Tuesday, July 04, 2017

Not All Criticism is 'Defamation'

Note: To put this piece in context, it is a response to an article in the Iowa City Press-Citizen: Holly Hines, "School Officials' Emails Raise Free Speech Concerns; First Amendment Experts Say Legal Threats May Amount to Intimidation," Iowa City Press-Citizen, June 24, 2017, p. A1. The story reported and discussed, among other things, that citizens were concerned that they might be sued if they criticized the Iowa City Community School District superintendent. (And see also, Holly Hines, "External Reviewer Sought for School District; Culture Concerning Whistleblowers is Under Investigation," Iowa City Press-Citizen, September 1, 2016, p. A1.)

Without expressing a view regarding the justification for the criticism, I thought a brief statement of the law of defamation might be useful -- as set forth below. Following Holly Hines story, and my explanation of defamation, the Press-Citizen editorial board published the following editorial: "Alter Culture of Fear in School District," Iowa City Press-Citizen, July 1, 2017, p. 7A (the Press-Citizen only publishes an opinion page on Wednesdays and Saturdays.) Here is my brief explanation on June 28th:

Is Superintendent Criticism 'Defamation'?
Nicholas Johnson
Iowa City Press-Citizen, June 28, 2017, p. 7A

There’s a local issue regarding limits on citizens’ criticism of school superintendents. Can the critics be sued for defamation?

I won’t take sides on whether the criticism is warranted. Moreover, social norms may be more relevant than “the law.” In either case, one’s reputation is a thing of value. [Citizen Julie VanDyke speaking to ICCSD School Board members; photo credit: Sandhya Dirks/Iowa Public Radio]

Not all criticism is defamatory. There must be an unambiguous, clearly false, factual statement (not just opinion), that causes measurable harm to one’s reputation among a relevant group (such as potential employers or customers).

The false assertion that a superintendent stole $97,000 from the schools’ playground fund could be defamation. Saying, “I think he’s doing a lousy job” would not be.

Moreover, the Supreme Court has ruled that while citizens need only show falsity, public officials must prove “that the statement was made ... with knowledge that it was false or with reckless disregard of whether it was false or not.” Why? Because protection of political speech lies at the heart of First Amendment guarantees.

As Justice Brenan wrote in New York Times v. Sullivan, “[we have] 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.”

This is for newspaper readers only, not legal advice. If you’re involved in a defamation case, get a lawyer.

Nicholas Johnson
Iowa City
# # #


Anonymous said...

Nick, how could the District's assertion that they do not have to provide reviews/reports we've paid Joe Holland for as open records in response to FOIA requests when those reviews/reports are not HR protected personnel documents, land purchase)sale related, or in regard to an issue in litigation possibly be true? Client - Attorney privilege shouldn't protect the district releasing those docs should it?

Nick said...


I cannot, and do not, provide legal advice. Even if I did, these things are nuanced and not subject to a top-of-the-head response without knowing more of the detail. However, I would guess that if you know enough to ask the question you have, you probably know that it's possible an answer may lie somewhere among the 69 exceptions detailed in Section 22.7 of the Code of Iowa. Obviously, as I wrote in the piece above, if yours is more than just intellectual curiosity "get a lawyer."

-- Nick

Anonymous said...

Intellectual curiosity only at this point, litigating it would then provide them one of the 69 IAC exceptions to justify non-release, a catch-22...but your answer actually made me see something lying, so to speak, out in plain sight = the District assertion they say allows them to refuse release of anything done by Joe Holland wasn't any of the 69 exceptions to IAC 22.7, their justification has been "Attorney/Client Privilege". If it was covered in one of the 69 exceptions, they would have gloatingly named which one.