Libel per se: The First Amendment and Limited Recourse for Public Officials

  • E-mail E-mail
  • Google+
  • Reddit Reddit

Scholars have long recognized the marketplace of ideas rationale for the immunity that citizens of the United States enjoy from liability for expressive speech. This theory was addressed by Justice Holmes in his dissent in Abrams v. United States in which he stated: “when men have realized that time has upset many fighting faiths, they may come to believe . . . that the ultimate good desired is better reached by free trade in ideas . . .”. The introduction of the doctrine of seditious libel, however, undercut this foundational First Amendment theory and buttressed a controversial First Amendment limitation: that is, the extent to which opinion speech, political or otherwise, can be suppressed when it fallaciously brings a public official into disrepute. When an opinion contributes little value to advancing public debate or transaction of ideas, the expression itself arguably becomes subordinate to the substantial interest a public official has in being insulated from reputational harm.

This tension is particularly applicable to state-elected judges as highlighted in a recent North Carolina Court of Appeals decision. On April 9, 2010, the defendant, Edward Lee Rapp – media strategist for North Carolina State Senate candidate Bettie Fennell – posted a blog entry on Facebook titled “Dirty Politics by The Good Ol’ Boys.” The post criticized the platform of Fennell’s opponent, William Rabon. More significantly, the post alleged that Ola M. Lewis, Senior Resident Superior Court Judge of Judicial District 13B in North Carolina, was “in clear violation of the seventh canon of the North Carolina Code of Judicial Conduct” (hereinafter “the Code”) for her vocal support of Rabon’s candidacy for a State Senate seat. Shortly thereafter, Rapp received a letter from Lewis’ attorney which refuted this assertion and cited to Canon 7B(2) of the Code (PDF) which states in pertinent part: “A candidate, including an incumbent judge, for a judicial office that is filled by public election . . . is not prohibited from soliciting public support from anyone.”

Following receipt of this letter, Rapp again took to social media on April 12, 2010 and posted another blog entry titled “Apologies, Corrections, Explanations and Amplifications on my Blogs.” In this post, Rapp apologized for his mistaken comment regarding Lewis’ violation of the Code, but framed his apology by stating that he was simply not the proper authority to make such judgments, that “proper disciplinary proceedings” would have been more appropriate, and that he was merely voicing his opinion in conjunction with a conversation he had with his attorney friend who agreed that there was “probable cause” for action to be taken against Lewis on the basis of her expressive conduct. Lewis subsequently filed a complaint alleging that Rapp’s publications were libelous per se. As to the April 12, 2010 post, the North Carolina Court of Appeals found that a genuine issue of material fact existed for jury determination with regard to actual malice, and remanded the case to trial court for which oral arguments began this past Wednesday.

Given that she was engaged in her own re-election campaign, did Lewis have a constitutional right to endorse the candidacy of Rabon notwithstanding her capacity as a state official? Did Rapp’s statements about Lewis qualify as a constitutionally protected opinion, even if relayed under the cloud of a falsehood? In North Carolina, libel per se exists when a publication alone, among other circumstances, tends to impeach a person in that person’s trade or profession. However, the First Amendment places limits on the extent to which a public figure can recover for defamation. The United States Supreme Court has held that generally, “statements of opinion relating to matters of public concern which do not contain provable false connotations are constitutionally protected.”New York Times v. Sullivan presumably heightened the standard of proof for a public official-plaintiff, and established that in order for a public official to recover in a libel action, s/he must prove that the defamatory statement was made with actual malice, i.e. with knowledge that it was false or with reckless disregard as to whether the statement was false. The policy justification for this limitation is based on the above-mentioned marketplace of ideas theory, and the need for a “robust and wide-open debate of public issues.” Whether Rapp’s commentary constitutes socially useful speech is up for debate. Nevertheless, Lewis will have the difficult task of proving that the connotations in Rapp’s blog post were not only false, but were relayed with actual malice. Since Rapp’s refutation of the knowledge element was accepted by the Court of Appeals, Lewis will have to rely on evidence tending to show that Rapp acted with reckless disregard for this falsehood in order to show actual malice – an enigmatic task to say the very least.

The trial of Lewis v. Rapp will unquestionably be laden with First Amendment arguments on both sides. For instance, while formal legal restraints on expression do exist, a plaintiff in a position similar to Lewis’ might argue that the truth of the libel should be an absolute defense. This perspective is reinforced where reputational harm stemming from the falsehood could be fatal to an individual’s profession, as in the case of Ola M. Lewis who would be re-elected to her judicial post based primarily on her reputation, history of conduct in her official capacity, and personal integrity. On the other hand, Rapp is constitutionally entitled to engage in political speech, which should in turn contribute to the “robust and wide-open debate of public issues” -- an imperative to fruitful debate in political campaigns. Furthermore, Rapp argued in his April 12 response that “office holders cannot appear to be private citizens.” A subsidiary First Amendment discussion that may ensue is the vehicle through which the allegedly defamatory statement was made: cyberspace. In the realm of cyberspace, should the standard enumerated in New York Times v. Sullivan apply? Should it matter whether the defendant exercises “editorial” control? Case law in this area is not as well-established as it is in the realm of print media.

This case will provide an opportunity for the court to address important remaining questions: how do courts tend to reconcile actual harm caused to a public official while still affording First Amendment protections to an alleged perpetrator? Does proof of actual harm require the public official to demonstrate pecuniary loss or something more? If the former, would monetary damages be a more appropriate remedy than granting an injunction? Finally, did the falsity of Rapp’s statements alone make his First Amendment argument a moot point? In considering these questions, the deliberations in this case have the potential to be a catalyst for North Carolinians to reconsider First Amendment protections as applied to judicial candidates in the realm of political campaigns.


Posted by Gina C. LeBlanc on Sun. February 3, 2013 11:03 AM
Categories: Libel per se, Social Media

Comments for this post are now closed.

UNC School of Law | Van Hecke-Wettach Hall | 160 Ridge Road, CB #3380 | Chapel Hill, NC 27599-3380 | 919.962.5106


If you are seeing this, you are either using a non-graphical browser or Netscape 4.x (4.7, 4.8, etc.) and this page appears very plain. If you are using a 4.x version of Netscape, this site is fully functional but lacks styles and optimizations available in other browsers. For full functionality, please upgrade your browser to the latest version of Internet Explorer or Firefox.