About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

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).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 3,000 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most