Should the General Counsel at the University of Minnesota

Take a Sabbatical for a Refresher Course 

in Constitutional Law?

This question occurred to me as I read my fellow alum Michael McNabb's guest post on constitutional issues and the recent request of Mr. Rotenberg for the faculty to consider whether unfactual statements were protected by academic freedom.

Mr. McNabb writes in a guest post:

On April 8, 2011 the Academic Freedom & Tenure Committee reported that it was considering this question:

What is the faculty collective role in addressing factually inaccurate attacks on particular University faculty research activities?

The question was "framed by General Counsel Mark Rotenberg and referred to this committee by the Faculty Consultative Committee."  See the report of the AF & T Committee at http://blog.lib.umn.edu/bgleason/pt/2011/04/another_disturbing_discussion.html.

The report produced an outcry that the very process of producing a policy on such a question would have a chilling effect on free discussion of research activities at the University.  The First Amendment prohibits the government from abridging free speech.  A state university may not exercise prior restraint on public discussion.  Lewis v. St. Cloud State University, 693 N.W.2d 466 (Minn. App. 2005).  Perhaps the AF & T Committee will quickly complete its work with the recognition that neither the faculty nor the administration has the authority to restrict speech at a state university (of all places). 

However, if the committee continues with attempting to develop a policy that would authorize sanctions to be imposed by a state university on statements made by a professor, then the commitee needs to review some principles of constitutional law.

The leading case in this area is New York Times Co. v. Sullivan, 376 U.S. 254  (1964).  On March 29, 1960 the New York Times published a full page advertisement that described a "wave of terror" against the civil rights movement in the South.  Some of the statements were not accurate descriptions of events in Montgomery, Alabama.  Sullivan, the supervisor of police in Montgomery, sued the newspaper for libel.  A state court jury in Montgomery awarded Sullivan $500,000 in damages.  The verdict was affirmed on appeal by the Alabama Supreme Court.

The United States Supreme Court reversed the decision.  The fact that the litigation was between private parties did not insulate the Alabama law on libel from constitutional review:

The test is not the form in which state power has been exercised but, whatever the form, whether such power has in fact been exercised.

376 U.S. at 265 (emphasis added).

Then the Court turned to the merits of the case:

Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. . . . The question is whether [the advertisement] forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent [Sullivan].

376 U.S. at 271.

The Supreme Court then answered that question:

The constitutional guarantees require, we think, a federal rule that 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.

376 U.S. at 280.

In subsequent cases the Supreme Court applied the actual malice standard to public figures and to limited purpose public figures.  See, Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) and Gertz v. Robert Welch Inc., 418 U.S. 323 (1974).

The Court discussed the rationale for the actual malice standard in Gertz:

The first remedy of any victim of defamation is self-help--using available opportunities to contradict the lie or correct the error and thereby minimize its adverse impact on reputation.  Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to conteract false statements than priviate individuals normally enjoy.

418 U.S at 344. 

The Court also described a limited purpose public figure as an individual who "voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues."   418 U.S. at 351. 

The Minnesota Supreme Court applied these cases in Chafoulias v. Peterson, 668 N.W.2d 642 (Minn. 2003).  The state supreme court has also recognized a conditional privilege for communications made on a proper occasion, from a proper motive, and based on reasonable cause.  When the communication is made in good faith, actual malice must be proven before there can be any recovery of damages for defamation.  Stuempges v. Parke, Davis & Co., 297 N.W.2d 252 (Minn. 1980).

 The same legal principles would apply to any attempt by the faculty or administration of a state university to impose sanctions on a professor for his or her participation in a public debate.

POSTSCRIPT:  A TIMELINE

November 23, 2010.  Eight professors and bioethicists submit a letter to the Regents requesting an independent investigation into the death of Dan Markingson while he was participating in a clinical trial at the University.  See Faculty Letter at http://ptable.blogspot.com/2010/12/university-of-minnesota-faculty-letter.html#links.

December 10, 2010.  General Counsel Mark Rotenberg meets with the Regents regarding the request.  See U of M Attorney at http://ptable.blogspot.com/2010/12/dan-markingsons-suicide-u-of-m-attorney.html#links.

February 7, 2011.  Regents deny request for independent investigation.  See Regents Play Innocent at http://ptable.blogspot.com/2011/02/regents-play-innocent-regents-are.html#links.

February 24, 2011.  General Counsel Rotenberg submits to the FCC the following question:  What is the faculty's collective role in addressing factually incorrect attacks on particular U faculty research activities?  FCC refers the question to the AF & T Committee.  See the February 24 report of the FCC at http://conservancy.umn.edu/bitstream/101836/1/11_02_24FCC.pdf.

 Michael W. McNabb

Attorney at Law