Can a California local public official sue for slander or libel (defamation)?
May 18, 2011 1 Comment
In California, do statements regarding a public official made during a public meeting and statements regarding a public official made in letters to the editor of a newspaper or other written materials that are publicly distributed give rise to a cause of action for defamation? “Defamation” is used generically to include both libel (written) and slander (spoken). The distinctions between the two are largely procedural, so I will use “defamation.”
It is very difficult for a public official to prevail on a claim that a statement made about the official at a council meeting, or in the press, is defamatory. Statements made during local agency meetings, even if false, are privileged and do not constitute defamation. Statements made in the press about a public official are generally not defamatory unless the official can show the statements were made with actual malice.
Any discussion of defamation involves two different levels of inquiry. The first is whether a statement is defamatory. Defamation is generally defined as a false and unprivileged publication (to a third party) which causes damages (Civil Code sections 45, 47). Therefore, if a statement is true, or if it is privileged, then it is not defamation. Second, even if a statement is not true, or not privileged, a public official may only be defamed if a false statement regarding the official is made with actual malice (that is, with knowledge that it is false, or with reckless disregard of its truth or falsity). New York Times v. Sullivan (1964) 376 U.S. 254, 279-280.
The New York Times case, which discusses “actual malice,” involved an advertisement printed in the New York Times newspaper that contained certain false statements regarding civil rights-era Alabama. The plaintiff in the New York Times case was a public official — the Montgomery, Alabama Police Department Commissioner. In summary, the United States Supreme Court determined that although the statements published in the advertisement were false, they were not made with actual malice and therefore did not result in defamation. The Supreme Court reasoned that the First Amendment protects false statements about public officials because “erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need . . . to survive.’”
Statements made at a local agency meeting are privileged under California law and therefore cannot constitute defamation. (Civil Code section 47(b)). The law states that a privileged publication “is one made . . . in any . . . legislative proceeding.” The courts have read “any legislative proceeding” very broadly to include “all that is spoken or done in the course of legislative proceedings.” Scott v. McDonnell Douglas Corporation (1974) 37 Cal.App.3d 277, 288. In Scott, a letter distributed at a city council meeting charged the city manager with a lack of moral and ethical character. The court found that the distribution was privileged. The court’s reasoning was that the benefits of extended immunity outweigh a narrow reading of the privilege, “even though it countenances vehement, caustic and at times vigorous attacks on government officials.” Id., quoting New York Times. The immunity extends to interested members of the public who wish to address themselves to matters pending before a legislative body. Id.
For example, if a speaker comments on a development and states that “this development will be approved because the entire agency governing body is taking bribes from the developer,” the statement, even if false, is privileged because it is relevant to the subject matter of the meeting. Likewise, if a speaker, during public comments says that “the entire agency governing body is corrupt and is taking bribes from developers,” it is still relevant to the subject matter of the legislative proceeding because the Ralph M. Brown Act allows citizens to make public comments within the subject matter jurisdiction of the local agency, and specifically allows criticisms of the acts or omissions of the legislative body. Therefore, such a comment is privileged and not actionable, even if false.
Letters to the editor that are not true, not privileged, and not an opinion, may be actionable as defamation if there is a false statement regarding a public official made by a speaker who has “actual malice.” The difference between an opinion and a “fact” (true or untrue) turns on a variety of factors. Defamation “can be meaningfully applied only to statements that are capable of being proved as false or true.” Savage v. Pacific Gas & Electric (1993) 21 Cal.App.4th 434, 445. In one case, a newspaper reporter’s statement that a city council member was a crook and a crooked politician were found to be statements of opinion. Fletcher v. San Jose Mercury News (1989) 216 Cal.App.3d 172.
The “actual malice” standard can be difficult to prove, but is not insurmountable. Former San Francisco Mayor Joseph Alioto was able to prevail in a defamation action after suing the publishers of Look Magazine. The magazine had published an article which falsely detailed dealings between the Mayor and members of the mafia. The magazine was found to have published the article with actual malice, meaning a reckless disregard for the truth. Alioto v. Cowles Communications (1977) 430 F.Supp. 1363. However, it took Mayor Alioto eight years after the article was published to win the case and collect a judgment.