Even though state supreme courts are highly influential in the American legal system, this is not reflected in civic education. From middle school to law school, most textbooks focus solely on the development of legal doctrine at the federal level, ignoring original contributions made by state courts. This series seeks to counteract that trend by exploring the history of the North Carolina Supreme Court’s free speech jurisprudence from the time of the founding until the mid 20th century.

Specifically, it will show that numerous legal doctrines that were later adopted by the US Supreme Court emerged organically in North Carolina case law without any guidance from the federal courts, which did not even begin to address free-speech claims against state and local governments until 1925. The series will also point out areas of free-speech law where the US Supreme Court diverged from the rulings of the NC Supreme Court. Finally, it will conclude by offering a brief proposal for reviving interest in state courts in American classrooms.

Here, I begin by exploring how the doctrine of “actual malice” — now a bedrock principle in defamation law — developed at the NC Supreme Court.

(I would like to thank Riley Blake, a recent student practitioner at Duke Law School’s First Amendment Clinic, for his invaluable feedback and advice on this essay.)

  1. Actual Malice

The now-famous (or infamous, depending on one’s view) standard of “actual malice,” derived from the US Supreme Court’s holding in New York Times Co. v. Sullivan, has its roots in the decisions of 19th-century state courts like the NC Supreme Court. The standard requires that plaintiffs in libel and defamation suits prove that the defendant’s statements were made “with knowledge that [the statements were] false or with reckless disregard of whether [they were] false or not.” Its stated purpose is to prevent the punishment of honest mistakes and the self-censoring of journalists who cannot check every allegation that comes to their attention.

  1. The Rise and Fall of Wakefield

This principle first entered North Carolina’s casebooks with the decision of Wakefield v. Smithwick. Stripped down to its essentials, the case involved the dismissal of a schoolteacher after her landlord, Simeon Smithwick, sent a letter containing false allegations to her employer. The schoolteacher, Helen Wakefield, sued Smithwick for libel. The presiding judge instructed the jury to find in favor of Smithwick unless Wakefield had proven that the defendant knew the allegations were false at the time he made them. Since this was a very difficult standard to meet (in addition to conflicting testimony about why Wakefield was fired), the jury voted to acquit Smithwick.

In Wakefield, the court actually reversed the trial court’s decision to adopt an “actual malice” standard, holding that when a plaintiff shows that the defendant’s “communicat[ion] was false,” “the defendant is called on…to show that he acted bona fide [in good faith].” In other words, false allegations are not entitled to any free speech-sensitive presumptions, and defamation defendants bear the burden of demonstrating that they had acted without malice.

The Wakefield rule would dominate North Carolina defamation law during the late 19th century, but it would not last. In 1891, the court took up the case of Ramsey v. Cheek and used the controversy as an opportunity to expressly overrule Wakefield.

Ramsey is a colorful case, to put it mildly. James Cheek was a Republican state legislator who ran for the state Senate in Durham in the 1880s. After losing the election, his opponent, a Democratic politician named Hawkins, rewarded his supporters by securing jobs for them as federal “enumerators” — that is, those who collect data for the US Census. Infuriated by this corruption, Cheek fired off an angry letter to the superintendent of the Census Bureau in Washington. Here is an excerpt:

“In this district Mr. Hawkins appointed a large majority of enumerators, extreme Democrats,…among them MURDERERS and drunkards….Hawkins pays no attention to me and friends, but appoints…a man named Ramsey who murdered…two…soldiers while they were asleep….”

Naturally, Ramsey objected to being accused of double homicide without evidence, and he sued Cheek for libel. He “introduced testimony…show[ing] that the charges against him in the letter were untrue.” In his defense, Cheek argued that his statements were protected speech and that Ramsey had failed to prove that his statements were malicious, though he did not deny that they were false. The presiding judge agreed and dismissed the charges, in an apparent violation of Wakefield. Ramsey appealed.

Newly appointed Justice Walter Clark wrote the opinion for a unanimous court in upholding the trial court’s decision.

“In cases of [this sort],” he wrote, “evidence that the charge was false will not of itself be sufficient to establish the malice, unless there is proof that the defendant knew that it was false…or that there were opportunities available to him whereby he might have ascertained the truth…which he neglected.” (emphasis added)

  1. From Raleigh to Washington

Seventy years later, when the US Supreme Court decided whether to apply this overall framework to the First Amendment, it looked to the state courts’ interpretation of their constitutions for guidance. In his Sullivan opinion, Justice Brennan cited the Kansas case of Coleman v. MacLennan, which held that a speaker cannot be held liable for statements when he “believe[d]” that he was conveying “truthful information.” Justice Brennan noted that this rule “ha[d] been adopted by a number of state courts,” and in footnote 20 of his opinion, he proceeded to give a lengthy list.

The first case cited was the North Carolina Supreme Court decision of Ponder v. Cobb, which quoted extensively from the original Ramsey ruling. Thus, in Sullivan, the US Supreme Court explicitly adopted the standard established by the North Carolina Supreme Court in Ramsey and carried it over to the Federal Constitution.

This does not mean, of course, that Sullivan is necessarily correct because it was derived from this tradition. The First Amendment and its state counterparts, including Art. I, § 14 of the North Carolina Constitution, have important textual differences. However, it is undeniable that this rule, which has proven enormously influential in American defamation law for the past half-century, was shaped heavily by the opinions of state courts like the NC Supreme Court.