“Sticks and Stones May Break My Bones, But Words Will Never

Harm Me”…much.Child’s Nursery Rhyme

The Law of Defamation in the Public School

Context

ASBA, Fall Law Conference, 2014

You Get Elected or Appointedto a School Board . . .

And then, suddenly, the honeymoon is over

•A random crazy person verbally attacks your decisions or you personally at the Board meeting

•A citizen’s committee verbally attacks your decisions or you personally at the Board meeting

• Employees verbally attack your decisions or you at the Board meeting.

And it hurts your feelings and it makes you REALLY MAD.

You want to lash out and say…

I’m a School Board Member!

• Don’t they get I’m a volunteer?

• I don’t get paid to put up with this!

• Do I have to put up with this?

• Why do I have to put up with this?

• I’m fed up and I’m not going to put up with this any more!!

Call to the Public• The Arizona Open Meeting Law does not

require a “call to the public.”

• If the Board chooses to have a call to the public, then what happens when the call to the public is used to– Attack a Board member– Attack the Superintendent– Attack an employee

• A Board member may respond to criticism.

“The truth? You can’t handle the

truth!”

Can Public Comment Be Limited?

• The Board does not HAVE to choose to have public comment.

• If the Board chooses to have public comment, then it can only limit the comment in certain ways.– It can limit the amount of time allotted, but

must allow the same amount of time for each speaker

– It can maintain order and prevent the disruption of the meeting. In these cases, the individual(s) attempting to disrupt the meeting need to be informed of the misbehavior (“fighting words”, threats) and warned that further such behavior will result in either their ouster from the meeting OR concluding the meeting without further action. Document the behavior and warning

– Immediate removal (or arrest) can occur if a person is physically assaulting another.

Content Limitations? There Lies MADNESS!

• By creating a “call to the public,” the Board creates a “designated public forum.”

• The designated public forum is created because it gives access to the public to come to the meetings and to comment upon a specific agenda item or any matter within the board’s jurisdiction.

A Designated Public Forum?Content-based restrictions must survive strict scrutiny to pass constitutional muster

•Criticism of school officials? Schools have argued that policies that prevent criticism of school employees/officials are necessary

– to protect the privacy and liberty interests of its employees

– to conduct an orderly, efficient meeting

•The 9th Cir. has held this unconstitutional.

Limitation of Speakers?

• Attempts to prevent teachers or other school employees from addressing the Board has also been found to be a form of content-based restriction.

Changing the Invitation?

• Since Boards do not have to have a call to the public, can they limit the extent of the call to the public?

• The District can create a non-public forum by reserving the use of the forum to a particular class of speakers who then request the right to address the Board.

The Board Can Limit the Invitation

• The Board can limit the call to the public to items listed on the agenda.

• The Board can set out limits in the policy and post them at the meeting so that all who attend know the rules.

• Rules must not limit the viewpoint of the speaker

Once They’ve Spoken…

• THEN what?

• What if they say something horrible about a teacher, employee, administrator or

• BOARD MEMBER like <gasp> ME???

What is the Law on Defamation?

And can I use it to nail that jerk who said mean things about me?

To stop that INFERNAL NOISE?

Defamation is

• Defamation is a false statement of “fact” that damages a person’s reputation or good name or that otherwise injures a person’s business or profession.

• Generally, – Written defamation is libel– Spoken defamation is slander.

To Prove Defamation

A statement was made

•That statement is false

•The statement is “of and concerning” the plaintiff

•The statement was published

•The statement caused injury

•The injury was caused by the defendant.

OK, You Can Show All That…Maybe You Even Want to Sue!!

Hold Your Horses, Cowboy!• Before 1964, defamation of an elected

official was considered to be like “fighting words” or “obscenity” and received no First Amendment protection.

• In New York Times v. Sullivan, however, that all changed.

• The Times printed an ad that contained several factual errors about the abuses black students suffered.

New York Times v. SullivanThe Supreme Court reasoned:

“Thus, we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

The Court found that an "erroneous statement is inevitable in free debate."

Allowing public officials to sue for slander would chill free speech about matters of public concern. Therefore, the Court held:

“The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

In addition, the standard to prove malice is by “clear and convincing” evidence.

If the defamation occurred during the meeting…

• Privileges: If a matter is privileged, anything that is said, even if untrue, is protected against a defamation claim. Statements made by the participants in:– Judicial– Legislative– Administrative

proceedings are privileged.

So the loudmouth who rants about an administrator during

a school board meeting cannot be held liable for defamation?

That Depends…• In some jurisdictions, if the loudmouth charges

the administrator with misconduct, claims the administrator is unfit for the job, claims the administrator is immoral with a fondness for goats;

• even if the charges are completely false;

• even if they were made with the intent to harm;

• and even if the administrator is actually harmed, the loudmouth has an absolute privilege.

WHY????

• Because in those states, statements made in the course of an official proceeding cannot be the basis for a defamation suit.

• This is true even if the statements were completely irrelevant to the proceeding!!

• HOWEVER, in ARIZONA, the privilege is QUALIFIED.

In ArizonaThe privilege defense against defamation for individuals appearing before a Board in a public meeting is qualified:•The statement must bear some relation to the actual proceeding•The statement must be made primarily for the purpose of furthering the public interest, and

•The speaker must not abuse the privilege by actual malice or over-publication.

Circling the Wagons

Right Way Wrong Way

Impediments to Suing• To prove defamation, public figures and

elected officials have to show the statement was untrue, and

• That the person knew it was untrue or made the statement with “reckless disregard” to the truth, and

• That they suffered actual damages like monetary damages, harm to their personal reputation, personal humiliation, mental anguish and suffering, or physical suffering.

And all this has to be proved by “Clear and Convincing” evidence!

The Defendant can defend against the claim of defamation by using these defenses:

• Truth or substantial truth: Truth is generally a complete defense. In addition, may states have adopted the substantial-truth doctrine, which protects a defendant as long as the "gist" of the story is true. When the burden is to prove “malice” the person can simply say he didn’t know it wasn’t true or had no reason to doubt the veracity of the information.

• Fair report or fair comment: A person reporting on the deliberations of a public body.

• Libel proof plaintiff: The person’s reputation is so bad, no one could make it worse.

• Rhetorical hyperbole: Some courts hold that the language in contexts like shock talk radio, editorials, or “op.ed.” columns is understood to be taken figuratively.

Over The Top…If, however, the allegations made involved criminal actions, the defamation may be easier to prove.

•Allegations that a Board member has stolen funds, committed fraud, or engaged in sex with a minor are not seen as any “reasonable criticism.”

• Allegations of this magnitude would be easier to demonstrate as malicious because a reasonable person wouldn’t make these claims without some proof.

• These types of claims are generally easier to disprove and the damages, particularly to a person’s reputation, are easier to show.

Who Would Pay?• Since the allegation is made against an

individual Board member, the Board member may be expected to pursue the claim against him/herself by him/herself.

• The reputation of the public body is not in question, so the public body should vote as to whether they should spend tax dollars to defend the individual targeted.

• Bringing a defamation suit is not covered under pre-paid legal.

Bottom line?

• Board members, like all elected officials, need to understand that criticism—unfair, biting, downright nasty and uncivil, is an unfortunate part of the position.

• The remedy is not to call a lawyer…but to develop a thicker skin.

Questions??

My Thanks to Tom Pickrell

His Inquiry and Analysis article for the National School Board Association regarding the open meeting law and restrictions to speech was blatantly used in this presentation—the full article is included in your materials.

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