In December 1980 and February 1981, Robert McDonald, a businessman in North Carolina, wrote to Ronald Reagan about a lawyer in that state, David I. Smith, who was being considered for appointment as U.S. attorney for the Middle District of North Carolina. Copies of the first letter were sent to Edwin Meese, chairman of the Transition Team, and Reps. Barry Goldwater Jr. and Jack Kemp. In addition to Meese and Goldwater, Sen. Jesse Helms and FBI Director William Webster received copies of the second letter. There is no evidence that copies of either letter went to the press or were otherwise made public.
The clear, urgent intent of the letters was to persuade the president that David Smith was unfit to serve as a U.S. attorney. The overall complaint was that Smith -- as a deputy district attorney, private lawyer and Superior Court Judge -- had shown "tremendous lack of regard . . . for the law, the civil rights of individuals, and our system of justice in general." Robert McDonald also listed specific alleged improprieties, sometimes citing court records and, in other cases, listing the names and addresses of lawyers who, McDonald said, would verify his charges.
David Smith did not get the appointment; and ascribing that acute disappointment to Robert McDonald's epistolary skills, he has sued McDonald for libel. Smith wants a cool million for compensatory and punitive damages.
What makes this so distinctive a defamation suit is that the defendant claims he has absolute immunity from an action for libel. Not because of the free-speech clause in the First Amendment. McDonald is aware the Supreme Court has ruled that a critic of public officials or public figures can be sued under the free-speech clause. And they will lose if it is proved they knowingly wrote falsely or went ahead with reckless disregard as to whether their charges were true or not ("actual malice").
But McDonald says he has a stronger shield to protect him from a libel action. He cites another section of the First Amendment: ". . . the right of the people . . . to petition the government for a redress of grievances."
On March 20, the Supreme Court will listen, for the first time, to oral arguments as to whether the petition clause does indeed immunize citizens from fear of libel suits if they bring their criticisms of public officials or those seeking office to the proper government authorities. In an amicus brief, the American Civil Liberties Union points out that, after all, public officials themselves have absolute immunity from civil libel suits on the basis of anything they say "in connection with judicial proceedings, legislative proceedings, and quasi-judicial administrative proceedings." Also protected from libel suits "are statements made to and by law enforcement offices regarding suspected criminal activity."
Why, then, should not the rest of us be able to criticize, by petition, those who conduct our affairs without our having to worry about paying dearly for exercising that constitutional right? Did not James Madison say that "the censorial power is in the people over the government, not the government over the people"?
Those questions were answered affirmatively by a Vermont court in the 1802 case, Harris v. Huntington. The defendant had filed a petition with the legislature urging it to deny the reappointment of a justice of the peace and giving particulars. He was sued for libel by that justice of the peace, and the court decided that, under the common law and the Vermont Bill of Rights, "(a)n absolute and unqualified immunity from responsibility . . . is indispensable (in) the right of petitioning the supreme power for the redress of grievances; for it would be an absurd mockery in a government to hold out this privilege to its subjects and then punish them for the use of it."
In the 1985 case of Robert McDonald v. David I. Smith, however, the Federal District Court and the Fourth Circuit Court of Appeals, being farther removed than the Vermont court from the sense of themselves that the Revolution had given the people, denied absolute immunity to Rob McDonald. The lower court said the case has to go to trial, in which Smith, in order to win, will have to prove that McDonald wrote to the president about him "with actual malice."
If the Supreme Court agrees with the lower courts, the costs to McDonald of deposition as well as of the actual trial can run to at least $40,000, even if McDonald defends himself successfully. It is difficult to imagine that the Framers had that kind of price in mind for the right of petition.
After all, in 1774, the Declaration and Resolves of the First Continental Congress declared that the colonists "have a right to . . . consider of their grievances, and petition the King; and that all prosecutions . . . for the same are illegal."