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74 Iowa L. Rev. 303 (1988-1989)
"Libelous" Petitions for Redress of Grievances-Bad Historiography Makes Worse Law

handle is hein.journals/ilr74 and id is 317 raw text is: Libelous Petitions for Redress of Grievances-Bad Historiography Makes Worse Law Eric Schnapper* In McDonald v. Smith1 the Supreme Court faced the type of challenge long threatened by the Reagan administration-an argument that one of the Warren Court's landmark decisions, together with much of its intellec- tual progeny, was inconsistent with the original intent of the framers of the Constitution. The decision called into question was New York Times v. Stillivan,2 which had held that the first amendment permitted state courts to award libel judgments to public figures only if there was clear proof that the libel defendant knew that his statements were false, or had acted in reckless disregard of the truth of those remarks.3 New York Times v. Sullivan had long been a favorite target of conservative theorists.4 In McDonald v. Smith, however, the historical criticism came not from the libel plaintiff, but from the defendant, who argued that New York Times v. Sullivan provided too little constitutional protection, rather than too much, when the alleged libel was contained in a petition for redress of grievances. The litigation in McDonald arose as a result of the proposed selection of David Smith as United States Attorney for North Carolina. Robert McDonald, the operator of several child-care centers in the state, wrote letters opposing Smith's selection to then President-elect Reagan, as well as to Presidential adviser Edwin Meese, the Director of the FBI, and four members of Congress.5 McDonald accused Smith of violating the civil rights of various individuals while a Superior Court Judge, fraud, and violations of professional ethics,6 and referred to a number of specific incidents which McDonald claimed substantiated his allegations.7 After another candidate was selected as U.S. Attorney, Smith sued McDonald for libel, alleging that McDonald's charges had cost him the job, injured his professional reputation, and caused him humiliation, embarrassment, *Assistant Counsel, NAACP Legal Defense and Educational Fund, Inc.; Lecturer in Law, Columbia University. B.A. 1962, M.A. 1963, Johns Hopkins University; B. Phil. 1965, Oxford University; LL.B. 1968, Yale University. In this Article, the capitalization of material quoted from seventeenth- and eighteenth-century English cases and treatises has been changed to conform with modern American English usage. 1. 472 U.S. 479 (1985). The only commentary on McDonald is in Smith, Shall Make No Law Abridging...: An Analysis of the Neglected, But Nearly Absolute, Right of Petition, 54 U. CIN. L. REv. 1153 (1986). 2. 376 U.S. 254 (1964). 3. Id. at 279-80. 4. See B. FEiN, NEW YORK TuiEs v. SuLLivA,: AN OBSTACLE TO ENLIGHTENED PUBLIc DiscouRsE AND GOVERNM.-ENT RESPONsIVENESS TO THE PEOPLE 3-6 (Am. Legal Found. 1984). 5. McDonald, 472 U.S. at 481 & nn.1-2. 6. Id. at 481. 7. Joint Appendix at 8-16, McDonald v. Smith, 472 U.S. 479 (1985) (No. 84-476).

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