Fans of the First Amendment should welcome state Supreme Court Justice Anita Earls’ pursuit of a legal ruling affirming her right to speak on matters of public interest.
Yet endorsement of Earls’ free-speech rights does not mean support for the content of her speech. One recent court case reminds us that Earls’ commentary can provoke legitimate criticism. A colleague labeled her assessment of that case as “hyperbolic,” “toxic,” and even “a bit unhinged.”
Earls attracted a significant amount of attention for her Aug. 29 federal lawsuit against the state Judicial Standards Commission. The suit contends that a formal investigation into Earls’ comments in an online interview attempts to “chill” her speech.
Regardless of whether she wins in court, Earls should not have to fear that her words will lead to undue harassment or punishment from the state court system.
Much less attention has surrounded an action that took place at the state Supreme Court three days after Earls filed suit. Without fanfare, the court announced on Sept. 1 the dismissal of Walker v. Wake County Sheriff’s Department. The case had been scheduled for oral arguments on Nov. 7.
The Walker dispute involved the “fair report privilege.” That’s a defense media outlets use against defamation lawsuits.
The plaintiff and the media outlet reached a settlement in the case in mid-August. Earls and Justice Michael Morgan, a fellow Democrat, agreed with Republican colleagues that the case should be dismissed. But both objected to the court’s additional decision to throw out a state Court of Appeals ruling endorsing the media’s legal arguments.
Morgan wrote a one-page dissent noting his concerns. Earls took eight pages to make the same point.
“Today, this Court — without legal authority and without the benefit of argument, deliberation, or an opinion — reaches out and changes the law,” Earls wrote. “Whatever the merits of the Court of Appeals decision in this case, it is improper for this Court to act to modify or vacate the Court of Appeals decision in these circumstances. To do so flouts basic principles of the judicial process, and it signals to North Carolinians that ‘[p]ower, not reason, is the new currency of this Court’s decisionmaking.’”
Earls accused Republican colleagues of “injecting yet more confusion, arbitrariness, and partisanship into North Carolina’s legal system. This radical approach allows the Court to brazenly warp the law to its policy preferences unconstrained by the need to have a live controversy to decide through careful deliberation; this is at the cost of the integrity of our justice system and our citizens’ faith in it.”
The critical commentary prompted a rebuke from Justice Richard Dietz.
“Once again, this Court enters a routine order that draws an exaggerated, hyperbolic dissent from one of my colleagues,” Dietz wrote. “And, as is the case with so many of my colleague’s dissents, one could be forgiven for thinking that doom is upon us.”
“My colleague accuses the majority of seeking ‘power’ over reason, of engaging in a ‘radically destabilizing shift,’ of attempting to ‘brazenly warp the law,’ and on and on,” Dietz added. “Like so many of my colleague’s dissents, this one has portions that read more like pulp fiction than a legal opinion.”
Dietz argued that vacating the Appeals Court decision was “consistent with precedent.” He reminded readers that justices already had discussed the Walker case. “As is often the case, my dissenting colleague did not agree with the outcome of the Court’s deliberations and therefore discredits them. But that does not mean they never occurred,” he wrote.
“Rather than force the parties here to endure further, costly litigation, we chose — after much debate — to vacate the lower court opinion,” Dietz wrote. “This permits the Court of Appeals to refine its holding in future cases and perhaps avoid the issues that led us to review this case in the first place. One can reasonably disagree with our approach, but to claim that our decision comes ‘at the cost of the integrity of our justice system and our citizens’ faith in it’ is a bit unhinged.”
“[T]he reasonable differences of opinion that are present in this case do not warrant my dissenting colleague’s angry rhetoric; the needless, toxic disparagement; and the worn-out insistence that every routine disagreement at this Court portends the end of the public’s faith in our justice system,” he added.
While critiquing Earls’ dissent, Dietz never suggested that his colleague should be blocked from offering her comments — even if “so many of my colleague’s dissents” feature the same unfounded arguments.
Earls spoke. Dietz responded. Now the public can decide which comments deserve attention and support. That’s how free speech should work.
Mitch Kokai is senior political analyst for the John Locke Foundation.