The surprise settlement of the 14-year-old libel suit that Dan Boyce and his family filed against Attorney General Roy Cooper and some of his campaign staffers is mostly, but not entirely, good news.

            It’s certainly good news for the parties, their lawyers and the judges and administrators of North Carolina’s court system, all of whom have devoted far too much time and energy to a case that never should have been filed or that should have been dismissed or settled a long time ago. The settlement spares everyone involved of the uncertainty and stress of one or more trials and who knows how many ensuing appeals.

            It’s especially good news for the plaintiffs, who got something from Cooper they never could have gotten from the courts: an apology, albeit of the kind that my mother, who spoke primarily in Southern aphorisms and metaphors, might have called “left-handed” or “a pretty sorry ‘sorry.’” No matter how you characterize it, the Boyces and the Isleys can crow about it if they want to, and some of them surely will.

            It’s also particularly good news for Attorney General Cooper, because it defuses a potentially explosive mine from the road to the 2016 gubernatorial election and enhances the likelihood that he will be able to pre-empt the field of potential Democratic candidates.

            It’s bad news for people for whom fiercely contested courtroom battles are a favorite form of free entertainment. A trial would have featured some of North Carolina’s most skilled, experienced and – particularly in the case of Dan Boyce’s father, Eugene Boyce – colorful attorneys going toe-to-toe over complex issues of First Amendment law.

            Finally, the settlement also is bad news for the state of libel law in North Carolina, because it forever forecloses any opportunity for the North Carolina Supreme Court to repudiate and correct an egregiously wrong decision by a panel of the state’s Court of Appeals in 2002. That decision, which misinterpreted and misapplied well-settled principles of North Carolina defamation law, overruled a trial judge’s dismissal of the Boyce v. Cooper case and set it on the tortuous, expensive and needless journey that finally ended with the unexpected settlement. It also injected uncertainty and confusion into the field of North Carolina libel law, which already was arcane and complex and did not need additional the additional aggravation provided by the panel’s wrong-headed opinion. Despite widespread criticism of the decision at the time, the state’s highest court declined to review and correct it then, and has now lost forever the chance to do so.   Thus, as I wrote ten years ago, in the North Carolina Law Review, the Court of Appeals’ opinion

. . . promises to become a peculiarly dangerous specimen of legal jetsam, cast adrift on the sea of the law and presenting serious hazards for judges and litigants who attempt to navigate the already confounding currents of North Carolina defamation law.

Barring an unlikely “courthouse steps” settlement or other unforeseeable development, it appears that the libel suit spawned by the 2000 election for North Carolina’s Attorney General – Boyce & Isley, et al. v. Cooper — will be going to a jury trial on April 28 after almost 14 years of legal wrangling.

As the Supreme Court explained in 1992, the type of speech at issue in the suit — a televised campaign ad — is the quintessential example of the category of speech that enjoys the highest level of First Amendment protection:

“Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.” Mills v. Alabama, 384 U.S., at 218, 86 S. Ct., at 1437. “For speech concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana, 379 U.S. 64, 74–75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964).  Accordingly, this Court has recognized that “the First Amendment ‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.” Eu v. San Francisco Cty. Democratic Central Comm., 489 U.S. 214, 223, 109 S.Ct. 1013, 1020, 103 L.Ed.2d 271 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 625, 28 L.Ed.2d 35 (1971)).

Burson v. Freeman, 504 U.S. 191, 196, 112 S. Ct. 1846, 1850, 119 L. Ed. 2d 5 (1992).

In my view, which I expressed more than 10 years ago in a North Carolina Law Review article, our courts should have dismissed the case at the outset in reliance both on this fundamental tenet of Constitutional law and on fundamental, well-settled principles of North Carolina libel law.   (You can read the copyrighted law review article here: https://aboutthefirstamendment.com/wp-content/uploads/2014/04/boyce-v-isley-nc-l-rev-article.pdf)  Instead they allowed the case to proceed, thereby engendering years of wasteful and unnecessary litigation and appeals, as well as widespread confusion and misunderstanding about North Carolina defamation law.  So now, long after the campaign that fomented it has faded into history, the participants stand on the verge of a jury trial that never should have occurred – and which is likely to generate further appeals and litigation, regardless of its outcome.

To complicate an unnecessarily complicated case even further, the trial that is scheduled to begin later this month will involve only part of the case. One of the many oddities of defamation law is that unlike other torts, both the degree of fault that a libel plaintiff must prove, and the evidentiary standard by which he or she must prove it, vary according to the nature of the publication and the status of the plaintiff.   “In actions for defamation, the nature or status of the parties involved is a significant factor in determining the applicable legal standards.” Proffitt v. Greensboro News & Record, 91 N.C.App. 218, 221, 371 S.E.2d 292, 293 (1988).

In New York Times Co. v. Sullivan, the U. S. Supreme Court prohibited public officials from recovering for alleged defamatory statements relating to their official conduct without first proving that the statement was made with actual malice. 376 U.S. 254 (1964).  The Court defined actual malice as a statement made “with knowledge that it was false or with reckless disregard of whether it was false or not.” Id.  Later, in Curtis Publishing Co. v. Butts, the principle set forth in Sullivan was extended to “public figures.” 388 U.S. 130 (1967).  Public figures are categorized as involuntary public figures, general purpose public figures, and limited purpose public figures. Gaunt v. Pittaway, 139 N.C.App. 778, 785, 534 S.E.2d 660, 664 (2000) (citing Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)). “Under North Carolina law, an individual may become a limited purpose public figure by his purposeful activity amounting to a thrusting of his personality into the ‘vortex’ of an important public controversy.” Id. at 786, 534 S.E.2d at 665.

Because the appropriate evidentiary standards differ according to whether a plaintiff is a “public” or “private” figure, each plaintiff’s status is a threshold matter that the court must determine in advance of trial. In this case the trial judge’s decision was complicated by the fact that the suit was filed on behalf of five plaintiffs: Dan Boyce, who as a candidate for Attorney General unquestionably is a public figure, and four others whose status is less clear: Dan’s father Eugene Boyce; his sister Laura Boyce Isley; his brother-in-law Phillip Isley; and Boyce & Isley, LLP, the law firm where all four individuals practiced in 2000.   Last week the trial judge ruled that Eugene Boyce is a public figure and ordered the case severed.   Accordingly, the trial that is scheduled to commence on April 28 will involve only the claims asserted by Dan Boyce and his father; the claims of Phillip and Laura Isley, neither of whom was determined to be a public figure, are reserved for a second trial.

In order to persuade the judge that Eugene Boyce is a public figure the defendants had to overcome the formidable obstacles presented by the Supreme Court’s 1974 decision in Gertz v. Robert Welch, Inc. In Gertz, the Court held that an attorney was not a public figure even though he had sued the City of Chicago on behalf of a family whose child was shot and killed by a policeman; had “long been active in community and professional affairs;” had been an officer of local civic groups and professional organizations; and had published several books and articles on legal subjects. The Court determined that the lawyer had neither “achieved general fame or notoriety in the community” nor “thrust himself into the vortex” of a controversial public issue, and thus was a private figure for purposes of his libel suit.

Although the defense had argued vigorously that Gene Boyce was both a general purpose and a limited purpose public figure, the judge did not indicate clearly which type of public figure he deemed him to be. In any event, the plaintiffs did not put up a particularly strenuous opposition to the ruling; Mr. Knott told the court that it really didn’t matter, because they had plenty of evidence with which to prove “actual malice,” regardless of how many plaintiffs were classified as public figures. Moreover, anyone who has known and watched Gene Boyce over many years probably believes that he accepted the judge’s ruling with an unusual degree of equanimity because in his mind he IS a “public figure.”

The “public figure” trial, if it occurs, promises to be riveting political and legal theatre. In the starring roles are the parties, who clearly despise each other: Dan Boyce and his flamboyant and famous father Gene, as the plaintiffs, and gubernatorial hopeful Attorney General Roy Cooper, as the central defendant.   The supporting cast comprises some of North Carolina’s most prominent and seasoned lawyers.   Cooper’s lawyers include Alan Duncan, the current president of the North Carolina Bar Association, and his law partner Allison Van Laningham; together they successfully defended former U.S. Senator John Edwards on federal campaign corruption charges. They will be joined at the defense table by Jim Phillips, a former chair of the UNC Board of Governors, and two of his colleagues from the Brooks Pierce law firm, Eric David and Charles Coble. The plaintiffs’ case will be orchestrated by Gene Boyce himself, who will serve both as lawyer and witness, and by Joe Knott, a courtly, white-haired Wake County attorney who signed onto the plaintiffs’ team recently.    Presiding over the trial will be Osmond Smith, an experienced and unflappable Superior Court judge from Caswell County whose soft voice and imperturbable affect will present a welcome contrast to the argumentative and sometimes boisterous styles of the combatants.

Whatever its outcome, Boyce v. Cooper promises to be quite a show.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

U.S. Constitution, First Amendment

To most attorneys and others schooled in Constitutional law and history, “separation of church state” is a bedrock concept: although we may argue about what it means in a particular case, we accept it as an abstract but fundamental precept embodied in the First Amendment.   Some people who apparently view things more literally – including an occasional candidate for public office – question the very existence of the concept; they point out, correctly, that neither the First Amendment nor any other provision of the U.S. Constitution contains any of the words “church,” “state” or “separation.” See, e.g., http://www.hnn.us/article/132813

Let me say up front that in my view, the literalists’ point is specious; to argue that separation of church and state is an illegitimate doctrine because the First Amendment does not mention it specifically is akin to arguing that Great Britain is not required to acknowledge the existence of the United States of America because the Declaration of Independence did not alert King George III that it was to be the name of the new nation that the Colonists planned to form. To the contrary, I believe that “separation of church and state” is among our most legitimate Constitutional precepts, not only because the principal architects of the First Amendment – Thomas Jefferson and his close friend and ally James Madison – fought for the separation of church and state even before the Bill of Rights was adopted, but also because Jefferson himself explained the First Amendment’s establishment clause in those very terms.

Jefferson was a religious skeptic who was often accused during his lifetime of being an atheist. Historians often characterize him as a deist or Unitarian, but while his theology was very much Unitarian in spirit, the Unitarians were not formally organized into a sect until 1825, the year before his death. Nevertheless, Jefferson embraced the theology of Joseph Priestly, who is widely viewed as the founder of Unitarianism, and regularly attended Priestly’s church in Philadelphia when he was in the city.

Both Jefferson’s personal attitude toward religion and his formulation of the proper relationship between religion and government were grounded in the rationalist philosophy of the Enlightenment, especially the views of Francis Bacon, Isaac Newton and John Locke. The dominant spirit of the Enlightenment was skepticism toward all orthodoxy, unbridled enthusiasm for the pursuit of knowledge, and optimism that free inquiry would lead men to discern the truths inherent in the nature of the universe. Jefferson believed that an alliance between government and religion was unnatural, because religion is a private matter wholly dependent upon internal persuasions and personal conscience. Men and women, Jefferson said, are answerable for their religious beliefs only to God. In his Notes on Virginia he summed up his views in pithy language:

The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods or no god. It neither picks my pocket, nor breaks my leg.

Jefferson’s avowed disinterest in the religious views of his fellow men did not prevent his holding a lifelong, deep-seated antipathy toward the clergy — especially the Anglican clergy. His biographer Fawn Brodie attributes Jefferson’s hostility to preachers to his experiences at ages 14 and 15, when his tutor was James Maury, a self-righteous and bigoted Anglican priest who deprecated Presbyterians and Baptists as “dupes and deceivers,” and who considered Indians to be heathen barbarians. Whatever its source, Jefferson’s disdain for the clergy put destruction of the power of the Anglican Church at the top of his personal priorities. As Ms. Brodie says, “No other statesman of his time would match Jefferson in his hatred of the established faith.” She reports that in 1816, when he was 73, Jefferson wrote to a friend, “I am not afraid of the priests. They have tried upon me all their various batteries, of pious whining, hypocritical canting, lying and slandering, without being able to give me one moment of pain.”        Jefferson apparently expected that organized religion would die out and that everyone would become, at most, Unitarians. If so, he presumably was very disappointed when instead they became Baptists and Methodists and that after the Revolution, religion became stronger in the United States rather than weaker.

James Madison was much less forthcoming about his religious beliefs than his close friend Jefferson. He was reared as an Anglican, and his early childhood teachers, like Jefferson’s, were Anglican clergymen, who often supplemented their meager salaries in colonial times by tutoring the children of influential parishioners. According to his biographer Ralph Ketchum, “[d]own through his graduation from college every one of Madison’s teachers, as far as we know, was either a clergyman or a devoutly orthodox Christian layman.” From ages 11 to 16 Madison attended a boarding school run by Donald Robertson, a Scottish-born minister and schoolmaster. Then he studied for two years at home under the Revered Thomas Martin, an Anglican rector who lived in the Madison household as a “family teacher.” Martin, whose brother Alexander later served as governor and United States Senator in North Carolina, was from a Scots-Irish family and had graduated from the Presbyterian-dominated College of New Jersey (now Princeton) in 1762. His influence presumably was critical to Madison’s decision to attend Princeton, although Madison later wrote that he avoided William and Mary, the expected choice of the Virginia gentry, because “the climate at [Williamsburg] is regarded as unfavorable to the health of persons from the mountainous region.” Although Williamsburg was known then (and now) for its “noisome vapors,” the unsuitable climate at William and Mary also may have included the college’s reputation as a party school with lax academic standards.

Madison wrote far less about his religious views than his close friend Jefferson, perhaps because he was reserved and less inclined than Jefferson to pronounce judgments, or perhaps because his scholarly, analytical mind never settled firmly on a personal creed. Ralph Ketchum characterizes Madison as “a rather passive believer” who accepted many of the basic tenets of Christian thought, such as the infinite worth of the human soul and the idea that each person was responsible for cultivating a proper relationship with God. It is hardly surprising that the framework of Madison’s personal philosophy would rest on Christian bedrock, given that virtually all of his teachers were clergymen. Yet Ketchum says that shortly after graduating from Princeton “Madison seems simply to have dropped his interest in doctrinal questions, troubling, so far as we know, neither to reject nor to reaffirm his religious tenets thereafter.” “Though not inclined to religious speculations,” Ketchum says, “Madison adhered to a calm faith in a moral, orderly universe presided over by a God beyond the limited capacity of man to conceive or understand.”   “It seems clear,” Ketchum says, “that he never embraced fervently nor rejected utterly the Christian base of his education. He accepted its tenets generally and formed his outlook on life within its world view.” Whatever he believed, Madison neither disparaged the beliefs of others nor sought to impose his own on anyone else.

Although Madison was reticent about his own religious views, he was vocal, and even vociferous, in the cause of religious freedom from early adulthood to the end of his life. In a letter to his Princeton classmate William Bradford dated January, 1774, when Madison was 23, Madison lamented the prosecution of Baptist ministers in nearby Culpeper County:

That diabolical Hell-conceived principle of persecution rages among some,” he wrote, “and to their eternal infamy the clergy can furnish their quota of imps for such business. This vexes me the most of anything whatever. There are at this time in the adjacent county not less than 5 or 6 well-meaning men in [jail] for publishing their religious sentiments, which in the main are very orthodox. I have neither patience to hear talk or think of anything relative to this matter, for I have squabbled and scolded, abused and ridiculed so long about it, to so little purpose, that I am without common patience. So I leave you to pity me and pray for Liberty of Conscience to revive among us . . .”

Madison’s ardor can be traced directly to his experience at Princeton. Of Madison’s many Christian teachers, the most influential clearly was John Witherspoon, the Scottish-born Presbyterian minister who was president of the college. Although orthodox in his own beliefs, Witherspoon encouraged intellectual inquiry and defended every person’s “right to private judgment in matters of opinion.” Madison so admired Witherspoon that he stayed on in Princeton for six months after his graduation in order to study under him.

Jefferson and Madison apparently met in 1776 as fellow members of the Virginia House of Delegates.   As documented by their regular correspondence, much of which was written in their private code, they were lifelong friends and political allies thereafter. Their friendship, in which Madison’s quiet pragmatism and political skill both melded with and tempered Jefferson’s visionary outlook, also involved frequent visits back and forth between Jefferson’s home at Monticello and Madison’s family seat 23 miles away at Montpelier, in Orange County.

In 1776, the year he met Madison, Jefferson drafted two documentary pillars of the American historical canon: the Declaration of Independence and the Virginia Statute of Religious Liberty. Each includes rhetorical references that reflect Jefferson’s views about the relationship between God and government. In the former, Jefferson posited that the “the laws of Nature and of Nature’s God” entitled the American colonists to govern themselves and refers to inalienable rights having been endowed by the Creator. To Jefferson, “Nature’s God,” who is undeniably visible in the workings of the universe, gives man the freedom to choose his religious beliefs. This is the divinity whom deists of the time accepted—a God who created the world and is the final judge of man, but who does not intervene in the affairs of man. This God who gives man the freedom to believe or not to believe is also the God of the Christian sects.

The Virginia Statute for Religious Freedom, which Jefferson formally introduced in the Virginia Assembly in 1779, is the forerunner of the First Amendment’s establishment and free exercise clauses. Its first paragraph proclaims, in majestic language, that freedom of thought is a natural right.

I. Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishment or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was his Almighty power to do . . .

The second paragraph is the act itself, which states that no person can be compelled to attend any church or support it with his taxes. It says that an individual is free to worship as he pleases with no discrimination.

II. Be it enacted by the General Assembly, that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.

The third paragraph reflects Jefferson’s belief in the people’s right, through their elected assemblies, to change any law. Here, Jefferson states that this statute is not irrevocable because no law is (not even the Constitution). Future assemblies that choose to repeal or circumscribe the act do so at their own peril, because this is “an infringement of natural right.”

III. And though we well know that this assembly elected by the people for the ordinary purposes of legislation only, have no power to restrain the act of succeeding assemblies, constituted with powers equal to our own, and that therefore to declare this act to be irrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present, or to narrow its operation, such as would be an infringement of natural right.

Although passage of the Statute was blocked for several years by Assembly members who were friendly to the Anglican Church, the colony’s changing religious demographics – particularly the rapid growth of the Baptists and Methodists in the western part of the state — worked against them. As early as 1776 Baptists and Presbyterians submitted petitions (one of which contained almost 10,000 names) asking the Assembly to free them from “a long night of Ecclesiastical bondage.” They requested that “all Church establishments be pulled down, and every tax upon conscience and private judgment be abolished” in order that Virginia might become “an asylum for free inquiry, knowledge, and the virtuous of every denomination.”   At Madison’s urging, it was passed by the Virginia General Assembly on January 16, 1786 in the aftermath of the defeat of a proposal by Patrick Henry and other members to levy a tax for the support of Christian ministers. At the time, Jefferson was in Paris serving as minister to France, so Madison had the pleasure of writing to him that the bill had become law and had thereby “extinguished forever the ambitious hope of making laws for the human mind.”

1800. When Jefferson ran for President in 1800, many clergymen told their congregations that a vote for him was a vote against Christianity, and that if he were elected they would have to hide their Bibles in their wells. As a candidate, Jefferson refused to curry favor with the clergy, pointing out to Benjamin Rush that both the Congregationalist and Episcopal churches still entertained hopes of being named the established church of the United States. Each knew that his election “threatens abortion to their hopes,” he wrote, “and they believe rightly: for I have sworn upon the altar of God, eternal hostility against every form of tyranny over the mind of man.” (The personal oath that Jefferson described to Rush is now inscribed in the rotunda of his memorial in Washington, D.C.)

1801-1804. During his presidency Jefferson compiled a pamphlet entitled Syllabus of an Estimate on the Doctrines of Jesus, Compared with Those of Others, in which he characterized Jesus’ moral system as “the most perfect and sublime that has ever been taught by man” but made it plain that he did not accept Jesus as divine. In later life he compiled a personal, expurgated New Testament from which he excluded all references to the supernatural, including the Virgin Birth, the miracles and the Resurrection, leaving in only “the matter which is evidently his, and which is as easily distinguishable as diamonds in a dunghill.” The resulting pamphlet was published after his death as The Jefferson Bible.

In October of 1801 Jefferson received a letter from the Danbury Baptist Association in Connecticut complaining that because the Congregational Church was the “official” church of the State, “what religious privileges we enjoy, we enjoy as favors granted, and not as inalienable rights. “We are sensible,” they wrote, “that the President of the United States is not the National Legislator and also sensible that the national government cannot destroy the laws of each State, but our hopes are strong that the sentiment of our beloved President, which have had such genial effect already, like the radiant beams of the sun, will shine and prevail through all these States–and all the world–until hierarchy and tyranny be destroyed from the earth.”

Jefferson replied in a letter dated January 1, 1802. He expressed his agreement with the Baptists’ sentiments, saying:

Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature would “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church and State.

Jefferson’s grave is on the grounds of Monticello. He prescribed that its simple marker would credit him with the three achievements of which he was most proud: authorship of the Declaration of Independence and the Virginia Statute of Religious Freedom, and founder of the University of Virginia (which, by the way, initially had neither a chapel nor courses for the study of theology).