Some time ago, we covered Judge Singhal's grant of summary judgment to CNN in the defamation lawsuit filed against the network by Alan Dershowitz. The 11th Circuit just drove another nail into the lawsuit's coffin, affirming that order. The Court held there was no evidence that the reporters had spoken with actual malice (to the contrary, the Court noted that the evidence indicated that the reporters believed in the truth of their statements).
Perhaps more interesting, though, were the concurring opinions, written by Judges Lagoa and Wilson, which discussed the New York Times Co. v. Sullivan standard applicable to defamation cases. In short, Judge Lagoa doesn't like it, Judge Wilson does.
Opinion here.
What was Dershowitz's point anyway? Was it that withholding monies from Ukraine that had been appropriated unless Ukraine announced an investigation into Biden (which would help Trump's electoral chances) was not a crime because Trump verily believed his winning an election was a good thing and thus there is insufficient criminal motive?
ReplyDeleteJudge Wilson likes abiding by precedent. The rule of law doesn’t really benefit from the whiplash this SCOTUS is handing out by tossing out precedent after precedent. The hubris it takes to say that all those justices have been wrong. And only this current crew can say what the law is. Sound familiar?
ReplyDeleteJudge Grant apparently was the only adult in the room. With all due respect to Judges Lagoa and Wilson, whether you, as a lower-court judge, believe a certain SCOTUS precedent should remain (in Wilson's case) or should be overruled (in Lagoa's case) is irrelevant. The same goes for many other lower-court judges who, for whatever reason, cannot resist the urge always to express what team they're on. Go write a law-review article (or start a Substack) if you want to express your views. Alas, Article III judges aren't known for their humility.
ReplyDeleteJudges should address in their rulings, the issues that were briefed and argued. All the judges here—USDC and 11th Circuit—properly followed precedent and addressed the issues and arguments raised. Sullivan was a big part of the case.
DeleteYes, judges should address the parties' arguments. Yes, Sullivan "was a big part of the case." Also yes, Sullivan is "good" law -- in the sense that it has not been overruled, not in the sense of whether it was correctly decided -- which is all a lower-court judge needs to know in order to decide a case. But lower-court judges don't need to do, and I would suggest is inappropriate to do, is gratuitously provide their views on whether SCOTUS precedent is correctly decided or not. It is one thing, as Judge Posner famously did in an antitrust case, to drop a line about how bad one of SCOTUS's precedents was (SCOTUS took up that very case and overruled its precedent). It is quite another to write lengthy separate opinions criticizing SCOTUS precedent.
DeleteFunny how you view Posner’s opinion in Khan as “drop a line”. He wrote page after page, and called the SCOTUS opinion "moth-eaten", "wobbly", and "unsound". But I guess it’s ok so long as you’re in favor of it.
DeleteThe reality is that if the judges don’t carefully address each argument in federal court, they get a Motion for Reconsideration at the USDC level or an en banc Motion at the appellate level. And the important thing is whatever the opinion, it be respectful and follow vertical precedent. That’s what happened here. Posner’s words on the other hand are far from respectful.
I'd encourage you to re-read Khan. The reason that he addressed existing SCOTUS precedent was that the appellant argued that it was no longer good law: "State Oil's main argument is that Albrecht is no longer the view of the Supreme Court." And you're right, in dismissing that assertion, Posner went on to argue why Albrecht was poorly reasoned and should be overruled. By contrast, nobody could seriously make that claim about Sullivan (i.e., that it is no longer the view of SCOTUS; at most, two justices have expressly called for its overruling).
DeleteBy the way, I'm not saying that Sullivan was correctly decided; my view is that it was not. My point is that lower-court judges should (again, very respectfully) stay in their lane.
You name a better way to get a promotion to SCOTUS from a Circuit spot and, well, I’m sure they’d use that way also. The undisputed leader in this innovative field of providing the conservative SCOTUS justices with job applications/templates for future rulings is Ho, though he may be too obviously thirsty for it to work.
ReplyDelete