Q: There has been an ongoing battle to maintain my First Amendment right in City Council to testify against policies that I feel are unjust. In March, the Council voted unanimously to keep me and others out of City Council hearings should they deem it necessary. In their votes, both a commissioner and the mayor acknowledged it may be unconstitutional to do so, but they did it anyway.
The ACLU took up my case but never followed through with it because the Council never followed through with the threat of exclusion for long term although it’s on the books.
But that’s not why I’m needing assistance. A commissioner is going after me on her personal FaceBook page after blocking me from seeing it, ridiculing me, threatening to sue me for libel because I questioned her about an article that was recently written in a local newspaper that she refuses to answer, and now has asked her friends to stop me from speaking anywhere and everywhere I am.
I am being bullied. I have seen the entire thread which continues daily, from a friend who has copied it for me. I’ve received messages from her friends that have been vile. She has used my public testimony to ridicule on her personal page. My public testimony! She is making fun of what I say in City Council as my testimony on her page and making people hate me and laugh at me and come at me. It’s happening on my FB and Twitter.
Two people have told me to get a lawyer and sue her. What are my rights? I had my first nightmare last night that she was in my house coming at me to harm me. A reporter who has a very large account of her bullying has been in touch with me. He told me she has a history of this. He knows people who she’s gone after and harmed. Can you help me out?
A: I am sorry to hear about your situation and the Commissioner’s behavior. Your inquiry is necessarily fact specific, and we unfortunately don’t have the resources through this service to provide you with an in-depth analysis. We can, however, provide you with some information that you might find helpful.
First, depending on the nature of the Commissioner’s comments, they may or may not violate the First Amendment. The First Amendment requires “freedom for the thought that we hate.” U.S. v. Schwimmer, 279 U.S. 644, 655 (1929). Thus, if her comments are only disparaging or only statements of opinion, they may not violate the First Amendment. One additional question to consider is whether her Facebook page is truly personal or whether she uses it as an official page for public comment.
Second, the vague threat that a libel action may be brought against speakers is troubling for multiple reasons. Any libel action against someone who speaks at a public meeting about a matter of public interest would face an uphill battle in court. Speech on matters of public interest, and concerning public officials such as school board members and administrators, is strongly protected under the First Amendment.
The crux of any libel lawsuit is falsity, and therefore, truth is one of the primary defenses to a defamation claim. Likewise, statements that are purely opinion or are protected by some qualified or absolute privilege (including privileges that apply in the context of “official proceedings” such as public meetings) are equally protected.
Indeed, where public officials are concerned, a very high standard must be met to show that the statement, even if it turns out to be false, was made with “actual malice” – that is, proof that the defendant knew the statement was false, or that it was published with reckless disregard for the truth. New York Times v. Sullivan, 376 U.S. 254, 283 (1964).
Finally, the First Amendment generally guards against “[o]fficial reprisal” given that retaliation for exercising one’s right to protected speech “threatens to inhibit [the] exercise of the protected right.” Lacey v. Maricopa Cnty., 693 F.3d 896, 916 (9th Cir. 2012) (internal quotations omitted).
In order to show a First Amendment violation, a plaintiff must present evidence demonstrating that the defendant, by its actions, “deterred or chilled” the plaintiff’s “political speech and such deterrence was a substantial motivating factor in [the defendant’s] conduct.Id.
Every case is different, and any First Amendment analysis is necessarily fact specific. In Lacey, the court found that the plaintiff, a newspaper reporter critical of the county sheriff’s office, could maintain his First Amendment retaliation claim against the Maricopa (Ariz.) county sheriff based on the sheriff’s “intrusive investigation and arrests designed to chill his speech and press rights.” Id. at 922.
To succeed in a retaliation action, a plaintiff must prove:
“(1) the conduct he complained of was committed by a person ‘acting under the color of state law’; and
(2) ‘this conduct deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States.’” Id. at 1062.
If you feel that you are in need of an attorney, the Oregon State Bar Association has a Lawyer Referral Service that you might find helpful.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation. No attorney-client relationship has been formed by way of this response.