v. Burr, 25 F. Cas. 30 (1807)
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971)
Butz v. Economou, 438 U.S. 478 (1978)
Berkovitz v. United States, 486 U.S. 531 (1988)
If you have time refresh your understanding of the Slaughterhouse Cases (1873). Go to the web site and pull it up under historic cases or using the Find law citation method.
At this point let's go to Lochner v. New York and Skinner v. Oklahoma. Briefly note Buck v. Bell.
Next we will turn to the Frankfurter-Black "debate" in Adamson v. California. Then go to Harlan's dissent in Poe v. Ullman.
Finally we will take up Mapp v. Ohio (note how it changed Wolf v. Colorado [1949] ) and Griswold v. Connecticut.
That's it for monday. You have already covered most of these cases in your assignment for last week.
Copyright 1998 The New York Times Company
-------------------------------------------------------------------- By LAURA MANSNERUS
A Vermonter who had lived for a while in a back-to-nature community, Laura Kross was called to give a deposition when the federal government sued to take over the property on the grounds that people were growing marijuana there. Ms. Kross lied; asked whether she had seen residents smoking marijuana on the property, she said, "Uh-uh."
For that, Ms. Kross was indicted, tried, convicted and sentenced. In recalling the case, Gregory Waples, an assistant U.S. attorney in Vermont, said Ms. Kross had been prosecuted "because she committed perjury."
So, yes, it happens. Lying in a civil case is perjury, and it gets prosecuted, though rarely.
Some of President Clinton's supporters argue that the independent counsel, Kenneth Starr, is using his investigation to criminalize conduct in a separate civil matter, namely the Paula Jones lawsuit. But legal experts are pointing out that lying in a lawsuit has always been not just criminal but a deception for which some people go to jail.
"I've been distressed by the number of former prosecutors who have gotten on TV and said it doesn't count," said Richard Underwood, a law professor at the University of Kentucky who has written extensively on perjury prosecutions.
Stephen Gillers of New York University Law School said: "Using phrases like 'virtually never' says to the public that the likelihood of getting charged with perjury in civil cases is like getting struck by lightning. You don't have to worry about it. That's the wrong message, factually wrong and morally wrong."
The issue in Starr's investigation is not just whether Monica Lewinsky or Clinton lied -- Lewinsky in an affidavit and Clinton in a deposition 10 days later -- in denying they had a sexual affair. Starr is also investigating possible subornation of perjury, obstruction of justice and other federal crimes in connection with the Jones litigation.
Most serious, probably, are reports that Lewinsky played some role in trying to influence other potential witnesses in the Jones case, that she got help in finding a job, possibly in return for her silence, and that she returned items -- said to be gifts from Clinton -- to the White House after they were subpoenaed.
"The objective of all these statutes is to punish people who keep the courts from getting reliable information," Gillers said. "It could be by perjury, by suborning perjury, by encouraging a witness to leave the jurisdiction or encouraging a witness to get rid of objects that might be subpoenaed."
In investigations involving this broader range of laws, prosecutions are not so uncommon: Two former executives of Texaco Inc., for example, were indicted last year for obstruction of justice in connection with documents requested by plaintiffs in a race discrimination suit. And in 1996 a former county prosecutor in New Jersey, Nicholas Bissell, was convicted of perjury, one of many fraud and misconduct charges, for making false statements in a civil suit in which he was a defendant.
Nonetheless, legal experts agree that in ordinary civil suits, lying is rampant and prosecution for lying is rare.
"There's perjury going on in every civil case in depositions, far more than in criminal cases," said Joel Cohen, a Manhattan lawyer who has written on the issue. And getting prosecutors to act on it, he added, is all but impossible.
"They say, 'I'm not a collection agent for you,"' Cohen said.
"Another thing a prosecutor would not do," he said, referring to Starr's impact on the Jones suit, is try to help a litigant in efforts to harm someone politically.
Given the huge practical problems and limited resources that prosecutors have in bringing such cases, perhaps the best the court system can do is pursue the occasional well-chosen perjury indictment for its deterrent effect.
"What you'd like is not for prosecutors to go after everything but for people to think they do," said William Stuntz, a University of Virginia law professor. "It's good if people are nervous when they raise their right hand."
Waples, the federal prosecutor in Vermont, said that if his office received a complaint about perjury in a deposition, he would not treat it less seriously just because it concerned a civil case. But he also said that in 20 years as a prosecutor, he had never received such a complaint. The Kross case, he said, was the only perjury case involving a civil suit that he had ever handled, and Ms. Kross' prosecution stemmed from a suit his office was already handling.
Even more rare is a criminal investigation, like Starr's, of possible perjury in a civil case that has not been concluded.
Writing in the current issue of The New York Review of Books, Lawrence Walsh, who was the independent counsel in the Iran-contra investigation, observed: "In 60 years of practice, I have never known this to happen. Most civil lawsuits begin with exaggerated allegations by the parties, which are narrowed and corrected as discovery and depositions proceed."
Finally, if there is any matter that invites lies and discourages prosecutions for lying, it is sex.
If the conduct at issue is adultery, said Anne Coughlin, a University of Virginia law professor, "it's a lie by definition." And given the "implicit adulterous agreement" that both parties will cover it up, she said, "it might be difficult to determine whether conversations about hiding the affair were just part of that ordinary agreement or whether these were special conversations about trying to obstruct a legal case."
Ideally, said Stuntz, such concerns should not limit prosecutors. "The real mistake a lot of folks have made," he said, "is in leaping to the conclusion that because they're rare, that must mean that we as a society have decided that this is not serious misbehavior.
"There's a much bigger reason, and that is that proving guilt is real hard. It's real costly, as Kenneth Starr is finding out. Prosecutors do not go after high cost prosecutions unless it's a very, very big deal."
Nevertheless, in cases of simple perjury, the prosecutions have arisen from some not very big deals. In the handful of published opinions over the last decade that involved criminal sanctions for perjury in civil suits, those prosecuted have included a plaintiff in a sex discrimination case who lied in a deposition about how she had calculated income she reported in her job application, and two police officers, also plaintiffs in a job discrimination suit, who lied about whether they had falsely called in sick.
Divorce cases, which lawyers agree are rife with lies, have drawn virtually no prosecutorial interest. There was, however, the case of Nellie O. Browne of Broome County, N.Y., prosecuted 54 years ago for a false affidavit in a divorce that was not even her own.
Apparently trying to help the wife in the case, she arranged for a young woman to take a job as a maid in her friend's house "for purposes," the court said, "of being observed in a compromising position" with the husband. Though the scheme was intended to manufacture evidence, Ms. Browne swore in the affidavit that she had not engaged in any "collusive practices" in connection with the divorce action. Her indictment was upheld.
Copyright 1998 The New York Times Company
(1) Electoral Apportionment First we will take up Baker v. Carr and discuss the arguments of Brennan and Frankfurter. Contrast Frankfurter's opinion in Colegrove v. Green and the other opinions in Colegrove that constituted a majority opinion but not a majority decision As background consult Luther v. Borden and refresh your knowledge of the political question doctrine. Pull up Abrams v. United States on Findlaw or an equivalent web site and contrast it with Shaw v. Reno which is in your text supplement. Does the Court have a more appropriate activist role in reviewing racial gerrymandering than simple malapportionment cases? How would you apply the Carolene Products footnote here?