A Tale of Two Greenmoss Builders

By O'Neil, Robert M. | Washington Law Review, March 2013 | Go to article overview

A Tale of Two Greenmoss Builders


O'Neil, Robert M., Washington Law Review


If ever a pending Supreme Court case deserved the merciful disposition of "improvidently granted," it would seem to be Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.1 Many factors seem to warrant such interment for an elusive and wholly unsatisfying controversy. Arguably, by any objective standard, this case should never have gone beyond a routine and little noted denial of certioriari. Against this unhappy background, let me offer several countervailing and compelling factors that seem to warrant an alternative disposition.

First, this was an essentially trivial dispute between a credit-rating company and a small private and aggrieved subscriber. As Justice Powell noted in his despairing coda on the final day of the 1984 Term, "[this case] involves only a matter of private interest to the parties. In a word, this is a typical common law libel suit."2 After much wrangling among the Justices during nearly two years of the pendency of this case, it lacked any of the majesty of the New York Times Co. v. Sullivan3 libel case, or even of the lesser but still highly visible struggles such as Richard Nixon's epic argument on behalf of Time Magazine in the "Desperate Hours" case,4 or the bizarre if memorable stand-off between Robert Welch and Elmer Gertz which produced a major sequel on libel law and politics.5 Greenmoss Builders, in stark contrast, offered no such redeeming appraisal.

Moreover, the Vermont Supreme Court was a highly unlikely venue in which to find a major First Amendment test case. Unlike even the New Hampshire Supreme Court, which had had a few encounters with these issues,6 Vermont courts had little preparation or insight for such a dispute.

Third, and of even greater import, Justice Powell candidly announced at the close of his benediction that late June day, "[t]here is, however, no Court opinion."7 Thus, the protracted and painful course of litigation during the pendency of this case ultimately left the Justices bereft even of a single acceptable theory of the case. Fragmentation and division are one thing in constitutional jurisprudence; hopeless splintering of this sort is quite another, and creates consequence ranging from uncertainty to chaos.

There is more. It would not be unfair to observe that the Greenmoss Builders case brought out the very worst among an increasingly contentious group of Justices. As Professor Wermiel and Mr. Levine candidly note, "the deliberations in Greenmoss Builders revealed deep 'hostility' within the Court 'to the New York Times v. Sullivan line of cases' .... As a result, the case was 'fiercely fought out' in a manner largely unseen by the public "8 While falling far short of the cataclysmic divisions that would eventually split the high Court in the 2000 presidential election case of Bush v. Gore,9 such intense squabbling over an essentially trivial tort case (albeit with constitutional implications) seemed unnecessary and potentially quite damaging.

As a result of such deep internal divisions in Greenmoss Builders, one might fairly note that matters of First Amendment law that seemed to have been reasonably well resolved (if not by complete accord) between the Brennan and White factions following the New York Times decision had at least produced a tolerable modus vivendi during the 1970s. What Greenmoss Builders did a decade later was to reopen many old wounds and leave several groups of Justices essentially adrift. It would have seemed far better simply to have avoided granting the case at all, or after having taken that initial step to have taken the merciful measure of dismissing as "improvidently granted."

Finally and perhaps most damaging of all elements within this critique, Greenmoss Builders essentially led the Court nowhere despite the many months of painful dissension. A satisfying outcome after interminable contest might at least have yielded ultimate satisfaction, but when the dust settled and the final decree emerged from the confusion, that was not to be the case. …

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