Jun 14, 2019

Wisconsin Cop Asks Federal Court to Gut Landmark First Amendment Case

Manitowoc County Sheriff Lt. Andrew Colborn (ret)
has included an argument in his federal defamation
suit against the creators and distributors of Making a
Murderer that seeks to eviscerate First Amendment
protections exemplified in the First Amendment
case, New York Times v Sullivan

Making a Murderer case seen as vehicle to revisit New York Times v. Sullivan, reorder libel law, per Justice Clarence Thomas

 
Update: In July 2019, U.S. District Judge Pamela Pepper published a NOTICE of Hearing on pending motions set for December 19, 2019.

It appears likely Judge Pepper will dismiss Colborn's legal action, Colborn v. Netflix, Inc (1:19-cv-00484).

Just as likely, Colborn will appeal the case to the United States Court of Appeals for the Seventh Circuit.
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Madison, Wisconsin — Manitowoc County Sheriff Lt. Andrew Colborn (ret) is the face of Wisconsin law enforcement — provincial, unschooled and corrupt.

To Colborn, featured in the Emmy-winning Making a Murderer for framing Steven Avery and committing perjury in court, Wisconsin citizens are enemies, subjects to be conquered at will.

Now, Colborn has included an argument in his federal defamation suit against the creators and distributors of Making a Murderer that seeks to eviscerate First Amendment protections exemplified in the First Amendment case, New York Times v Sullivan.

In Wisconsin, because of law enforcement's prevailing conception of America exemplified by former electoral candidate Colborn's actions, frame-ups, character assassinations and wrongful convictions are per force just when perpetrated by law enforcement.

Andrew Colborn filed a defamation suit against the Making a Murderer creators, Laura Ricciardi and Moira Demos, Netflix, Inc and others in Manitowoc County Wisconsin Circuit Court in Dec 2018,  (Andrew L. Colborn v. Netflix Inc., Chrome Media LLC, Laura Ricciardi, Moira Demos, Lisa Nishimura, Adam Del Deo, Mary Manhardt, and Synthesis Film LLC).

Plaintiff Colborn's action accuses Netlix, Inc and other defendants of having "omitted, distorted, and falsified material and significant facts in an effort to portray Plaintiff [Andrew Colborn] as a corrupt police officer who planted evidence to frame an innocent man," (Appleton Post-Crescent).

Colborn's case is intended to shield police against citizens' speech and negative coverage in the press.

This is the first time in this litigation Colborn explicitly calls for the Court to revisit a foundational First Amendment case, New York Times v Sullivan.

Colborn v. Netflix was removed to federal court in April 2019, United States District Court, Eastern District of Wisconsin, (WBAY, Appleton Post-Crescent). The federal case is: Colborn v. Netflix, Inc (1:19-cv-00484).

The case is being heard by Judge Pamela Pepper, United States District Judge of the United States District Court for the Eastern District of Wisconsin.

Colborn though his attorney, George Burnett, argues in his June 13, 2019 brief in opposition to Netflix' May 9, 2019 motion to dismiss. The Netflix motion to dismiss argues in part the failure of Colborn to meet the low threshold of stating a claim upon which relief can be granted, citing Federal Rules of Civil Procedure, 12(b)(6).

Burnett's argument in reply is weak.

But it is Burnett-Colborn's plea for revisiting New York Times v Sullivan that should cause concern among those favoring constitutional liberties so despised by Wisconsin law enforcement.

The argument against Sullivan is included to preserve an argument, should the case survive the motion to dismiss and proceed through the federal court system.

Still, upending Sullivan and 55 years of First Amendment and libel jurisprudence is a Hail Mary pass times 100.

Reached for comment, Howard Schweber, an expert in constitutional law, judicial politics, free speech, and democratic theory at the University of Wisconsin-Madison, acclaimed the prominence of the First Amendment.

The first thing to know is that the Coborn brief and this argument (apparently) both rely on a single source of authority: Justice Thomas concurring opinion in an earlier case. Except that it wasn't really a "case", it was a denial of cert (the Supreme Court declining to hear an appeal from the First Circuit from the dismissal of a defamation claim brought by Bill Cosby against an actress who accused him of rape).

The thing is, no other justice joined that opinion, nor am I aware of any other justice who has ever advocating revisiting Sullivan in this way. And Thomas takes lots of positions in which he stands alone, such as his argument that the Establishment Clause does not apply to states at all. Thomas defends these positions on strict originalist grounds; the late Justice Scalia was talking about Thomas when he said "I may be an originalist but I'm not a nut".

So in any ordinary time I would say this is a hopeless Hail Mary legal argument with essentially zero chance of success. But it is possible that we are entering extraordinary times in constitutional doctrine, especially where the First Amendment is concerned. President Trump has publicly called for a reconsideration of the Sullivan rule, and the Republican Senate has been extremely effective in filling judicial seats with extremely right wing candidates in ways that have bypassed almost all existing checks and procedures in favor of speed and efficiency. As a result, there is a cadre of federal judges, all recently appointed, who are preselected to be open to reconsideration of settled doctrines across a range of issues. We also have a Supreme Court that features Brett Kavanaugh, who might have personal reasons to want to see the freedom to say bad things about public figures subjected to some restraints. So these lawyers may be gambling that the time is ripe for a shocking victory against the body of existing precedent.

One final comment is that there are actually very good reasons for reconsidering the scope of the Sullivan doctrine, but this particular case does not raise those reasons for consideration. The original doctrine applied only to claims of libel by elected officials. In subsequent cases the scope of the doctrine was extended to include "public figures" such as actors, musicians, and athletes. People have become "involuntary public figures" by virtue of having been involved in events through no fault of their own, and in some cases the Sullivan principle has been extended to include essentially any matter of "public interest", which results in a near-total obviation of privacy rights that would otherwise apply. It is not a coincidence that no other constitutional court has chosen to follow our Supreme Court's lead on this issue. Constitutional courts in Australia, New Zealand, and Europe have considered the American Sullivan rule and rejected it, especially as applied beyond public officials.

In this case, of course, the plaintiffs are public officials, so this is what might be called a "core" Sullivan case. It is certainly highly unlikely that any lower federal court will take it upon itself to accept these arguments, but a request to reconsider settled doctrine is not aimed at the trial court, it is aimed directly at the Supreme Court. I find it very hard to imagine this Court overruling or altering Sullivan, but then a lot of things have happened in recent years that I would have thought unimaginable in quieter times.

On a larger note, we tend to forget that our system of constitutional law periodically goes through periods of fairly dramatic reinterpretation in which arguments that had previously been thought fringe become mainstream. To take only one example, for a century the idea that the Second Amendment secured an individual right to own guns was considered absurd, yet given the right constellation of political and legal developments we got the Heller decision.

It appears likely this argument doubles as a plea for President Donald Trump's political attention, in light of Trump's oft-expressed disdain for speech critical of public figures, (New York Times).

Colborn's argument in the brief, (pp 14-16), is reproduced below:

 I. The “Actual Malice” Requirement Should Be Reconsidered.

 In a recent concurrence to a denial of a petition for certiorari , United States Supreme Court Justice Clarence Thomas opined that it is time for the Court to reconsider its jurisprudence under New York Times v. Sullivan in an appropriate case. As explained below, this is an appropriate case. Therefore, while this argument is directed to the United States Supreme Court, it is stated briefly here in order to preserve the opportunity to seek review. The central point of Justice Thomas’ argument is that there was no First or Fourteenth Amendment basis for the “actual malice” rule adopted in New York Times v. Sullivan, supra, and that it was instead merely a policy that the Court instituted in response to the facts presented in the case. McKee v. Cosby, --- U.S. ---, 139 S.Ct. 675, 676 (2019) (Thomas, J., concurring).

The New York Times case came before the Court by way of a defamation complaint filed by a southern police official who claimed that his reputation had been injured by a political advertisement that decried alleged violations of civil rights. Some of the facts stated in the advertisement were conceded to have been false, and the New York Times admitted that it had not investigated any of the facts nor even consulted its own articles about the events described,  but instead relied on the reputations of individuals whose names were listed in the advertisement as supporting its content. 376 U.S. 257-61. After surveying writings by James Madison that attacked the Sedition Act of 1798, which criminalized criticism of government, the Supreme Court declared in New York Times that Madison’s writings supported the proposition that state libel laws prohibiting false defamation of government officials violate the First Amendment. 376 U.S. 273-77. But as Justice Thomas  pointed out in McKee, that conclusion represented a leap of logic:

 . . . constitutional opposition to the Sedition Act — a federal law directly criminalizing criticism of the Government — does not necessarily support a constitutional actual-malice rule in all civil libel actions brought by public figures.

139 S.Ct. at 682. Moreover, as Justice Thomas further explained, Madison’s writings both supported the view that public officials wronged by false statements should have redress under the law and opposed the concept of federally-dictated libel laws. Id. Yet, the Supreme Court has recognized that New York Times v. Sullivan has resulted in the federalization of libel law.  Id. at 676 (citing and quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 370 (1974)).

In adopting the policy that it embraced in  New York Times v. Sullivan, the Supreme Court  purported to seek a balance between the “breathing space”  that the Court contended must be afforded statements critical of public officials and the notion that the press should not be afforded wholesale license to inflict reputational harm at whim. 376 U.S. at 271-72 (internal 15 quotation and citation omitted). This case illustrates precisely the abuses that have proliferated as a result of the balance that the Court attempted to strike. Netflix asserts in this case that it may freely distribute defamatory statements that accuse a small-town police officer of  participating in a criminal conspiracy in the course of his work, exposing him to worldwide opprobrium, without the slightest responsibility or accountability for the truth of those statements, hiding under the shield of the First Amendment, but all the while reaping riches that it derived from destroying Plaintiff’s reputation.

Netflix argues that it has the judicially-sanctioned right to deprive Plaintiff of his good reputation and to transform it into a commodity that it can distort for its own profit. It is unlikely that the Supreme Court imagined that its ruling in New York Times v. Sullivan would be used in such a way. Plaintiff respectfully requests that the United States Supreme Court reconsider the actual malice standard to the extent that it is asserted to protect this conduct. ...
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Has Justice Thomas detected a leap of logic in Sullivan?

Colborn's response brief is reproduced in full below:

Colborn Response by on Scribd

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