First and Last, the First Amendment

August 6, 2016   •   By Stephen Rohde

ON THE OCCASION of my recent retirement from practicing law, it occurred to me that my entire 45-year career has been framed by my very first case representing William F. Buckley Jr., in a public figure libel case, and my very last case representing Britney Spears’s mother in a public figure libel case. In both, I defended the First Amendment, which has been at the heart of my law practice and intellectual life for all these years. My intellectual life, however, has been shaped by more than just the courtroom — it’s been shaped by over five decades of writing, including the book reviews I’ve written for the Los Angeles Review of Books, which are linked throughout this essay.

My first job in New York, after graduating from Columbia Law School, was working for Charles Rembar (whom I knew as Cy). He was a brilliant lawyer and would go on to publish three excellent books: The End of Obscenity (1968), Perspective (1975), and The Law of the Land (1980). Although Cy was a lifelong liberal, he decided to represent Buckley, an arch conservative, because of the important legal issues involved in the case. I had protested the war in Vietnam and disagreed with Buckley on almost every issue, but I understood why Cy took the case and Buckley turned out to be an intelligent and respectful client.

In 1968, during ABC’s coverage of the Democratic National Convention in Chicago, Buckley and Gore Vidal famously attacked each other. Vidal called Buckley “a pro- or crypto-Nazi” and Buckley called Vidal a “queer.” Esquire magazine turned around and invited each man to write articles about the incident, so they attacked each other all over again. Buckley sued Vidal and Vidal countersued.

I was immediately thrown into researching all aspects of defamation law and the implications of the relatively recent Supreme Court decision in New York Times Co. v. Sullivan (1964). This decision revolutionized libel law, imposing unprecedented First Amendment protections. I was very excited to be delving into these heady constitutional issues at my first job right out of law school. (See my review of Reading Law by Antonin Scalia and Bryan A. Garner and my review of The Classical Liberal Constitution by Richard A. Epstein.)

I worked primarily on trying to get Vidal’s counterclaims dismissed. In May 1971, the District Court granted our motion for summary judgment, which is reported at Buckley v. Vidal, 327 F. Supp. 1051 (S.D.N.Y. 1971). I was thrilled to see my name listed for the first time in a published decision.

Vidal did not sue for being called a “queer.” Instead his primary claims focused on Buckley’s comments about his novel Myra Breckinridge, such as “Let Myra Breckinridge go back to his pornography,” and “Vidal and I awaited the sound of the bell. * * * there and then I resolved in hitting him back hard with a tu quoque involving Myra Breckinridge — which I had not yet read, thinking it simply a pornographic potboiler done for money.”

Cy and I argued that Buckley’s comments on Myra Breckinridge were protected by the qualified privilege of fair comment, which could only be defeated by a showing of “malice.” The court agreed with us and found that:

[w]hen an author submits his work to the public he must, of necessity, expect criticism of that work. He is said, in fact, to invite criticism, and no matter how hostile such criticism may be, the critic enjoys a privilege to make such critical comments as long as the comment does not go beyond the published work itself to attack the author personally, […] the facts are truly stated […] the comment is fair, […] and the comment is an honest expression of the writer’s real opinion.

While the court noted that when it comes to malice, where a party’s state of mind is in issue, it is unusual that a claim may be disposed of on summary judgment; the question is for the jury only where there is evidence in the case warranting their submission to the jury, and the burden of proof is on the party claiming defamation.

The court held that summary judgment in libel cases should be liberally granted in order to give First Amendment freedoms “breathing room” and noted that the cases it was relying on were based on the First Amendment defense under New York Times Co. v. Sullivan. “[T]he interests to be served by the defense of fair comment parallel those protected under the New York Times rule, and we find the reasoning in those cases persuasive to the issue presented here.” (See my review of Madison’s Music by Bert Neuborne.)

The court held that after a

careful reading of the affidavits and other documents filed in this case, we must hold that on the issue of whether the comments by Buckley were an honest expression of plaintiff’s real opinion, defendant has raised no genuine issue of material fact and that summary judgment is the appropriate disposition.

In the midst of working on this motion, I decided to accept a new job in Los Angeles with the venerable entertainment firm Gang, Tyre and Brown. My first wife and our first child Dana flew to Los Angeles while I was supposed to drive our car across the country. But Cy asked me to stay behind to finish our pleadings, so William Buckley paid to ship my car to LA.

Fast forward through a career filled with representing all sorts of clients in all sorts of cases, including striking down California’s criminal libel statute and “Son of Sam” law, and defending college professors denied academic freedom, performers on Venice Boardwalk, the creators of the film Silkwood, a student denied his seat in a campus election, a muralist threatened with censorship, Elysium Fields nudist camp which Los Angeles County was trying to shut down, a Culver City resident who wanted to display political banners along the public streets, an African-American protestor who wore a KKK hood to a public meeting, the publisher of a biography of Jascha Heifetz (who sued for defamation), and a long list of writers, journalists, musicians and others, in cases involving libel, invasion of privacy, right of publicity, and civil rights violations. (See my review of Dissent and the Supreme Court by Melvin I. Urofsky and my review of The Great Dissent by Thomas Healy.)

Most recently, in 2013, I was asked to represent Lynne Spears, Britney’s mother. In 2008, a guy named Sam Lutfi had insinuated himself into Britney’s life. In 2009, he sued Lynne based on statements she made in her memoir entitled Through the Storm: A Real Story of Fame and Family in a Tabloid World.

Regarding Sam’s relationship with Britney, Lynne had called him a “predator,” a “fake,” a “Svengali,” “the General,” and a “gatekeeper.” She wrote that Sam told her that he “threw away all of Britney’s phone chargers and disabled the house phones by cutting the wires”; that he “disabled several of Britney’s cars so she couldn't leave unattended”; that he “grinds up Britney’s pills, which were on the counter and included Risperdal and Seroquel, and puts them in her food” because “her doctor was trying to get her into a sleep-induced coma so that they could then give her other drugs to treat her.” Finally, she wrote that Britney’s ex-boyfriend Adnan “told me that Sam hid Britney’s cell phones and told her that he lost them,” and “that Sam would also hide Britney’s dog, London,” and Britney “would look all over the house, crying, and then Sam would bring out the dog and act like some sort of savior.”

At trial, I moved for a nonsuit, arguing that under my old friend New York Times Co. v. Sullivan, Sam, admittedly a public figure, had failed to prove, by clear and convincing evidence, that Lynne made any statements with ‘“actual malice” — that is, with knowledge that they were false or with reckless disregard of the truth.

Sam and Adnan had testified that they did not make any of the statements Lynne attributed to them. But Lynne testified that all the statements were exactly what she recalled them saying. In fact, she testified that she had sworn to the truth of the statements in a declaration filed in superior court eight months prior to the publication of her book, to get a restraining order removing Sam from Britney’s life. During those eight months, Sam never made any effort to deny or refute any of the statements. Lynne had no idea that Sam disputed the truth of those statements at the time that she published her book.

The trial court granted a nonsuit. In March 2015, in what would turn out to be my last appeal, the California Court of Appeal upheld the judgment of nonsuit. Citing New York Times Co. v. Sullivan, the court held that “erroneous statement is inevitable in free debate” and must be protected “to give freedom of expression the ‘breathing space’ it needs to survive.” As the court in Buckley had held 44 years earlier, the Court of Appeal agreed that nonsuit is a favored remedy in cases involving free speech. “While nonsuits at this stage are, in general, disfavored […] ‘unnecessarily protracted litigation would have a chilling effect upon the exercise of First Amendment rights, [thus] speedy resolution of cases involving free speech is desirable.’” “[I]n defamation actions, nonsuit, like summary judgment, is ‘a favored remedy.’”

Since Sam himself testified that he moved into Britney’s home, began managing her life, set rules for the paparazzi, had the authority to authorize who could and could not enter Britney’s home, kept cell phones in her car, and was involved in managing her drug rehabilitation and prescription medications, the court found that Sam was left with nothing but the speculative possibility that Lynne simply fabricated these statements, and such speculation was insufficient to show actual malice.

The court found that Sam’s evidence that the statements were false did not amount to clear and convincing evidence that Lynne published them with actual malice.

The evidence in this case supports a conclusion that Lynne believed the statements in the book were true at the time of publication. Eight months before publication, she swore that she heard Sam and Adnan utter those statements in a declaration filed under penalty of perjury. This evidence strongly suggests that whether or not Lynne’s recollection was entirely accurate, her subjective belief was that the statements were true.

Aside from the nice symmetry of starting my career with Buckley and ending with Spears, both public figure libel cases grounded in the First Amendment, looking back, I realize that my whole career has been driven by my expanding and abiding commitment to defending freedom of expression and constitutional rights, on which I have built my expertise, experience, and reputation. It also explains why outside of my law practice I have devoted so much time and effort to writing two books, American Words of Freedom and Freedom of Assembly, and hundreds of articles, book reviews, and op-eds, as well as decades serving on the boards of the ACLU, Death Penalty Focus, PEN America Center, Interfaith Communities United for Justice and Peace, and Bend the Arc: a Jewish Partnership for Justice. (See my review of Why Tolerate Religion by Bryan Leiter and my interview with Jake Heggie on his opera, Dead Man Walking.)

In 2015, I was thrilled to attend the celebrations in London, commemorating the 800th anniversary of the issuance of Magna Carta, an early forerunner of our own Constitution.

I realize now that I have been drawn to defending nonconformists, dissenters, iconoclasts, and people who hold unorthodox and unpopular views. In the course of my last federal civil rights case, I defended the right of two Venice Beach performers who spoke out at LA City Council meetings using acerbic and profane language. In upholding my First Amendment arguments, US District Judge Dean Pregerson wrote that each of my clients “may be a gadfly to those with views contrary to [their] own, but First Amendment jurisprudence is clear that the way to oppose offensive speech is by more speech, not censorship, enforced silence or eviction from legitimately occupied public space.” Citing Plato, he wrote that “a city that silences a critic will injure itself as much as it injures the critic, for the gadfly’s task is to stir into life the massive beast of the city to ‘rouse each and every one of you, to persuade and reproach you all day long.’” (See my review of Nineteen Eighty-Four by George Orwell.)

Every career is filled with ups and downs, stresses and challenges, victories and defeats. But I feel very privileged to have used my legal training and knowledge, in collaboration with my excellent partner of many decades, Greg Victoroff, and most recently a brilliant associate, Michele Friend, to combat censorship, unwarranted government power, and small-mindedness, and to enhance tolerance, free expression, individual rights, and the spirit of intellectual freedom.


Stephen Rohde is a constitutional lawyer, lecturer, writer, and political activist.