NO. 21-802
`IN THE
`Supreme Court of the United States
`
`CORAL RIDGE MINISTRIES MEDIA, INC., d/b/a
`D. JAMES KENNEDY MINISTRIES,
`Petitioner,
`
`v.
`SOUTHERN POVERTY LAW CENTER,
`Respondent.
`
`
`
`
`
`On Petition for Writ of Certiorari to the United States
`Court of Appeals for the Eleventh Circuit
`
`BRIEF OF THE FAMILY ACTION COUNCIL OF
`TENNESSEE AND CONSTITUTIONAL
`GOVERNMENT DEFENSE FUND AS AMICI
`CURIAE IN SUPPORT OF PETITIONER
`
`J. THOMAS SMITH
` Counsel of Record
`DAVID E. FOWLER
`Constitutional Government Defense
`Fund
`1113 Murfreesboro Road, No. 106-167
`Franklin, TN 37064
`(615) 591-2090
`jthomsmith@CGDFund.com
`
`Counsel for Amici Curiae
`
`
`IN THE
`Supreme Court of the United States
`
`CORAL RIDGE MINISTRIES MEDIA, INC., d/b/a
`D. JAMES KENNEDY MINISTRIES,
`Petitioner,
`
`v.
`SOUTHERN POVERTY LAW CENTER,
`Respondent.
`
`
`
`
`
`On Petition for Writ of Certiorari to the United States
`Court of Appeals for the Eleventh Circuit
`
`BRIEF OF THE FAMILY ACTION COUNCIL OF
`TENNESSEE AND CONSTITUTIONAL
`GOVERNMENT DEFENSE FUND AS AMICI
`CURIAE IN SUPPORT OF PETITIONER
`
`J. THOMAS SMITH
` Counsel of Record
`DAVID E. FOWLER
`Constitutional Government Defense
`Fund
`1113 Murfreesboro Road, No. 106-167
`Franklin, TN 37064
`(615) 591-2090
`jthomsmith@CGDFund.com
`
`Counsel for Amici Curiae
`
`
`
`i
`
`TABLE OF CONTENTS
`TABLE OF AUTHORITIES ....................................... ii
`STATEMENT OF INTEREST OF AMICI
`CURIAE ................................................................. 1
`SUMMARY OF ARGUMENT ..................................... 3
`ARGUMENT ................................................................ 4
`I. The Ninth Amendment provides a rule of
`construction for the Bill of Rights ......................... 4
`precludes
`an
`II. The Ninth Amendment
`interpretation of the freedom of speech and of
`the press that would deny or disparage the
`fundamental right at common law to be secure
`in one’s reputation .................................................. 5
`CONCLUSION ............................................................ 8
`
`
`
`
`
`ii
`
`TABLE OF AUTHORITIES
`
`Cases:
`
`Berisha v. Lawson,
` 141 S. Ct. 2424 (2021) .............................................. 6
`
`Gamble v. United States,
` 139 S. Ct. 1960 (2019) .............................................. 4
`
`Gertz v. Robert Welch, Inc.,
` 418 U. S. 323 (1974) ................................................. 6
`
`Marbury v. Madison,
` 5 U.S. 137 (1803) ...................................................... 7
`
`McKee v. Cosby,
` 139 S. Ct. 675 (2019) ............................................ 3, 6
`
`New York Times v. Sullivan,
` 376 U.S. 254 (1964) ........................................ passim
`
`Ramos v. Louisiana,
` 130 S. Ct. 1390 (2020) ...................................... 4, 6, 7
`
`Roe v. Wade,
` 410 U.S. 113 (1973) .................................................. 2
`
`Smith v. Alabama,
` 124 U.S. 465 (1888) .................................................. 4
`
`Constitutional Provisions:
`
`U.S. Const. Amend. IX ................................................ 4
`
`
`
`iii
`
`Other Authorities:
`
` 1
`
` William Blackstone, Commentaries on the Laws
`of England (1765) ................................................. 5, 7
`
`
`Nelson, Adjudication in the Political Branches,
`107 Colum. L. Rev. 559 (2007) ................................. 3
`
`
`
`1
`
`STATEMENT OF INTEREST
`OF AMICI CURIAE1
`The Family Action Council of Tennessee, Inc., is a
`state-based non-profit organization that seeks to
`educate citizens and state legislators on public policies
`that address most closely who we are as human beings.
`Constitutional Government Defense Fund is a
`Tennessee-based non-profit litigation organization
`whose efforts aim
`to vindicate
`the historic
`constitutional role and jurisdiction of the state to
`protect innocent human life, the institution of
`marriage and family, and other community interests
`served by traditional state police power regulations.
`Framing Amici’s educational and advocacy work is
`the anthropology acknowledged and resident in
`customary and natural law, respectively. Amici seek
`to urge citizens, policy makers, and judicial bodies in
`Tennessee to give proper regard to the fundamental
`and absolute rights of persons at common law.
`Consequently, when this Court in its decisions
`forecloses or defeats common law principles and
`standards by operation of the Court’s constitutional
`rights interpretations, as it did in New York Times v.
`
`
`1 Pursuant to Rule 37.6, the undersigned certifies that no counsel
`for a party authored any part of this brief, and no person other
`than amici, their members, or their counsel made a monetary
`contribution intended to fund its preparation or submission.
`Amici curiae provided notice of intent to file this brief to all
`parties, and all parties have consented to the filing of this brief.
`
`
`
`2
`
`Sullivan, 376 U.S. 254 (1964), the legal context for
`Amici’s respective missions is compromised.2
`Amici are sympathetic to the concern behind
`petitioner’s claim in this case, having had their own
`uninvited experience with respondent Southern
`Poverty Law Center (SPLC). On June 12, 2017, SPLC
`published in its “Hate Watch” report “a list of
`activities and events of anti-LGBT organizations.”
`Therein SPLC described in detail the activities of
`amici Family Action Council of Tennessee and the
`Constitutional
`Government
`Defense
`Fund,
`condemning their efforts to promote the natural
`family and religious liberty. The SPLC’s report of
`Amici’s activities was sandwiched between reports on
`the
`activities
`of
`two
`other
`public
`policy
`organizations—American Family Association and the
`Family Research Council—that SPLC publicly
`describes as “hate groups.”
`
`
`
`
`2 Another prominent example of a somewhat different kind that
`eliminated state common law rights and authority is Roe v. Wade,
`410 U.S. 113 (1973) with its interpretation of persons and liberty
`in the Fourteenth Amendment’s Due Process Clause to deny the
`fundament right to life at common law.
`
`
`
`3
`
`SUMMARY OF ARGUMENT
`The long-neglected Ninth Amendment to the
`Constitution presents in its single sentence a vital
`standard of interpretation informing both the scope
`and character of the provisions of the Bill of Rights.
`The Ninth Amendment instructs that enumerated
`constitutional rights shall not be interpreted to
`diminish the unenumerated rights retained by the
`people.
`The unfortunate absence of attention in this
`Court’s jurisprudence to the Ninth Amendment’s rule
`of construction has enabled the Court to misconstrue
`enumerated rights in a way serving to eliminate
`common law rights. In New York Times v. Sullivan,
`376 U.S. 254 (1964), the Court interpreted the First
`Amendment’s freedom of speech and of the press in a
`manner effectively removing “common-law protections
`for
`the
`‘core private
`righ[t]’ of a person’s
`“‘uninterrupted enjoyment of . . . his reputation.’””
`McKee v. Cosby, 139 S. Ct. 675, 679 (2019) (Thomas,
`J., concurring) (quoting Nelson, Adjudication in the
`Political Branches, 107 Colum. L. Rev. 559, 567 (2007)
`(quoting 1 Blackstone *129)).
`The Court should remediate this error of
`interpretation, grant the Ninth Amendment its
`rightful guiding
`role
`in
`the Court’s
`rights
`jurisprudence, and restore the fundamental common
`law right of a person to defend and vindicate in law his
`reputation against defamation.
`
`
`
`
`
`4
`
`ARGUMENT
`The Ninth Amendment provides a rule of
`I.
`construction for the Bill of Rights.
`The Ninth Amendment establishes that “the
`enumeration of certain rights herein shall not be
`construed to deny or disparage other rights retained
`by the people.” U.S. Const. amend. IX.
`Because the Ninth Amendment’s text bespeaks a
`common group of rights divided only by whether they
`are enumerated in the Constitution, it implies that all
`the rights possessed by the people share a common
`provenance. This, in turn, suggests that both the
`enumerated rights and the “others retained by the
`people” are to carry forward the substantive meaning
`they had under the source of law from which they were
`derived, namely, the common law.
`The common law background for the Constitution’s
`provisions, secured by the Ninth Amendment, is a fact
`this Court often acknowledges and on which it relies.
`“The interpretation of the Constitution of the United
`States is necessarily influenced by the fact that its
`provisions are framed in the language of the English
`common law, and are to be read in the light of its
`history.” Smith v. Alabama, 124 U.S. 465, 478 (1888).
`Thus, this Court has continued to turn to the common
`law to interpret the Constitution’s provisions. See, e.g.,
`Ramos v. Louisiana, 130 S. Ct. 1390
`(2020)
`(investigating the common law right to trial by jury to
`interpret the constitutional right to jury trial); Gamble
`v. United States, 139 S. Ct. 1960, 1964 (2019)
`(analyzing the common law to determine the meaning
`of “same offense” in the Fifth Amendment).
`
`
`
`5
`
`This the Court must also do regarding the
`relationship between the enumerated rights and the
`unenumerated and retained rights of the people
`carried forward from the common law by the Ninth
`Amendment.
`II.
`The Ninth Amendment precludes an
`interpretation of the freedom of speech and of
`the press that would deny or disparage the
`fundamental right at common law to be secure
`in one’s reputation.
`Integrity in reputation is the predicate to social
`opportunity of every sort. As Blackstone summarized,
`“The security of his reputation or good name from the
`arts of detraction and slander, are rights to which
`every man is entitled, by reason and natural justice;
`since without these it is impossible to have the perfect
`enjoyment of any other advantage or right.” 1 William
`Blackstone, Commentaries on the Laws of England
`*134.3
`Yet in New York Times v. Sullivan, this Court
`promulgated an unprecedented rule that altered the
`ancient and fundamental common law right to
`vindicate one’s security in reputation. The Sullivan
`ruling, along with its progeny, have declared that
`defamed public figures must prove not only the falsity
`of the reproach on their character, but that the
`
`3 “Personal security” was one of the three absolute rights at
`common law and “the preservation of these [three] inviolate, may
`justly be said to
`include the preservation of our civil
`immunities… .” 1 Blackstone’s Commentaries *125. “The right of
`personal security consists in a person’s legal and uninterrupted
`enjoyment of his life, his limbs, his body, his health, and his
`reputation.” Id. (emphasis added).
`
`
`
`6
`
`defendant acted with an interior and elusive “‘actual
`malice’—that is, with knowledge that it was false or
`with reckless disregard of whether it was false[.]” 376
`U.S. at 280; Gertz v. Robert Welch, Inc., 418 U. S. 323,
`351 (1974) (expanding Sullivan’s “new standard to
`those who have achieved ‘pervasive fame or notoriety’
`and those ‘limited’ public figures who ‘voluntarily
`injec[t]’ themselves or are ‘drawn into a particular
`public controversy.’”)
` The common law standard for libel operable when
`both First and Fourteenth Amendments were ratified
`knew nothing of Sullivan’s “actual malice” gloss; it
`“did not require public figures to satisfy any kind of
`heightened liability standard as a condition of
`recovering damages.” McKee v. Cosby, 39 S. Ct. at 678.
`(Thomas, J. concurring in denial of certiorari).
`Sullivan’s novel deconstruction of the right to be
`secure in one’s reputation imposed on such plaintiffs
`the burden of proving an adversary’s condition of mind,
`effectively putting out of reach the common law right
`to vindicate one’s reputation. See Pet.Br. at 17.
`As Justice Gorsuch recently observed, Sullivan’s
`interpretive innovation has “evolved into a subsidy for
`published falsehoods on a scale no one could have
`foreseen,” and “has come to leave far more people
`without redress than anyone could have predicted.”
`Berisha v. Lawson, 141 S. Ct. at 2424 (Gorsuch, J.,
`dissenting from denial of certiorari).
`Of course, the problem with the Sullivan rule is not
`that its “cost-benefit analysis was too skimpy,” Ramos,
`130 S. Ct. at 1402, but that it “subjected the ancient
`guarantee of” security in one’s reputation, as entailed
`in the unenumerated right of personal security, to a
`
`
`
`7
`
`“functionalist assessment in the first place.” Id.4 It is
`not the province of the federal judiciary to “distinguish
`between the historic features of common law” that
`“serve ‘important enough’ functions” to be deemed
`worthy of retaining and “those that don't.” Id. at 1400.
`When the American people ratified the Bill of
`Rights, including the Ninth Amendment with its
`structuring conception of law and rights, “they weren't
`suggesting fruitful topics for future cost-benefit
`analyses. They were seeking to ensure that their
`children’s children would enjoy the same hard-won
`liberty they enjoyed.” Id. at 1402.
`The Ninth Amendment forecloses to the Court any
`interpretive authority
`to determine
`that
`the
`fundamental common law right to personal security in
`reputation should be “disparaged or denied” in order
`to facilitate a substantive expansion of enumerated
`First Amendment rights.
`Though “[i]t cannot be presumed that any clause in
`the constitution is intended to be without effect,”
`Marbury v. Madison, 5 U.S. 137, 174 (1803), this Court
`has never ruled on the Ninth Amendment’s relevance
`to
`its methods
`of
`construing
`enumerated
`constitutional rights. This case presents just such an
`opportunity, for Sullivan’s mistake derived precisely
`
`
`4 “Personal security” was one of the three absolute rights at
`common law and “the preservation of these inviolate, may justly
`be said to include the preservation of our civil immunities…” 1
`Blackstone’s Commentaries *129. “The right of personal security
`consists in a person’s legal and uninterrupted enjoyment of his
`life, his limbs, his body, his health, and his reputation.” Id.
`
`
`
`
`8
`
`from neglect of the Ninth Amendment’s rule of
`construction.
`
`CONCLUSION
`For the foregoing reasons, the petition should be
`granted.
`
`
`Respectfully submitted,
`
`J. THOMAS SMITH
` Counsel of Record
`DAVID E. FOWLER
`Constitutional Government Defense Fund
`1113 Murfreesboro Road, No. 106-167
`Franklin, TN 37064
`(615) 591-2090
`jthomsmith@CGDFund.com
`
`
`December 28, 2021
`
`
`
`
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