Schatz v. Republican State Leadership Comm.

• Citation: 669 F.3d 50,40 Media L. Rep. 1417
• Decision Date: 10 February 2012
• Docket Number: No. 11–1437.,11–1437.
• Parties: James M. SCHATZ, Plaintiff, Appellant, v. REPUBLICAN STATE LEADERSHIP COMMITTEE; Republican State Leadership Committee–Maine PAC; Crossroads Media LLC; Patti Heck; Michael Dubke; Scott S. Ward; Ben Cannatti; Arena Communications LLC; Ohman Holdings LLC; Valcarce Holdings LLC; Arena Holdings Inc.; The Grassy Knoll LLC; Richard J. Ohman; Peter J. Valcarce, Defendants, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

40 Media L. Rep. 1417
669 F.3d 50

James M. SCHATZ, Plaintiff, Appellant,
v.
REPUBLICAN STATE LEADERSHIP COMMITTEE; Republican State Leadership Committee–Maine PAC; Crossroads Media LLC; Patti Heck; Michael Dubke; Scott S. Ward; Ben Cannatti; Arena Communications LLC; Ohman Holdings LLC; Valcarce Holdings LLC; Arena Holdings Inc.; The Grassy Knoll LLC; Richard J. Ohman; Peter J. Valcarce, Defendants, Appellees.

No. 11–1437.

United States Court of Appeals, First Circuit.

Heard Oct. 3, 2011.Decided Feb. 10, 2012.

[669 F.3d 51]

Barry K. Mills, with whom Hale & Hamlin, LLC was on brief, for appellant.

Timothy F. Brown, with whom Arent Fox LLP, Paul W. Chaiken, and Rudman & Winchell were on brief, for appellees Republican State Leadership Committee, Republican State Leadership Committee–Maine PAC, Scott S. Ward, and Ben Cannatti.

Andrew M. Friedman, with whom Patton Boggs LLP, Anne Birgel Cunningham, Alexia Pappas, and Verrill Dana, LLP were on brief, for appellees Crossroads Media LLC, Patti Heck, Michael Dubke, Arena Communications LLC, Valcarce

[669 F.3d 52]

Holdings LLC, Arena Holdings Inc., The Grassy Knoll LLC, Richard J. Ohman, and Peter J. Valcarce.

Before LYNCH, Chief Judge, HOWARD and THOMPSON, Circuit Judges.

THOMPSON, Circuit Judge.

PROLOGUE

Campaigning for public office sometimes has the feel of a contact sport, with candidates, political organizations, and others trading rhetorical jabs and sound-bite attacks in hopes of landing a knockout blow at the polls. It is not for the thin-skinned or the faint-hearted, to use two apropos clichés. See Monitor Patriot Co. v. Roy, 401 U.S. 265, 275–76, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971). And because political speech is the life-breath of democracy, see Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 223, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989), the First Amendment—applied to the states via the Fourteenth—bars public figures from recovering damages under state defamation laws unless they show that the defamer acted with “actual malice,” see New York Times Co. v. Sullivan, 376 U.S. 254, 279–80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), legalese that might suggest ill will or evil motive to the uninitiated but really means knowledge of falsity or reckless disregard for the truth, see Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 509–11, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991).¹ Cases define “reckless disregard” variously as a defamer's having “ ‘serious doubts' ” about a statement's falsity, or “actually” having “a ‘high degree of awareness of ... probable falsity,’ ” or suspecting falsity and purposefully—not just negligently—avoiding the truth. Harte–Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 688, 692, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989) (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), and Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), respectively).

All this makes it quite obvious that defamation law does not require that combatants for public office act like war-time neutrals, treating everyone evenhandedly and always taking the high road. Quite the contrary. Provided that they do not act with actual malice, they can badmouth their opponents, hammering them with unfair and one-sided attacks—remember, speaking out on political issues, especially criticizing public officials and hopefuls for public office, is a core freedom protected by the First Amendment and probably presents “the strongest case” for applying “the New York Times rule.” See id. at 666 n. 7, 686–87, 109 S.Ct. 2678. And absent actual malice, more speech, not damages, is the right strike-back against superheated or false rhetoric. See id. at 686–87, 109 S.Ct. 2678.

Today's appeal—targeting speech critical of a candidate's performance in public office and challenging the dismissal of his defamation-based complaint for failure to state a claim—brings these principles into bold relief. Finding no reversible error in the judge's careful opinion, we affirm. The story follows.

HOW IT ALL BEGAN

Having lost his bid for a Maine Senate seat in 2010, Democratic politician James Schatz brought this diversity suit (governed, all agree, by Maine law) against a slew of defendants for defamation libel,

[669 F.3d 53]

intentional infliction of emotional distress, and publicly placing him in a false light. Our case caption lists the complete cast of defendants. For simplicity's sake, we follow the parties' lead and refer to the defendants, collectively, as the “RSLC,” which is short for the Republican State Leadership Committee.

The gist of Schatz's operative complaint was that the RSLC opposed his candidacy and supported his opponent's with flyers, brochures, and radio and TV ads days before the election that conjured up imaginary wrongs that he had supposedly done as a selectman for the town of Blue Hill. He attached copies of the offending circulars to his complaint, and we quote from one of them, which is representative of the others.² Emblazoned on the front are these words:

No Rockets' Red Glare,

No Bursting in Air.

Thanks to JIM SCHATZ ...

(Emphases removed.) And on the back:

Jim Schatz voted to cancel the $10,000 fireworks celebration for the Fourth of July—blaming it on a bad economy.

However, before canceling the show, Schatz and the Blue Hill Selectmen gave 10,000 taxpayer dollars to a political organization.

It's wrong for Schatz to give your money to a political organization, and it was wrong for Schatz to cancel your 4th of July celebration.

On November 2, Vote against Jim Schatz, because he's wrong for Maine.

(Emphases removed.)

A fine-print footnote in the flyers references two newspaper articles as the source for these assertions, and Schatz appended both items to his complaint too. The first, from the July 2, 2009 edition of the Bangor Daily News, chronicled the financial difficulties confronting cash-strapped Maine towns in funding fireworks for the 2009 Independence Day celebration:

There will be no fireworks display in Blue Hill this Fourth of July due to the poor economic climate, but business is booming elsewhere as municipalities and private groups have worked hard to raise funds to pay for the fire that lights up the nation's birthday.

It continued:

For the past two years the Hancock County town has fronted the money for the fireworks display for the Fourth to Remember celebration and paid the funds back through donations. There's about $10,000 in the account, but the selectmen and the fireworks committee opted not to spend the funds this year.

And it noted:

“Given the economy, we felt that in good conscience we couldn't do it this year,” said Selectman Jim Schatz. “We thought that to spend that much money on something that will light things up for a few seconds and then is gone was not the thing to do. Unless we were sure we could pay the town back, we didn't want to pull the trigger on it this year.”

The second piece, from the August 9, 2009 edition of the Kennebec Journal, highlighted how local communities “are being asked to help roll back school consolidation.” It started off:

Starved for cash, the advocates pressing for a repeal of Maine's school district consolidation law are taking their fundraising

[669 F.3d 54]

appeal to the towns directly affected by the sweeping state mandate.

The Maine Coalition to Save Schools, which had $140 on hand at the beginning of July, is seeking campaign contributions from municipalities that turned down district mergers or are unhappy with the consolidation arrangements their voters approved.

It added:

Blue Hill approved a $3,000 contribution to the effort in January 2008 and $2,000 more in July of last year. James Schatz, a Blue Hill selectman and a state representative, said the town recently paid $5,000 to the coalition as the last installment of a $10,000 commitment.

And Danforth and Deer Isle residents each approved taking $3,000 out of town coffers to boost the effort in January and October of last year, respectively.

After noting “Monmouth selectmen don't have the power to contribute town funds to a political cause,” it informed:

While it's legal for municipalities' legislative bodies to dig into taxpayer funds to support political causes, the Maine Municipal Association, the lobbying arm for Maine cities and towns, advises against it.

“Expressing one's view is one thing,” association spokesman Michael Starn said. “Expending town funds to support their view is much more problematic.”

A municipality should generally take a position of “more fact gathering and factual dissemination, not advocacy as individual communities,” Starn said.

But municipal officials, he noted, are free to express their opinions on pending political matters, and a town's legislative body can approve resolutions supporting or opposing particular causes.

“You do have a responsibility as a government official to approach this whole advocacy thing in a very responsible way,” Starn said.

And, finally, it reported:

According to [Dick] Dyer, [a repeal advocate,] there's no reason that can't involve committing town funds to advancing a political cause.

Town officials “make decisions all the time that are political in nature that involve spending taxpayers' dollars,” he said.

Schatz, the Blue Hill selectman, acknowledged that questions come up when municipalities contribute to political causes.

But “a lot of...