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.files.wordpress.com/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.