As Eugene mentioned yesterday, the Missouri Higher Education Loan Association (MOHELA) has threatened to file a defamation lawsuit. but New York Times v. Sullivan, among other cases, says the Constitution bars government-filed defamation suits. The Washington Post published an article about it and asked me (and Sam Bray) for comment in light of our writing on the constitutional status of MOHELA in the context of Biden v. Nebraska. (Amicus Brief; Comment on the HLR Case).
I responded, “It is unclear whether the Supreme Court’s ruling that harm to MOHELA is necessarily harm to Missouri also means that MOHELA is equal to the state for other legal purposes,” and a paraphrase of my comment was added to the history. Since it might seem like Eugene and I are at something of a disagreement here, I thought I’d explain:
My main point was that the question of state standing resolved in Biden v. Nebraska seemed to be intentionally separated from many other legal questions one might ask about MOHELA’s state status.
For example, there has been a dispute in the lower courts over whether or not MOHELA is a “state arm” of Missouri for purposes of state sovereign immunity – and I think the better view is that MOHELA is not a “arm of the state” state.” But the Supreme Court avoided ruling on that question, even though some of the previous reporting on the case had focused on it. Likewise, the Supreme Court avoided saying that MOHELA “is ” the state, describing it instead as a “public corporation,” “governmental corporation,” “instrument of the state of Missouri,” etc., whose harm was necessarily harm to the state. Thus, if the principle of New York Times v. Sullivan applies to such entities seems to me to be a different and additional question than that resolved by Biden v. Nebraska.
Consider the example of a government official. A state official is a “state actor” for some purposes: his official acts are bound by the Constitution and if they violate the Constitution you can sue him. But state officials, unlike governments, can bring defamation suits (subject to current malice standards). So is MOHELA more like a government official or is it itself a government? This is an interesting question, but again not one fully answered in Biden v. Nebraska.
That said, in subsequently emailing Eugene, I learned that there is a substantial body of lower court case law holding that non-profit government corporations and the like are covered by the rule barring defamation actions brought by the government. Eugene quoted:
Beedle v. Wilson, 422 F.3d 1059 (10th Cir. 2005) (applying state action analysis under sec. 1983 to decide whether a hospital was barred from suing for defamation) … ACLU of Minn. v. Tarek ibn Ziyad Acad., No. CIV.09-138(DWF/JJG), 2009 WL 4823378 (D. Minn. Dec. 9, 2009) (charter school); Nampa Charter Sch., Inc. v. DeLaPaz, 140 Idaho 23 (2004) (charter school); Cap. Dist. Reg’l Off-Track Betting Corp. v. Ne. Knights Harness Ass’n, 92 Miscellaneous. 2d 232 (NY Sup. Ct. 1977) (“public benefit corporation organized under the provisions of the New York State Regional Off-Track Betting Corporation Law”); Bedle v. Darby, 2000 OK 1 (non-previous) (hospital); Cox Enterprises v. Carroll City/County Hosp. Aut., 247 Ga. 39 (1981) (hospital); Atlanta Humane Soc. v. Mills, 274 Ga. App. 159 (2005) (Human society).
These quotes convince me that the general rule seems to be that non-human entities that are state actors appear to be covered by the anti-defamation principle, and so Eugene is probably right about the end result.