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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Friends, qualified immunity is not our favorite doctrine; in fact, it’s among our least favorite. (We might even go so far as to say it’s worse than Noerr-Pennington, though certainly reasonable minds might quibble.) Which is why IJ has drafted model legislation that legislators can use to reform (or nuke) the doctrine. And we’re pleased to report that a bill that hews closely to our model bill passed New Mexico’s House of Representatives this week. Among other highlights, the bill gives victims a remedy when gov’t employees violate their constitutional rights and requires gov’t agencies (or their insurers) to cover the cost of litigation and any judgments, rather than imposing personal liability on gov’t employees. Click here to learn more.

New on the Short Circuit podcast: Thanks to special guest Ed Walters of Georgetown Law we finally live up to the 1980s-movie-sense of our name and talk robot law.

• The Horse Protection Act bans intentionally injuring horses’ limbs so they have fancy gaits in shows and exhibitions. But the law is enforced before administrative law judges who, under a recent Supreme Court case, haven’t been strictly speaking constitutionally appointed. The feds now admit that, in a prosecution that began in 2017, the ALJs it used were not-okay (but only kind of not-okay). Do they get a re-do in front of new ALJs? D.C. Circuit: Yes. Petitioners didn’t raise the constitutional issue they now seek to press below, and so it is waived. Concurrence: You don’t have to preserve constitutional issues because ALJs can’t do anything with them anyway.
• Plaintiffs challenge new federal rules protecting free speech and due process rights in “Title IX Hearings.” Free speech groups move to intervene, claiming the feds will not adequately protect their interests. District court denies motion before any response with sparsely written order. First Circuit: Affirmed. When it comes to the gov’t we gotta assume it’s here to help. Plus, even though district court didn’t have great reasons, we came up with some.
• In 2020, New York repealed section 50-a of its Civil Rights Law, which shielded police disciplinary records from disclosure under the state’s Freedom of Information Law. New York Police Union: If our disciplinary files are made public, our members will have a hard time getting jobs! Second Circuit: Sounds like that one’s on you guys.
• Convicted mafioso fights deportation to Italy, arguing that if he’s sent back, he’ll face the country’s “41-bis prison regime,” a highly restrictive form of solitary confinement that he alleges violates the international Convention Against Torture. Second Circuit: It’s bad, but it’s not torture. Dissent: Isn’t it, though?
• Texas law allows officers of religious organizations—but not secular celebrants—to conduct marriage ceremonies, a prohibition that the Dallas County Clerk enforces by refusing to record marriage licenses signed by secular celebrants. Secular celebrants sue, seeking order requiring clerk to record marriages they officiate. Fifth Circuit: Because the law also criminalizes the secular celebrants’ conduct, and they didn’t also sue to enjoin those criminal penalties, ordering the clerk to record the marriages won’t completely redress their injury and thus they lack standing.
• Can a case ripen while on appeal? Or must it be dismissed and the plaintiff required to file a new case? Fifth Circuit: Since the plaintiff gets to litigate the claim in either case, it’s tough for us to see what’s wrong with remanding the existing lawsuit.
• Two Goliad County, Tex. sheriff’s deputies pursue a man and allegedly beat him after he surrenders. He sues. District court: A police car’s dashcam video “substantially contradicted” the man’s account. Qualified immunity! Fifth Circuit: What? The dashcam didn’t record the altercation at all. To trial the case must go.
• Two teenagers walking home from a party are killed in an El Paso, Tex. drive-by shooting in 1993. Through coercive tactics (including threatening prison rape and the electric chair), officers obtain witness statements implicating a 16-year-old and then a confession from him (that he recants within hours). No physical evidence implicates him, but loads of evidence point to two brothers. The teen is convicted, sentenced to two life sentences. Texas courts overturn his convictions; he’s tried again and acquitted. All told, he spends nearly 20 years in prison for crimes he did not commit. Fifth Circuit: His lawsuit against the officers can go forward. (More details on the case from the district court opinion.)
• The Sixth Circuit is willing to put scare quotes around the “books” that this roadside adult bookstore purveys, but it is not willing to let Kentucky impose content-based restrictions on its signage.
• In 2017, Arkansas enacted a law requiring government contractors to certify that they won’t boycott Israel. Would-be contractor: That violates our First Amendment rights. Eighth Circuit: When it comes to boycotts, there might be some tricky lines between commercial activity (not protected by the First Amendment) and speech (protected). But Arkansas’s law potentially covers activities like posting anti-Israel signs and even publicly criticizing the law itself. So to that extent, at least, the law is unconstitutional. Dissent: Read most naturally, the law doesn’t reach the speech conjured up by the majority.
• Stiffed in the suburbs, a St. Louis cabbie places a late-night call to the cops. Two officers arrive, search the neighborhood for the fare-skipper, notice that one house has a slightly open door, and enter the home with guns drawn. Displeased, the rudely awakened residents (who were not cabbie stiffers) sue. Eighth Circuit: Under the “community caretaker” exception to the Fourth Amendment, the officers enjoy qualified immunity for entering the garage. But barging into the house itself? That’s beyond the pale. Kobes, J., concurring and dissenting: No qualified immunity for any of it.
• Missouri only lets licensed in-state retailers deliver alcohol directly to Missouri consumers. Out-of-state retailers: That violates the Dormant Commerce Clause and the Privileges and Immunities Clause. Eighth Circuit: No it doesn’t and no it doesn’t.
• New Arizona resident wants to register to vote in the 2016 election. Uh oh! The last day for voter registration in 2016 fell on Columbus Day! Was the state required to accept registrations submitted the following business day? Ninth Circuit: It was not (though the state has wisely corrected this problem).
• Huntington Beach, Calif. police officer sees a man standing on the sidewalk wearing a sweater on a warm day, decides to investigate. A melee ensues, and the cop shoots the man without warning six times, followed by a warning and then a seventh shot. The man dies. In this context, the Ninth Circuit provides a primer on the differences between California negligence law and the Fourth Amendment and allows the negligence claim to go to trial.

Last summer, officials in Sierra Vista, Arizona ordered residents to leave their homes within 30 days. These residents are elderly, disabled, or living on a fixed income, and there is nothing wrong with their homes. The city simply decided that the best time to begin enforcing a long-unenforced provision of its zoning code was during a pandemic. The code bans living in certain kinds of trailer homes in one part of the neighborhood, but not the other. This means the residents will all be forced to move, including off land they own free and clear, to rent worse property just down the street which costs more and which they can’t afford. Moreover, the neighborhood is chock-full of abandoned and derelict properties the city has ignored. Instead, it is focusing its resources on kicking people out of well-maintained homes. This week, IJ filed suit in state court. If the city is going to force people out of their homes, Arizona’s Constitution demands that officials have a good reason. Click here to read more.

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One dose of the Pfizer/BioNTech COVID-19 vaccine is 85 percent effective in preventing symptomatic disease 15 to 28 days after being administered, according to a new study reported in The Lancet. Currently, the Centers for Disease Control and Prevention (CDC) recommends that the U.S. stick to the two-dose regimen with vaccinations occurring 21 days apart, the approach that was tested in clinical trials and approved by the Food and Drug Administration (FDA). That dosing regimen provides 95 percent protection against the virus. The CDC recently advised that waiting up to 42 days between the first and second doses would be OK.

The new study bolsters an analysis by other researchers published in The New England Journal of Medicine (NEJM) that estimated that one shot of the Pfizer/BioNTech vaccine is 92.6 percent effective after two weeks. The same researchers also found that one dose of Moderna’s COVID-19 vaccine is 92.1 percent effective after two weeks.

In response to the NEJM analysis, Pfizer researchers noted that alternative dosing regimens have not been evaluated. They added, “The decision to implement alternative dosing regimens resides with health authorities; however, we at Pfizer believe that it is critical for health authorities to conduct surveillance on implemented alternative dosing schedules to ensure that vaccines provide the maximum possible protection.”

Of course, the question is whether we should “provide maximum possible protection” for individuals or for populations. Back in December, I asked, “Why use two doses of COVID-19 vaccines when one works almost as well?” I pointed out the fact that we could double the number of Americans vaccinated against COVID-19.

Similarly, in a recent Washington Post op-ed, George Mason University economist Alex Tabarrok asked:

Is it better to give a second dose to one person, boosting them from 80 percent to 95 percent protected, or to give a first dose to someone else, raising them from 0 percent to 80 percent protected? Ethics and efficiency both suggest that it’s better to protect two people well than one person maximally. It’s also a quicker route to herd immunity, a key part of any vaccine strategy.

In other good news, Pfizer is reporting that its vaccine no longer needs ultra-cold refrigeration and can instead be stored for two weeks at temperatures commonly found in pharmaceutical freezers and refrigerators. This considerably simplifies and speeds the vaccine’s wider distribution.

New reports about the efficacy of a one-dose regimen are vindicating the United Kingdom’s decision to delay the second dose of these vaccines by 12 weeks so that supplies can be stretched in order to inoculate more people more quickly. Let’s hope these new data prod the Biden administration into making a similar decision soon.

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Republicans tend to get more blame than Democrats do for the terrible state of America’s criminal justice system, with its overly punitive “tough-on-crime” policies and enthusiasm for mass incarceration. But new research published in Political Research Quarterly challenges this calculation. In looking at whether Democratic or Republican state leaders drive more carceral policies, Anna Gunderson—an assistant professor of political science at Louisiana State University—found that “Democratic governors who barely win their elections outspend and outincarcerate their Republican counterparts.”

For her research, Gunderson examined three measures of tough-on-crime tactics—prison admission rates, overall incarceration rates, and state corrections budgets—alongside state election returns between 1982 and 2016.

In states and elections where Democratic governors only eked out a win, corrections spending rose by around $15 per capita. Gunderson also found “tentative evidence” that Democratic governors who had been in tight electoral contests increased incarceration rates and prison admissions, too.

The results highlight “Democrats’ complicity in the expansion of the carceral state,” Gunderson writes.

Why did electorally vulnerable Democrats get more carceral? “Democrats were afraid to look weak on crime and instead supported policies at least as punitive or even more punitive than their Republican counterparts,” suggests Gunderson. They “adopted tough on crime measures to curry electoral favor and siphon voters who were voting Republican because of their crime platform.”

As an example, she offers up Mario Cuomo, a Democrat (and father of current New York Gov. Andrew Cuomo) who served as governor of New York from 1983 to 1994. Cuomo “presided over a massive $7 billion prison construction program and added more prison beds to the state than all the previous governors in New York history combined,” Gunderson writes. While he “once called the prison boom ‘stupid,'” Cuomo changed his tune amid accusations of being soft on crime.

By now, the fact that Democrats (including President Joe Biden) were no better than their Republican counterparts about crime panic in the late 20th century is pretty well established. But Gunderson found this held true whether we’re talking about the data from the ’80s and ’90s or from 2000–2016. For both time periods, “the results here suggest electorally vulnerable Democratic governors will prioritize punitive policies in an effort to woo voters,” her paper states.

Ultimately, the results “throw a wrench into conventional understandings of the politics of punishment,” suggests Gunderson. “These results suggest it is not only Democrats in particular regions or states, but all those that are facing stiff electoral competition that are pursuing these punitive policies.”

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Before the tariffs hit, Sonat Birnecker Hart’s Chicago-based distillery was seeing exports to Europe and the United Kingdom grow by about 25 percent annually.

It’s been a different story for KOVAL Distillery recently, with sales across the Atlantic down 60 percent since whiskey got caught up in a trade war. “This erodes years’ worth of effort by our team to get onto European shelves,” Hart writes in an op-ed for The Washington Post. “The longer we’re off these shelves, the harder it will be to get back on them.”

The tariffs that have wrecked Hart’s ability to grow her brand overseas were imposed in retaliation to the Trump administration’s tariffs on steel and aluminum imported from Europe. Since June 2018, the European Union has applied 25 percent import taxes on American whiskey and a variety of American agricultural goods including corn, orange juice, peanut butter, and tobacco products.

Combined with the economic impact of the COVID-19 pandemic, the tariffs have forced Hart to scale back significantly: closing the distillery’s tasting room and laying off employees. Across the industry as a whole, American whiskey exports to European countries have declined by 53 percent since the tariffs were imposed, according to trade data tracked by the Distilled Spirits Council of the United States (DISCUS), an industry group.

And now another major hurdle looms on the horizon. Unless the U.S. reaches a deal with Europe to roll back the Trump-era tariffs before June 1, the European tariffs will automatically double from 25 percent to 50 percent.

That’s one of the first significant deadlines looming for the Biden administration as it navigates (and at least partially embraces) the haphazard trade environment left by Trump. When the Senate convenes next week for a confirmation hearing on Biden’s pick to be the U.S. trade representative, Katherine Tai, members should demand a plan to avoid that scheduled tariff hike.

The tariffs on Chinese imports that came to define Trump’s trade agenda have been economically damaging, but Biden appears unwilling to discard them for fear of losing the domestic political benefits that come with standing up to China. The U.S.-E.U. front of Trump’s trade war, meanwhile, is economically nonsensical and politically pointless—it is causing unnecessary pain to American businesses and the economies of longtime allies without providing any apparent benefits (even vacuous, populist ones).

Further complicating things is a mostly unrelated set of tariffs imposed by the U.S. in 2019 on European cultural goods, including Scotch whisky and French cheeses, in response to what the U.S. sees as unfair E.U. subsidies for Airbus, a European airplane manufacturer. The dispute over airplane manufacturing subsidies predated Trump’s election, but it came to a head alongside his other tariff maneuvers.

In short, at the same time that European tariffs on whiskey have hurt U.S. exports for American distillers, the U.S. tariffs on Scotch have raised prices for American consumers. It’s a lose-lose mess.

“Hospitality businesses on both sides of the Atlantic have been decimated by the global pandemic, and these tariffs are a significant and unnecessary drag on their recovery,” says Christine LoCascio, chief of public policy for DISCUS. “We are hopeful the Biden administration will clearly recognize the widespread damage being caused by the escalation of these trade disputes.”

Last month, 72 trade associations representing booze businesses on both sides of the Atlantic sent a letter to the White House requesting the “immediate suspension” of tariffs on alcohol and other products unrelated to the underlying disputes over steel, aluminum, and airplanes.

And the U.K. seems eager to work out a deal. Reuters reported last month that British trade minister Liz Truss was seeking a meeting with Tai to specifically discuss the U.S. tariffs on Scotch whisky.

With Britain having left the E.U., it makes little sense for the Biden administration to continue punishing Scotch producers and consumers for the crimes of the European government. But it’s probably true that the only way to avoid a June 1 escalation of the E.U. tariffs on American whiskey is for the Biden administration to abolish Trump’s tariffs on steel and aluminum. Tai should outline a plan to do exactly that at her confirmation hearing next week.

Until then, however, KOVAL Distillery and other American whiskey-makers are caught in the middle of an awful political mess. Almost no one wants the retaliatory tariffs on whiskey to remain in place, but policy inertia might cause them to worsen before they get better.

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I noted in December that the UCLA First Amendment Amicus Brief Clinic filed an amicus brief, in Lowell v. Wright in this case, on behalf of the Institute for Free Speech; the Electronic Frontier Foundation; Profs. William Funk (Lewis & Clerk), Ofer Raban (U. of Oregon), and Kyu Ho Youm (U. of Oregon); and bloggers Prof. Glenn Harlan Reynolds, Howard Bashman, SCOTUSblog, and me.

This morning, the Oregon Supreme Court has announced that it will review the decision below, and therefore consider the issue. Here again is our brief supporting the petition for review; I expect that we will refile a version of this brief in the coming weeks, at the merits stage of the case:

Introduction

This case presents three important related questions:

(1) Does Oregon law unconstitutionally deny ordinary Oregonians the protections offered by Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 (1974), which limits presumed damages in libel cases brought by private figures?

(2) Does Oregon law unconstitutionally discriminate in this respect against ordinary speakers, denying them the same First Amendment rights that the institutional media enjoy?

(3) Is it unsound for Oregon law to differ from the Ninth Circuit precedent that covers virtually identical lawsuits that happen to be within the federal courts’ diversity jurisdiction?

The appellate court below, citing Wheeler v. Green, 286 Or 99 (1979), held that the First Amendment only requires proof of “actual malice” to recover presumed damages “in defamation actions brought by private parties against media defendants.” Lowell v. Wright, 306 Or App 325, 347 (2020)(emphasis in original). But this analysis is not correct; to the extent Wheelerso holds, it fails to properly protect the First Amendment rights of nonmedia speakers.

This Court should grant review for three related reasons:

1. This Court’s holding in Wheeler created a First Amendment double standard that conflicts with subsequent United States Supreme Court decisions. The U.S. Supreme Court has refused to create any media-nonmedia distinction, both in libel cases and in First Amendment cases. And, as that Court has said, this equal treatment is especially sensible in the internet era. Media participation has become increasingly decentralized and commonplace, making it impossible to draw meaningful distinctions between media and nonmedia speakers. And even if such distinctions were possible, First Amendment values are better served by treating both types of speakers equally.
2. Oregon’s rule departs from the view of the federal circuit courts. All seven circuits to consider the question presented here have held that the First Amendment applies equally to media and nonmedia speakers in defamation actions; six of those circuits, including the Ninth Circuit, held this after Wheeler was decided. Oregon’s conflict with the Ninth Circuit is especially troublesome because it makes the First Amendment standard for Oregon defamation cases turn on whether the case is in state or federal court.
3. The Wheeler rule is also an aberration among state courts. Twenty state courts treat media and nonmedia speakers equally in defamation cases; only a few discriminate among them. Just last year, the Minnesota Supreme Court—one of the few that had endorsed a media-nonmedia distinction—joined the prevailing approach in treating all speakers equally. This Court should also take a fresh look at Wheeler, in light of the developments since 1979….

Argument

[I.] Wheeler Conflicts with Subsequent U.S. Supreme Court Decisions, Which Reject Lesser First Amendment Rights for Nonmedia Speakers

In defamation cases, the U.S. Supreme Court has indicated that media and nonmedia speakers are equally protected by the First Amendment. Most recently, in Citizens United v. FEC, 558 U.S. 310 (2010), the Supreme Court expressly endorsed the view that “the institutional press” has no “constitutional privilege beyond that of other speakers,” in fact noting that it had “consistently rejected the proposition.” Id. at 352 (internal quotation marks omitted). And in the process the Court endorsed the view of five concurring and dissenting Justices in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), a leading libel law precedent: Writing for the four dissenters, Justice Brennan wrote that “the rights of the institutional media are no greater and no less than those enjoyed by other individuals engaged in the same activities,” id. at 784, and Justice White, concurring in the judgment, “agree[d] with Justice Brennan that the First Amendment gives no more protection to the press in defamation suits than it does to others exercising their freedom of speech,” id. at 773.

Indeed, the Court has expressly refused to discriminate against nonmedia speakers in many other First Amendment contexts as well. It has refused to provide the institutional media with “a testimonial privilege that other citizens do not enjoy,” Branzburg v. Hayes, 408 U.S. 665, 690 (1972), or “a constitutional right of special access to information not available to the public generally.” Pell v. Procunier, 417 U.S. 817, 834 (1974). And it has declined to grant the institutional media preferential First Amendment treatment under generally applicable antitrust, copyright, and labor laws. See Eugene Volokh, Freedom for the Press as an Industry or Technology? From the Framing to Today, 160 U. Pa. L. Rev. 459, 506–09 (2012).  The principle is that all speakers, whether the institutional media or ordinary people, are entitled to the same First Amendment protections when speaking to the public (whatever extra protection some speakers may enjoy under state law).

The constitutional protection provided in Gertz—in particular, that private-figure defamation plaintiffs must show defendants’ actual malice (“knowledge of falsity or reckless disregard for the truth”) to recover presumed damages—must therefore apply equally to media and nonmedia defendants. And this is consistent with Gertz itself: Nothing in the Court’s discussion of presumed damages in Gertz, 418 U.S. at 349–50, turns on the speaker’s status; the Court’s references elsewhere in the opinion to “media” or “publishers” stemmed simply from the defendant in that case being a magazine publisher.

This equal treatment of all speakers, media and nonmedia, as to First Amendment defamation rules is also consistent with broader First Amendment principles. The Court has rightly viewed the First Amendment’s “freedom … of the press” as protecting the press as a technology—the printing press and its technological heirs—and as a function (gathering and reporting information to the public using mass communications technology) rather than giving special rights to a particular industry. See generally Volokh, supra, at 463–65. The freedom of the press is a “fundamental personal right[]” that is enjoyed by nonprofessional leafletters as much as by the professional media: “The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.” Lovell v. City of Griffin, 303 U.S. 444, 450, 452 (1938).

And this constitutional equal treatment makes sense, especially given developments since Wheeler. “With the advent of the Internet and the decline of print and broadcast media, … the line between the media and others who wish to comment on political and social issues becomes far more blurred.” Citizens United, 558 U.S. at 352.

Ordinary consumers like Wright can now speak to the public the same way that reviewers writing for newspapers or magazines could, such as by reviews on Google and Yelp. They can also set up review sites that are essentially online magazines. No First Amendment line can be drawn between, say, a free alternative newspaper that publishes reviews, a consumer group’s site, an individual’s own complaint site, or a one-off review posted by the individual on a third-party site.

Indeed, the amici exemplify how blurry the media-nonmedia line would have to be:

• The Institute for Free Speech and the Electronic Frontier Foundation are not usually thought of as “media,” but they maintain web sites (http://ifs.org/ and http://www.eff.org) on which they publish their views to the world, just as online magazines do.
• Howard Bashman is a lawyer, but his How Appealing blog is likely the nation’s leading news source related to appellate litigation.
• SCOTUSblog is published by lawyers, but it has become the nation’s leading news source on the Supreme Court.
• Reynolds publishes the InstaPundit blog, one of the leading political and public policy blogs in the country; he has also often written in newspapers such as USA Today and the New York Post, and has sometimes excerpted material from those articles on his blog.
• Volokh publishes the Volokh Conspiracy blog, also a leading blog on law; for some years it was independently hosted but since 2014 has been hosted at mainstream media sites (the Washington Post and then Reason magazine).
• Youm and Volokh publish their views to the public via Twitter, at @MarshallYoum and @VolokhC.
• And Profs. Funk, Raban, Youm, Reynolds, and Volokh have regularly conveyed their analyses to lawyers, judges, and academics by publishing law review articles.

How can the law sensibly and fairly decide which of the amici are “the media” (at least for certain purposes) and which are not?

And even if it were possible, drawing a media-nonmedia distinction would be unwise. As the Supreme Court explained in Gertz, juries in defamation cases might be tempted to use presumed damages (as opposed to provable compensatory damages) “to punish unpopular opinions rather than to compensate individuals for injury sustained.” Gertz, 418 U.S. at 349. And by giving juries an “uncontrolled discretion” to award damages to reputation, the presumed damages doctrine “unnecessarily exacerbates the danger of media self-censorship” and chills the exercise of First Amendment rights. Id. at 349, 350.

This logic applies even more clearly to nonmedia speakers. Media speakers are more likely than most nonmedia speakers to have considerable assets, enabling them to fight libel cases; they also often buy libel insurance, because that is needed for them to function (and is a tax-deductible business expense). They also have paid staff who are trained to investigate the facts, keep careful notes, and otherwise protect their institutions from liability. Nonmedia speakers generally lack these protections: They have fewer assets; they often lack libel insurance; and they have more limited investigatory resources. They are thus at least as subject to the chilling effect of presumed damages as are media speakers—and therefore need the same First Amendment protections as do the traditional media.

This case would not require this Court to reconsider the result in Harley-Davidson Motorsports, Inc. v. Markley, 279 Or 361 (1977). Though that decision also mentioned the media-nonmedia distinction, it did so with regard to speech said privately to a business rather than to the public, id. at 363, and on a matter where “there is no issue of public concern,” id.In Dun & Bradstreet, the U.S. Supreme Court held that the First Amendment does not affect libel liability in cases where there is no issue of public concern, especially when the speech is conveyed just to a few listeners. 472 U.S. at 761–62 (lead opin.). The result in Harley-Davidson can thus be reconciled with the U.S. Supreme Court precedent in Dun & Bradstreet (even though Dun & Bradstreet rejected the media-nonmedia distinction). But Wheeler cannot be reconciled with the U.S. Supreme Court precedent in Gertz and Citizens United.

[II.] Wheeler Also Conflicts with Every Federal Appellate Court to Consider the Same Question, Including the Ninth Circuit

All seven federal appellate courts to consider the issue have held that the actual-malice rule applies equally to private-figure defendants in defamation cases. [Citations omitted. -EV] Six of those decisions postdate Wheeler.

Most importantly, the Ninth Circuit has held that “the First Amendment defamation rules in Sullivan and its progeny apply equally to the institutional press and individual speakers.” Obsidian Fin. Grp, 740 F.3d at 1291. This means that federal and state courts in Oregon dealing with virtually identical cases now apply different rules:

• Non-Oregon speakers (such as the defendant in Obsidian) who allegedly libel an Oregonian can get the protections offered by Gertz, because they can litigate their cases in federal court.
• Oregon speakers who allegedly libel another Oregonian cannot get those protections, because their cases must be litigated in state court.

This Court should step in to decide whether this discrimination against Oregon speakers should remain in place.

[III.] Wheeler Also Conflicts with the Great Majority of State Courts

Published appellate decisions in twenty states, plus the District of Columbia, have secured to media and nonmedia speakers the same First Amendment rights in tort lawsuits brought based on speech communicated to the general public. [Citations omitted. -EV] This is consistent with the view that all who use “the press” in the sense of the technology of mass communication have equal First Amendment rights. Volokh, supra, at 463–65. On the other hand, only two states besides Oregon have published precedents denying full First Amendment protections to nonmedia speakers who communicate to the general public. Fleming v. Moore, 275 S.E.2d 632, 638 (Va. 1981); Denny v. Mertz, 318 N.W.2d 141, 152–53 (Wisc. 1982). One other state established a rule that certain subjects, when addressed by media defendants, are by definition matters of public concern, but this does not itself create a media/non-media distinction like that applied by the decision here. [Footnote discussing Senna v. Florimont, 958 A.2d 427 (N.J. 2008), omitted. -EV]

Indeed, other states that had previously rejected the prevailing view have since reversed course. Just last year, the Minnesota Supreme Court held that private-figure plaintiffs must prove actual malice to recover presumed damages against nonmedia defendants, Maethner v. Someplace Safe, Inc., 929 N.W.2d 868,  878-79 (Minn. 2019), and departed from its contrary decades-old precedent in Richie v. Paramount Pictures Corp., 544 N.W.2d 21 (Minn. 1996). Likewise, the Louisiana Supreme Court in Kennedy v. Sheriff of E. Baton Rouge, 935 So. 2d 669, 678 (La. 2006), held “that a private individual’s right to free speech is no less valuable than that of a publisher, broadcaster or other member of the communications media,” effectively overruling contrary Louisiana Court of Appeals precedent (Gilbeaux v. Times of Acadiana, Inc., 693 So. 2d 1183, 1188 (La. Ct. App. 1997)).

Conclusion

Wheeler is inconsistent with subsequent Supreme Court precedent, federal appellate precedent, and the prevailing view in many other state courts. Wheeler conflicts with fundamental First Amendment values: It chills the speech of nonmedia speakers in an electronic age, when that speech has become indistinguishable from that of media speakers, and just as significant to the public. And Wheeler‘s inconsistency with Ninth Circuit precedent leads to different First Amendment rules being applied in libel cases depending on whether they are filed in state or federal court. This Court should grant review to consider whether this aspect of Wheeler should be overruled.

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