My Sports Law Blog colleague Rick Karcher writes about a $ 5 million jury award in a defamation action brought by Ray Keller, a former University of Alabama football boster, against the NCAA. Keller’s claim was that the NCAA labeled him (and other boosters) as “rogue boosters,” “parasites,” and “pariahs” in the course of imposing sanctions on the Tide’s football program several years ago. Rick’s post and comments do a good job explaining some of the underlying First Amendment problems with the verdict.
I use New York Times v. Sullivan to teach subject matter jurisdiction in my civ pro course; the case illustrates complete diversity, the well-pleaded complaint rule, state-federal appealability, discretionary v. mandatory SCOTUS review, and the differences between statutory and Article III “arising under” jurisdiction. And it does it in (what I believe is) an interesting social, political, and constitutional context. Colleague-for-the-year Fred Bloom actually has put together complete set of materials on the case that he uses to teach all different issues, including discovery and personal jurisdiction.
2009 will mark the 45th anniversary of Sullivan and I have eyed that as a target year for an article on the jurisdiction of the case. The problem was finding a “hook” to the article, something that made it more than a recitation of doctrine. Depending on what happens next in this NCAA case, I might have found it. The complete diversity and well-pleaded complaint requirements, as limitations on district-court jurisdiction, mean that most defamation actions must be tried in state court and litigated through the state-court system because there is no basis for original federal jurisdiction in the district courts. And, with the loss of mandatory appellate jurisdiction in SCOTUS, many of these cases never will make their way into federal court at all.
The result is the occasional whopper of a home-field-advantage verdict such as this one. Which is not to say that a federal jury does not occasionally produce a jaw-dropping verdict in a First Amendment case. But it does reflect some general concerns about federal fora for federal issues that underlie much of the federal jurisdiction literature. As I said in the comments to Rick’s post:
New York Times rewrote defamation law in a First Amendment light in 1964 because an Alabama jury ran wild with a massive damages award against an “out-of-town speaker.” 43 years later, not much has changed . . .
Posted by Howard Wasserman on November 30, 2007 at 03:46 PM