Question
Are letters submitted to city council pertaining to an agenda item which contain obvious defamation and libel against a private citizen protected speech? I am a community representative who was the subject of hate speech via two letters, one anonymous and one signed to city council. In addition I was the victim of vandalism at my home during the same week. Considering the message contained in the hate speech, the vandalism, and my civic activity there is a demonstrated nexus suggesting the vandalism was a reactive hate crime, sending the message threatening my civic activity.
I understand there are exception to the 1st amendment, is a private citizen protected from libel and defamation in official communications to city council? If the speech is meant to incite hostility against a neighborhood group leader is the letter exempt? If the letter is anonymous hate speech or violates my civil rights to be safe to engage in civic activity should it be exempt?
Answer
Under California Civil Code § 47(b), any oral or written statement made during or in the initiation of any governmental proceeding (such as a city council meeting), such as a city council meeting, is absolutely privileged and cannot form the basis for a lawsuit. See, e.g., Cayley v. Nunn, 190 Cal. App. 3d 300, 303 (1987) (“the privilege … applies to local city council proceedings.”); Scott v. McDonnell Douglas Corp., 37 Cal. App. 3d 277, 286 (1974) (“The reading of the letters at the city council meeting was privileged, as was the distribution of copies of the letters to members of the audience (including the press) attending the council meeting.”).
There are certain limited exceptions — such as for an affidavit in a divorce case that is not verified or a statement in other judicial proceedings concealing the existence of an insurance policy — but they do not include the circumstances cited in your email.
If the section 47(b) privilege did not apply for some reason, there would also be a question of whether the First Amendment protected the letters. Typically the First Amendment protects speech — especially to a governmental agency, which is considered a form of political speech — even if it could be considered hate speech, unless that speech includes a “true threat, that is one “where a reasonable person would foresee that the listener will believe [s]he will be subjected to physical violence upon h[er] person,” because only such “true threats” are “unprotected by the first amendment.” Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coalition of Life Activists, 290 F.3d 1058, 1075 (9th Cir. 2002).
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