Editor’s Note: This article is not intended nor should it be taken or relied on as legal advice. It's for discussion purposes only.
For as long as there have been employer-employee relations, there’s been griping about the same. It’s a revered tradition to stand around the water cooler and complain about the boss, work conditions, wages, promotions, unfair discipline, etc.
In America, this tradition enjoys certain legal protections. But there are limits to bad-mouthing the boss or the department. Some comments can get you sued, disciplined, or fired. This push-pull has implications for officers, the brass and departments as a whole. Throw in the new and evolving technologies of anonymous internet postings and social media and we’ve got a lot of interesting questions.
In “a shot heard round the [employment law] world,” the National Labor Relations Board has agreed to address whether and how a worker bad-mouthing her supervisor on her personal Facebook page might be grounds for dismissal.
What? You’ve had a crummy shift, week, month or year at work and you go home and vent online and you can be fired and possibly sued? What’s the Internet coming to? Lots of litigation and legal precedence, for one thing.
Basics in Defamation Law
Ideally, etiquette and civility would govern all our discourse and disagreements. If we lived in such a world, cops would be out of work.
Enter the law. In this case, the law of defamation.
Defamation law has been set out in this country for centuries. Generally--different states and jurisdictions may have varying laws--defamation is:
-- If the subject of the statement is a private figure, “with fault” is established if the person making the statement knew, or in the exercise of reasonable care should have known, the statement was false – that is, if the person was “negligent” regarding the statement’s falsity.
--If the subject is a public figure or official or an issue of public concern, a higher standard of “actual malice” or “reckless disregard” must be shown to establish fault.
Because defamation requires a false statement of fact, truth is always a defense. Keep in mind: Truth can be difficult (and in the case of a lawsuit—expensive) to prove.
The remedy for defamation in the U.S. is generally civil liability for the damages inflicted. There’s no federal criminal defamation. Sixteen states have some criminal defamation legislation and recently there have been some criminal defamation cases arising from the internet in Wisconsin, Colorado and Oklahoma.
Public vs. Private Figure
Case law from different jurisdictions may vary somewhat regarding who is a public figure or official. There are also sub-categories such as:
For our purposes, the chief is probably always a public official since she is in a position to make public policy. Although we know officers are subject to much greater public scrutiny for their official conduct than many other citizens, for purposes of defamation law, a non-managerial officer is probably not a public official of figure unless she makes herself one on a specific issue.
Fact vs. Opinion
Statements of opinion, as distinct from statements of fact, are protected by the First Amendment. Whether you, the speaker or writer, characterize the statement as opinion is not the test.
In Milkovich v. Lorain Journal Co., 497 U.S. 1 at 17, 21 (1990), the Supreme Court articulated some standards for determining whether a statement would be held to be an opinion or fact for defamation purposes:
Milkovich only sets a constitutional floor below which state law cannot go. Nothing prevents states from providing more protection to opinions than the First Amendment requires.
Some jurisdictions have eliminated the distinction between fact and opinion, and instead hold that any statement that suggests a factual basis can support a cause of action for defamation.
Defamation on the Internet
The Internet has added some new twists to defamation law. That’s mainly because the Wide World Web gives the average, anonymous Jane and John Doe the power to instantly send their opinions globally without anyone checking the facts first. After that first “click,” the item can linger on the internet indefinitely, even if the “facts” or opinion are wrong. The shelf-life of an internet statement is often longer than many print publications.
The wrinkles for anonymous-based forums on the internet include:
-- On one hand, the Supreme Court has held that anonymous speech is vital to democratic discourse. Allowing dissenters to shield their identities frees minorities to express critical views free from the tyranny of the majority. McIntyre vs. Ohio Elections Commission, 514 U.S. 334 (1995).
-- On the other hand, the First Amendment does not protect defamatory statements and to prove defamation, victims need to establish the speaker acted with negligence, reckless disregard or actual malice. That’s nearly impossible without discovering the speaker’s identity.
We have lots more to look at and ponder. In future articles, we’ll discuss:
Origin of “Shot Heard ‘Round the World”
National Labor Relations Board
Company Accused of Firing Over Facebook Post
Firing Over Facebook Post Creates Firestorm
Understanding Internet Defamation
Online Defamation Law
Map of Criminal Defamation Laws