There really is something stomach churning about a judge filing a defamation action. (See related post on Murphy v. Boston Herald).
This one, however, really makes me a bit unsettled. A newspaper in Illinois wrote an editorial questioning the impartiality of the Chief Justice of the Supreme Court of Illinois. He sued the newspaper for libel. (Pardon me while I reach for my antacid). Worse than that, it …………… ……… ….. ………………. ………………….. ….. ………….. ………… . ……….. .. . . .. ………… ………. ……… ….. . ….. . . …… . . … .. . …………….
I apologize for that, but if I stated my opinion, under the ruling in that case, I would likely be sued by Supreme Imperator Thomas too. Therefore, I have censored my opinion.
Just kidding. Thought I lost my yarbles for a moment there, didn’t you?
I will state my opinion — Justice Thomas should be impeached. Thomas, great bolshy yarblockos to thee and thine!
The First Amendment “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). This “actual malice” standard also applies to public figures. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974).
Justice Thomas was a public figure even before he became a public official. He was a kicker for the Chicago Bears before becoming Chief Justice of the Supreme Court of Illinois. You gotta admit, that’s one hell of a resume.
The case all started when Thomas sued for damages over a series of op-ed columnts that claimed Thomas went easy in a disciplinary hearing for a former State Attorney, Meg Gorecki, after she threw her weight behind a judicial candidate that Thomas backed. I do wish that we lived in a country where judicial back-scratching didn’t happen, but we don’t. It happens. I don’t know if it did in this case or not, and I don’t care. Lets presume, arguendo that it did not. If a judge files a defamation claim, it had better be something so clearly defamatory, and so clearly over the actual malice hurdle, that even if Justice Brennan’s ghost were on the jury, he would vote in the plaintiff’s favor. For someone of this stature to sue for defamation is, in my eyes, an impeachable offense.
The jury and trial court thought otherwise and awarded the Justice $7 million (later reduced to $4 million). According to the newspaper, during the trial, there were some shenanigans. They want to appeal, but since five of the seven members of the Illinois Supreme Court were witnesses in the trial (looks like I picked the wrong week to quit sniffing glue), there would not be a quorum of the Illinois Supreme Court if the case ever got that high. Additionally, the newspaper believes that it did not get a fair trial because, oh, the Chief Justice of the Supreme Court was the plaintiff in a state case. Hmmm….
The newspaper has appealed, but figures that it will get shafted again. Therefore, they’ve filed a pretty unorthodox civil rights violation case against the Supreme Court justices — in Federal Court. The suit claims, inter alia that the Chief Justice infected the state judiciary with a “constitutional cancer” by pursuing a defamation claim “in the friendly confines of the state legal system he dominates.”
Some key points from the complaint:
- The defamation verdict was the largest ever awarded in Illinois state history.
- The suit has “compromised the independence and the integrity of the Illinois judicial system from top to bottom.
- There was a judicial “shimmy shammy” (yes, the complaint says that) in which some suspicious judge and forum shifting took place.
- The court created a new “judicial deliberation privilege” to the detriment of the newspaper.
- Most importantly, the state court judges can not properly have a de novo review of a trial in which the supreme judges in the state must have their credibility re-examined.
I love it… “shimmy shammy.”
Here is the complaint, which the Chief Justice’s lawyer calls “frivolous” and “an abuse of process.”