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Justice Black’s Last Opinion
“The Post,” Stephen Spielberg’s film that dramatizes Washington Post publisher Katherine Graham’s “bet the newspaper” decision to publish the Pentagon Papers while The New York Times was stymied by a federal court’s injunction, has brought renewed attention to the Supreme Court’s 6-3 decision that ultimately vindicated both newspapers’ actions. The movie pays brief but particular attention to Justice Hugo Black’s rhetorically vivid concurring opinion, in which he not only praised the newspapers for having the temerity to expose the government’s perfidy but also beautifully summarized, in just a few hundred words, the history and philosophical underpinnings of the First Amendment’s guaranty of freedom of the press. At the time, neither he nor anyone else knew that the opinion not only would be his most renowned, but also his last.
The most frequently quoted portion of Justice Black’s concurrence is this paragraph:
In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.
As it happened, one of Justice Black’s three law clerks during the 1970-71 Supreme Court term was my University of North Carolina undergraduate classmate, close friend, and long-time law partner Bob Spearman, who had attended the Yale Law School after spending two years at Oxford as a Rhodes Scholar. His fellow clerks were Robert B. McCaw from Virginia and John Harmon, a Statesville, N.C. native and Duke law grad who, like Bob, had been a Morehead Scholar at Chapel Hill.
When the Pentagon Papers case unfolded in June of 1971 I was out of the country serving in the U.S. Navy. As a self-identified “First Amendment junkie,” I was riveted by the drama, but I had no access to U.S. radio or television, so in those pre-internet days I monitored developments in the case by reading day-old editions of The New York Times and The Boston Globe flown in. Although I was delighted by the outcome, I was not steeped in either the underlying facts of the case or its procedural history.
After being discharged from the Navy early in 1973 I joined Sanford Cannon Adams & McCullough, the Raleigh law firm where Bob Spearman and I would practice law alongside each other for the next 15 years. Early on I acquired a copy of The Papers & the Papers, Sanford Ungar’s detailed history of the case. Ungar had worked quickly; his book was published less than a year after the Supreme Court’s decision and prior to either of the criminal trials in which the government attempted, unsuccessfully, to convict Daniel Ellsberg and Anthony Russo of having violated the Espionage Act by leaking the papers to the papers. (The first trial, in 1972, ended in a mistrial when it was disclosed that the government had wiretapped a conversation between one of the defendants and his lawyer. During the second trial, in 1973, the presiding judge, William Byrne, dismissed all charges after he learned that White House operatives G. Gordon Liddy and Howard Hunt had burglarized the offices of Ellsberg’s psychiatrist to obtain his files relating to Ellsberg.)
I shared The Papers & the Papers with Bob, who naturally took particular interest in Ungar’s account of the Supreme Court arguments and the Court’s decision. Professor Alexander Bickel, who had been Bob’s constitutional law professor at Yale, had argued the case for The New York Times. As Ungar reported, and as the transcript of the oral arguments clearly shows, Justice Potter Stewart pressed Bickel into conceding that the First Amendment’s prohibition against “prior restraints” on the press was not absolute. The transcript also shows that Justice Black expressed dismay that Bickel was apparently reading the First Amendment to mean that Congress could make some laws abridging freedom of the press. “That,” he said, “is a very strange argument for the Times to be making.” In an unpublished essay that he shared with me, Bob wrote that Justice Black thought “Bickel’s argument was not a sufficiently vigorous defense of a free press, and complained that the Times had not found a lawyer who really believed in the First Amendment.”
Bob also revealed a particularly interesting detail about Justice Black’s eloquent concurring opinion. The majority of it, he said, came about in the usual way: i.e., it was drafted, rewritten and polished by the law clerks based on guidance and direction from the justice. After the “final” draft was printed by the Court’s staff, the clerks drove it to Justice Black’s house in Alexandria, Virginia for his review and approval. After reading through it he took out his pen and, in the margin of the printed draft, wrote out in longhand the entire paragraph that is quoted above. Although no one could have known it at the time, his last acts as a justice of the Supreme Court were to handwrite his ringing defense of the press and to draw an arrow showing where he wanted the language inserted in the draft.
Bob Spearman died in early December of 2017 from a combination of dementia and Parkinson’s disease. After seeing “The Post,” I undertook to verify that what Bob had told me about Justice Black’s handiwork by recounting his story to John Harmon. Here is John’s response:
You have it right. Bob and Bob McCaw and I often laughed about the fact that the portions of Justice Black’s opinions that were quoted in the press inevitably were the portions that he wrote himself, in long hand, in the margins of drafts he was considering. Lest law clerks ever be tempted to elevate their own importance, we must remember that every word of every opinion signed by Justice Black was his and his alone regardless of who performed the task of putting those words on paper. Justice Black well understood that the wording of opinions was immensely important especially when defending fundamental constitutional rights. And no right was more fundamental to Justice Black than the First Amendment right to free speech. Yes, Hugh, you got it right. Those words were Justice Black’s, all those words.
Author’s Note: This article, like the previous one, was written in connection with the 50-year commencement reunion of the UNC Class of 1965. A slightly different version was published in the May/June 2015 issue of the “Carolina Alumni Review.”
Did you get your Commencement Bible?
Do you still have it? (We won’t ask if you have read it.)
Beginning with the commencement of 1842, UNC presented members of the graduating class with Bibles. According to John Sanders, former director of the Institute of Government, “The practice continued until the closing of the University in 1868, apparently was not resumed upon the reopening of the University in 1875, and was terminated formally by action of the faculty on June 1, 1877.” On the motion of the Reverend A.D. Betts, a Methodist minister and UNC trustee, the Board of Trustees ordered the practice resumed in 1880, and it was still the order of the day when we graduated 50 years ago. At our commencement everyone receiving a B.A. or B.S. degree was offered a choice of three bibles: the one version (the “King James”) for Protestants, another for Catholics, and an Old Testament edition for Jewish students. If you received one of the approximately 3,000 bibles distributed in connection with our commencement, you found in it signed by the Chancellor saying, “This Holy Bible is presented to you by your Alma Mater on the occasion of your graduation.”
Commencement bibles were free to the graduates. In 1971, Chancellor Ferebee Taylor responded to questions about the practice by appointing a “Subcommittee of Inquiry on the Distribution of Bibles to Graduates of the University of North Carolina at Chapel Hill” chaired by Professor Sanders. The subcommittee was asked to review the history of the practice; to determine whether State funds were used to defray the cost of buying and distributing the bibles, which was then around $18,000 a year; and make a recommendation as to whether their distribution should be continued. The subcommittee’s report that was submitted in March of 1972 concluded that
The way the University’s books are kept, one cannot trace the payment for the purchase pf Bibles or their distribution back to any particular fee or other University receipt. The collections from the general academic fee, state general fund appropriations, and other receipt all go into a fund from which the Bible purchases are made.
Based on the subcommittee’s conclusion that the practice, if challenged, would likely be found to violate the First Amendment’s “Establishment Clause,” the report urged the University not wait until some citizen sued and forced an end to the practice but instead should discontinue it voluntarily as legally insupportable. Legal considerations aside, the report also included this cogent observation:
However fitting the practice of giving Bibles to graduates in 1842 in the cultural setting of the time and place, we deem it not to be nearly so meaningful in this University today. We . . . do not conceive that a discontinuation of the practice would in any discernable way impair the moral and spiritual development of the graduates of the University. To the extent that the stimulation of such development is the University’s responsibility, our obligation must be met in the span of two to four years that the student spends on this campus; unmet then, it cannot be redeemed by mailing a five dollar Bible to his last known address.
The report recommended that the practice of giving Bibles to graduates at commencement be discontinued without fanfare, and it was.
Author’s Note: This article was written in connection with the 50-year reunion of the 1965 graduating class at the University of North Carolina at Chapel Hill.
When you look back over 50 years to your time at UNC, what shaped your life more – the courses you took and the books you read, or the people and events you encountered outside the classroom?
In my case, the answer is clear: I was privileged to have many great teachers at Chapel Hill, but I became a First Amendment lawyer because of Jesse Helms and the Speaker Ban Law.
I will never forget professors like O.B. Hardison, Andy Scott, Clifford Lyons, J. O. Bailey, Walter Spearman and Peter Walker, but my most important influences were people like UNC President Bill Friday, Chancellor William Aycock, Campus “Y” director Anne Queen and UNC alumnus McNeill Smith, all of whom I got to know well because of our shared antipathy toward the Speaker Ban Law.
Here’s my story.
When Dr. Martin Luther King, Jr. and other civil rights leaders organized anti-segregation boycotts and demonstrations in Birmingham, Alabama in May of 1963, T.E. “Bull” Connor, Birmingham’s Commissioner of Public Safety, responded by ordering police and firemen to turn police dogs and high-pressure fire hoses on the demonstrators, many of whom were children. The shocking images of the violent confrontations that television brought into my fraternity’s chapter room hit me in my gut. For me – and, I now know, for many other white southerners – those images caused me to think seriously for the first time about something that up until then I had more or less taken for granted: racial segregation.
I was not the only North Carolina student who was moved by the events in Birmingham. Galvanized by the images of youngsters fleeing from fire hoses and police dogs, students from Shaw University staged sit-ins at Raleigh theaters and restaurants, protested at the Sir Walter Hotel where most members of the General Assembly stayed during the legislative session, and swarmed over the grounds of the Governor’s Mansion while Governor Terry Sanford hosted the annual North Carolina Symphony Ball.
Although Governor Sanford defused the symphony protest by appearing on the south porch of the mansion and offering to meet with the protesters, some other prominent citizens reacted very differently. Jesse Helms, who was then an on-air editorialist for WRAL-TV, saw the protests as evidence of Communist influence, especially at colleges and universities. In June he praised the Ohio legislature for proposing a bill to restrict speakers at their universities, suggesting that it “should also provide a lesson for the rest of us.” Four days later, on the last day of the legislative session, the General Assembly leaders suspended the rules and rushed through what became known as “the Speaker Ban Law,” which prohibited the use of any state-supported college or university facilities by anyone who was a communist, who had advocated the overthrow of the U.S. or North Carolina constitutions, or who had pleaded the Fifth Amendment when questioned about subversive activities.
I wasn’t even aware of the law until shortly before I returned to Chapel Hill for my junior year, and even then it didn’t galvanize my attention like the great March on Washington, which occurred on August 28, or President Kennedy’s assassination on November 22. By the spring of 1964, however, the Speaker Ban was very much on my mind. Thanks to firm but measured opposition arguments advanced by Chancellor Aycock and President Friday, I had come to understand that the law posed a serious political and a philosophical threat to the University and the concept of academic freedom. I also saw it as a personal insult; did Jesse Helms and his allies really think that I and my fellow students were so naïve and gullible that we could not be permitted to hear a communist speaker, lest we enlist in the Red Army?
The Speaker Ban loomed like a cloud over our senior year at Chapel Hill. As co-editor of The Daily Tar Heel I wrote editorials decrying the law. More importantly, my position drew me into a wide and varied circle of students, faculty, administrators, alumni and others whose common goal was to remove the cloud from UNC’s academic reputation. The moral and intellectual leaders of the group were President Friday and Student Body President Bob Spearman. Anne Queen, who hosted frequent Sunday brunches at which the conversation was fueled by sherry and Bloody Mary’s, was our de facto social chairman; the regular attendees at her soirees included my hometown state senator, Ralph Scott; Joel Fleishman, Governor Sanford’s administrative assistant; UNC law professor Dan Pollitt; Duke law professor William Van Alstyne; and UNC alumnus Jim Exum, who was then practicing law in Greensboro.
In addition to exposing me to such heady conversation and company, the Speaker Ban also led, unexpectedly, to my long friendship with Charles Kuralt. We met when Charles, who had been editor of The Daily Tar Heel in 1954, came to Chapel Hill in the summer of 1964 to do a story about the law for “The CBS Evening News with Walter Cronkite” and we stayed in touch thereafter. Thanks to the Speaker Ban, my wife and I have fond memories of sitting in on the broadcast of “Sunday Morning” followed by gracious lunches with Charles afterward.
The Speaker Ban also led to my acquaintance with J. McNeill (“Mac”) Smith, the Greensboro lawyer and former DTH editor who, with Professors Pollitt and Van Alstyne, filed the federal lawsuit that eventually resulted in the Speaker Ban being declared unconstitutional. During 1963 and 1964 President Friday, Chancellor Aycock and others, including the Consolidated University’s Board of Trustees, had tried diligently, but unsuccessfully, to persuade the General Assembly to repeal or amend the law. By the spring of 1965 it had become apparent to many opponents of the ban that our only hope lay in a federal lawsuit, which Mac Smith volunteered to handle pro bono.
Although I and other student leaders were willing to be named as plaintiffs, two factors delayed the suit. Many of the would-be plaintiffs were graduating in June; more importantly, the lawyers worried that the lawsuit might be dismissed for lack of “standing” unless the students directly challenged the law by inviting one or more prohibited speakers to the campus and having them turned away.
Shortly after we graduated in June the situation was further complicated by the General Assembly’s creation of a special commission to review the law. President Friday and others felt that the ban’s opponents should give the group, which was known as “the Britt Commission,” the opportunity to do its work. In the end the commission recommended, and the General Assembly decided, that the law should be amended to make the University’s trustees and administrators accountable for enforcing a “speaker policy” that gave lip service to a diversity of viewpoints while simultaneously mandating that campus talks by anyone whose appearance would have been prohibited by the law should be “infrequent” and “rare.” By then I was in law school, Bob Spearman was a Rhodes Scholar at Oxford, and the torch had passed to another cohort of student leaders. In 1966, Student Body President Paul Dickson, DTH editor Ernie McCrary and others forced the issue by inviting Frank Wilkinson and Herbert Aptheker to speak on campus and filing suit when their appearances were forbidden by Chancellor Carlyle Sitterson and the UNC Board of Trustees.
Personally, I would have liked to have been a plaintiff in the Speaker Ban lawsuit, but in the end the most important thing was that in their misguided attempt to curtail UNC’s academic freedom and my First Amendment rights, Jesse Helms and his friends inadvertently provided me with the opportunity to understand and treasure them more deeply, to meet Mac Smith and others who became my friends and mentors, and to find my calling.
On January 29, 2015 I was surprised and flattered to find myself the recipient of the J. McNeill Smith Award from the North Carolina Bar Association’s Constitutional Rights Section. As I said in the following acceptance remarks, this award is particularly special to me because I was fortunate enough to know the great lawyer for whom it is named.
“Mac” Smith is one of my heroes. I met him in Chapel Hill in 1964 or 1965 when, as co-editor of The Daily Tar Heel, I was involved with a group of students, faculty, administrators, alumni and friends of the University of North Carolina who were actively working to repeal or overturn the notorious Speaker Ban Law. Mac had been editor of the DTH in 1938, so we made a connection.
As most of you know, the Speaker Ban prohibited the use of any state-supported college or university facilities by anyone who was a communist, who had advocated the overthrow of the U.S. or North Carolina constitutions, or who had pleaded the Fifth Amendment when questioned about subversive activities. It was passed in 1963, primarily as the result of saber-rattling by Jesse Helms, who was then an editorialist for WRAL-TV. Helms and his allies saw student participation in civil rights protests as evidence of “communist influence” at colleges and universities, especially UNC.
Mac and other lawyers, including UNC law professor Dan Pollitt and Duke law professor William Van Alstyne, were thinking seriously about challenging the law in federal court as early as 1964. Together with other student leaders, I was willing – indeed eager — to be a plaintiff, but the passage of time and events – including the General Assembly’s amendment of the law in 1965 to make the University’s trustees and administrators responsible for prohibiting campus appearances by “communists” and other anti-American speakers – resulted in delay. Ironically, that amendment made it necessary for any suit challenging the Speaker Ban to be filed against Mac’s own alma mater and its leaders.
It was not until 1966 that Mac and Professors Pollitt and Van Alstyne filed Dickson v. Sitterson, the federal lawsuit that eventually resulted in the Speaker Ban Law being declared unconstitutional; consequently, I missed out on the opportunity to be a plaintiff. That honor fell instead to Ernie McCrary, who had succeeded to the editorship of The Daily Tar Heel. In the meantime, spurred in large measure by the insights I had gained from the Speaker Ban fight, I had put aside my intention to become a journalist and entered law school at Chapel Hill. That’s why I often say that I became a constitutional lawyer because of two people: Jesse Helms, who tried to curtail my First Amendment rights, and Mac Smith, who fought to preserve them.
Mac’s papers, which are in the Southern Historical Collection at UNC’s Wilson Library, reflect the hundreds of hours of planning, research and preparation that he expended in his dogged pursuit of the Speaker Ban case. They also show that except for a few hundred dollars contributed by members of newly-formed North Carolina Civil Liberties Union, which was established in direct response to the Speaker Ban, he handled the suit without pay.
The defeat of the Speaker Ban Law was only one of many important legal victories in Mac Smith’s distinguished career, but I have focused on it today because it provided me with a personal connection to one of North Carolina’s greatest lawyers, and which led directly to my love for constitutional law. I am honored beyond measure to receive an award bearing the name of my friend, mentor and role model, McNeill Smith.
Having finally found time to read all of the concurring and dissenting opinions in the Supreme Court’s decision in Town of Greece v. Galloway, I came away disappointed, surprised and more than a little worried.
My disappointment is grounded not only in the Court’s approval of sectarian invocations at town council meetings, which was not a surprise, but also in the flimsy reasoning underlying Justice Kennedy’s majority opinion. Like former Chief Justice Berger’s 1983 opinion for the Court upholding the practice of having prayers offered in state legislatures by chaplains paid from the public purse (Marsh v. Chambers, 463 U. S. 783), Justice Kennedy’s opinion for the majority in Town of Greece is predicated on historic tradition and practice and on the dubious proposition that the invocations are offered primarily for “ceremonial,” rather than religious, purposes. “Marsh,” said Justice Kennedy, “stands for the proposition that it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted.”
“The tradition reflected in Marsh, he wrote, “permits chaplains to ask their own God for blessings of peace, justice, and freedom that find appreciation among people of all faiths. That a prayer is given in the name of Jesus, Allah, or Jehovah, or that it makes passing reference to religious doctrines, does not remove it from that tradition.”
I yield to no one in my respect for tradition and history, but I simply don’t think “we’ve always done it that way” and “it’s no big deal” are sufficient underpinnings for an important First Amendment decision.
I’m also disappointed that Justice Kennedy, who has both the demeanor and the reputation of a really nice fellow, seemingly has no real understanding of or empathy with Muslims, Jews, Hindus and non-religious citizens whose elected officials subject them to overtly or even aggressively Christian prayers whenever they attend town council meetings. He wrote that citizens who “feel excluded or disrespected” by sectarian invocations should simply ignore them. “Adults often encounter speech they find disagreeable,” he said.
Justice Kennedy’s insensitivity on this point makes me wonder whether he has ever had a meaningful personal conversation with Justice Elena Kagan, whose eloquent dissent clearly expresses the dismay and sense of ostracism experienced by Jewish and other non-Christian citizens when public business inevitably begins with an overtly Christian invocation. Justice Kennedy’s obtuseness pales, however, in comparison with Justice Alito’s blithe dismissal of minority’s objections as “niggling.”
If the result in the Town of Greece case was not surprising, Justice Clarence Thomas’s dissent was. In a radical deviation from mainstream Constitutional jurisprudence, he posited that the Establishment Clause was not made binding on state and local governments via the Fourteenth Amendment, and thus that the First Amendment does not prevent the town from establishing whatever official religion its elected officials choose. To their credit, none of Justice Thomas’s colleagues joined in support of this notion, but his raising of it also raises a question: Did the plaintiffs consider challenging the town’s prayer practices on grounds that they violated the Constitution of the State of New York, which dismantled all religious establishments in 1777?
The most worrisome part about the Town of Greece opinion is its naïveté. Justice Kennedy has degrees from Stanford, the London School of Economics and the Harvard Law School, but he presumably has not had much experience sitting in on meetings of town or county boards or councils – particularly in rural America or the Bible Belt. If he had, he would have known that not every elected local official will take to heart his admonition that legislative invocations will be deemed constitutional only so long as they are “brief, solemn and respectful” and do not cross over into coercion or intimidation. Rather, a few fervent religious zealots who won’t bother to read the Court’s opinion nevertheless will take it as a blanket endorsement of their own intolerant views. Indeed, we need look no farther away than Roanoke, Virginia, where a member of the county’s board of supervisors already has announced that in light of the Court’s decision his board should adopt a policy authorizing only Christian invocations at its meetings.
I predict, sorrowfully but confidently, that in short order many more such policies will be proposed, and that some of them will be adopted. If so, Justice Kennedy and his majority colleagues will discover that in attempting to put “ceremonial” legislative prayer in its own Constitutional box they instead have opened a Pandora’s box from which will emerge many frightening and divisive Establishment Clause issues.
Now that the primary election is over, the putatively nonpartisan election for the North Carolina Supreme Court seat currently held by Justice Robin Hudson is, in reality, a head-to-head contest between Justice Hudson, a Democrat, and Superior Court Judge Eric Levinson, a Republican.
Gone from the airways, at least for now, is the despicable and scurrilous television ad that maliciously and falsely attacked Justice Hudson as “not tough on child molesters.” The ad cited a 2010 decision in which the court’s seven members split, 4-3, over the constitutionality of a state law that required convicted sex offenders to undergo satellite-based monitoring, or “SBM,” 24-7, even if their offenses had been committed before the law was passed and they had completed their penal and probationary sentences. The only issue in the case was whether the monitoring – which significantly restricted the travel and activities of those who were subject to it – was a form of “punishment.” If so, its retroactive application ran afoul of the U.S. and North Carolina constitutions, both of which prohibit the ex post facto application of criminal laws.
The issue was both an important constitutional question and a close call. Courts in other states had gone both ways. The applicable facts raised thorny issues about which reasonable people clearly could differ. (For example, one question addressed by the court arose out of the fact that the SBM equipment prevented anyone being monitored from taking a commercial airline flight. Is this deprivation a form of “punishment?”)
In an opinion written by Justice Dan Brady and concurred in by Justices Mark Martin, Bob Edmunds and Paul Newby, the majority explained in detail why they felt that SBM was not punitive. Justice Hudson, in an opinion joined by Chief Justice Sarah Parker and Justice Patricia Timmons-Goodson, explained just as fully why they thought otherwise. Both Justice Brady and Justice Hudson argued passionately for their respective views of the constitutional issue, but neither had a kind word for child molesters or sex offenders. Moreover, since the record pretty clearly showed that the monitoring was a huge nuisance both for those being monitored and those doing the monitoring, and was not really effective as a crime prevention measure, the outcome of the case appears at the end of the day to have been largely symbolic.
Now the question is whether this tempest in a legal teapot will continue defile and define what should be a campaign between two principled people. I know and respect both Justice Hudson and Judge Levinson. Either is well qualified to sit on the North Carolina Supreme Court. But the onus in this race, like it or not, now falls on the latter. Will Judge Levinson disavow and repudiate the shabby and underhanded tactics of the big-money crowd that paid for the “not tough on child molesters” ad? If so, he is worthy of the voters’ consideration in November. Otherwise, he isn’t.
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.