Construction Cost Data, L.L.C., et al. v. The Gordian Group, Incorporated, et al.

According to this Court’s First Amendment jurisprudence, “the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection[,]” Garrison v. Louisiana, 379 U.S. 64, 75 (1964), and “the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974). A jury found Respondents liable for Business Disparagement (as well as other state-law liabilities), because they “published a disparaging false statement” and “knew the falsity,” “acted with reckless disregard,” or “acted with ill will or intended to interfere.” Respondents nevertheless negated the liability by invoking a First Amendment doctrine known as “NoerrPennington,” which is applied in markedly inconsistent ways by the circuits. The questions presented are as follows:

1. Whether the Noerr-Pennington doctrine has been improperly expanded beyond its First Amendment moorings to insulate knowingly, recklessly, or intentionally false statements.

2. Whether the Noerr-Pennington doctrine is irreconcilable with jury findings against Respondents in this matter—all of which were premised on “appropriate standard[s] of liability” established by the state of Texas, which parallel the outward limits of First Amendment protections.