Police employees in Surprise, Arizona are asking the city to stop other police officers from posting anonymous comments on private websites that they say are potentially defamatory. -db
The Arizona Republic
October 9, 2010
By D.S. Woodfill and Lisa Halverstadt
A controversy brewing in Surprise is raising questions about a city’s liability when its employees post potentially defamatory comments online about other workers.
Three police employees, including the department’s top-ranked woman, said the city should have put a stop to comments posted on a private website. They said that other police officers posted the anonymous comments over several months, falsely accusing them of illegal or unethical acts ranging from affairs to covering up a murder.
They said they have paid for it through medical bills and stress. Now, they want the city to pay $3.5 million in claims they filed against Surprise.
In the relatively new territory of online conversations in blogs, “chats” and other postings, First Amendment experts are debating whether local governments can be held responsible for employees’ behavior on the Internet.
The claims center on a website that is focused on law enforcement, board pecking.com, which has a mix of news, information, opinions and blogs. Over months, people have “chatted” anonymously about controversies involving the former Surprise police chief, the local police union and police discipline. The comments range from the benign to gossip about job performances and relationships.
Lt. Penny Riherd, police spokesman Sgt. Mark Ortega and Officer Doug Lynch, who work in the same unit, say in their claims against the city that the comments veered into the defamatory. Commenters traded jokes and insults centered on Riherd’s gender and falsely accused all three of crimes, according to the claims.
Website operator Lisa Huston, who is married to a Surprise police officer, declined an interview. City officials also declined to comment, although a human-resources memo to Ortega said the situation needs to be handled privately.
Attorney Veronica Manolio, who represents the employees, said some of those commenting are identifiable as police employees and the city is obligated to ferret out and punish them. She cited the city’s “violence in the workplace policy,” which addresses harassment in written or electronic communications, including “website material.”
Experts on free speech are divided about whether local governments can be held liable for comments on privately run websites.
Joseph Russomanno, an associate professor focusing on First Amendment law at Arizona State University, said a court could hold the city responsible for the comments.
“It’s no different, it seems to me, than if a reporter for a newspaper writes something that is libelous,” he said. “Both of those parties can and likely would be held responsible – the reporter and the newspaper itself. So I think you have very possibly a parallel situation here.”
He said a court could also hold the website operator responsible.
“One of the things it comes down to is, ‘Who is the publisher of the information?’ ” he said. “And anyone who can be qualified as the publisher is a potential defendant.”
But Peter Scheer, executive director of the California-based First Amendment Coalition, said the city is powerless to stop the comments, even in cases where the writers identify themselves.
Scheer said the city has no legal standing to subpoena the anonymous names of those making comments on a website it doesn’t own. And, though local governments do need to protect employees from a hostile work environment, employment law doesn’t cover whether that includes possibly defamatory, anonymous comments on a website that the employer doesn’t own or operate.
Victoria Smith Ekstrand, an associate professor at Bowling Green State University, specializing in First Amendment issues, said the police employees could pursue the identities of those making the comments through the legal system. But the courts are still grappling to what extent an Internet service provider can protect the identities of its users.
“The courts are only beginning, in many ways, to kind of tackle this issue and try to decide when and how these people’s names should be revealed,” Ekstrand said. The disagreements about “unmasking an anonymous online defendant” spill across state and federal law, she said.
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