The ACLU sued the Tarek ibn Ziyad Academy — a state-funded charter school — alleging that it was operated as a Muslim school and thus violated the Establishment Clause. The Academy counterclaimed, alleging defamation and tortious interference with current and prospective contractual relations.
Wednesday, the federal district court rejected the libel claim, reasoning that the charter school was a governmental entity, and governmental entities can’t sue for libel:
As a threshold matter, Plaintiff contends that as a public entity, TIZA cannot sue for defamation or related claims under New York Times Co. v. Sullivan, 376 U.S. 254, 291 (1964), and its progeny. A governmental body may not sue for defamation. See New York Times, 376 U.S. at 292. The United States Supreme Court in New York Times explained that “[f]or good reason, no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence.” Id. at 292 (quoting City of Chicago v. Tribune Co., 139 N.E. 86, 88 (Ill. 1923)). Accord Edgartown Police Patrolmen’s Ass’n v. Johnson, 522 F. Supp. 1149 (D. Mass. 1981) (“It is well-established that a governmental body may not sue for libel.”) (citing New York Times); City of Chicago v. Tribune Co., 139 N.E. at 91 (affirming judgment for defendant newspaper publisher on the ground that a city cannot maintain an action for libel); City of Philadelphia v. Washington Post Co., 482 F. Supp. 897, 898-99 (E.D. Pa. 1979) (“The City cannot maintain an action for libel on its own behalf. A governmental entity is incapable of being libeled.”). “Public debate must not be inhibited by the threat that one who speaks out on social or political issues may be sued by the very governmental authority which he criticizes.” Edgartown Police Patrolmen’s Ass’n, 522 F. Supp. at 1152 (citing New York Times, 376 U.S. at 292).TIZA does not appear to dispute that public schools cannot sue for defamation, but contends that TIZA, as a non-profit corporation in the business of running a public charter school, is a separate legal entity and not part of the government. While it is true that TIZA is set up as a non-profit corporation, it is apparent that TIZA incorporated itself as such in order to be approved as a public charter school under the MCSL [Minnesota Chater School Law]. Under the MCSL, charter schools, including TIZA, provide free, public education to Minnesota students. The MCSL explicitly states that “[a] charter school is a public school and is part of the state’s system of public education.” Minn. Stat. § 124D.10, subd. 7. Under the MCSL, TIZA operates by law as a public school. Indeed, TIZA admits as much, explaining that “TIZA is a Minnesota non-profit corporation in the business of running a public charter school, not a private school.” Here, TIZA is suing Plaintiff over statements that it perceives to be critical of its functions as a public school. The Court concludes that the body of law establishing that government bodies may not sue for libel applies to TIZA as a public charter school under the MCSL. Accordingly, TIZA’s defamation claim fails as a matter of law.
The court goes on to also conclude that, even if the MCSL were able to sue for libel, it would be a public figure and would therefore have to show that ACLU acted with “actual malice” (knowledge that the statements were false or reckless disregard of the high probability that they were false), and the Academy failed to plead facts that would show actual malice. The court also noted “that it is doubtful, based on the record currently before the Court, that TIZA would be able to establish causation, defamation per se, or that the allegedly defamatory statements were anything more than non-actionable rhetorical statements.” Finally, the court also threw out the tortious interference claims, which were based on the defamation claims. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.
Enrique Armijo says:
It seems as if the school directors, who were co-defendants in the suit, would have had a marginally better chance on their defamation counterclaim if they had claimed the statements were “of and concerning” them as individuals. But apparently they’d be public officials under Minnesota law, and would therefore still lose on actual malice.
The actual malice analysis itself is also interesting – it seems to say that statements a plaintiff makes about allegations made in his lawsuit against a public offical are presumed nondefamatory, since the plaintiff would have to believe the allegations in the lawsuit are true in order to have made them in court.
December 11, 2009, 10:55 amMCM says:
I guess it’s time to bring back the common law offense of seditious libel, colonial New York style – where truth is an aggravating factor, not a defense.
December 11, 2009, 11:06 amGordo says:
It doesn’t bode well for the Academy on the ACLU’s initial suit that its counterclaim was rejected because it is a “public entity.”
December 11, 2009, 11:23 amDuffy Pratt says:
I would have thought that being a public figure is an affirmative defense. If so, its odd that a plaintiff would have to plead facts in its complaint anticipating the defense. And I wouldn’t have thought that there were special pleading rules for this sort of thing anyway.
December 11, 2009, 11:33 amRodger Lodger says:
I read the NYT v. Sullivan opinon when it came out and believed then and still do that when the Sup Ct uses the term “prosecute” as in no prosecutions for libel vs. the gov’t, it means bringing a criminal case. I expect my students to know the difference between suing and prosecuting, and I suspect the Sup Ct knows too. Having said that, if somebody want to build a bridge from the Sup Ct statement to civil actions, that’s fine, but the bridge must consist of more than a citation to the NYTimes.
December 11, 2009, 11:41 amtarheel says:
Enrique –
As to your second point, that was the first thing I looked for in the case. As you probably know, the law in NC (for example) is that anything alleged in a court pleading gets an almost unqualified privilege against a libel claim (unless it is totally and completely unrelated to the allegations of the complaint). The court’s analysis here seems akin to that same privilege, without calling it a privilege.
December 11, 2009, 11:49 amDavid Nieporent says:
As the court eventually notes in a footnote, the offending statements — true or false — were probably not defamatory anyway.
December 11, 2009, 12:02 pmDavid Nieporent says:
Rodger, I don’t know what sort of “students” you’re talking about, but I hope you’re not misgrading them as badly as you’re misinforming them. “Prosecute” can, but need not, refer to criminal prosecution; one can prosecute a civil case. In any case, NYT v. Sullivan is squarely on point, and I don’t know how you’re reading it to talk about criminal prosecution.
December 11, 2009, 12:33 pmEugene Volokh says:
Rodger Lodger: I can see why you might criticize the Supreme Court’s reasoning in New York Times v. Sullivan. But if it’s a matter of figuring out what the Court “means,” isn’t it quite clear that the Court means that civil lawsuits based on criticism of the government are barred as well? The Court is, after all, explaining why a civil lawsuit should be dismissed. The quote mentioning “prosecutions” comes from another civil case. The paragraph that mentions “prosecutions” also says that a state may not “create [a] cause of action,” a term that to my knowledge generally refers to civil case:
And earlier in the opinion the Court says, “What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel.” Or am I misunderstanding your argument?
December 11, 2009, 12:38 pmJust Dropping By says:
There’s clearly an error in the reporting of this story. It says that the ACLU is suing an Islamic organization on establishment clause grounds. Many VC commenters have repeatedly assured me that the ACLU only targets Christian organizations and, in fact, is secretly cooperating with Muslim extremists to destroy all that is good and pure in the United States. Those commenters couldn’t possibly be wrong, could they?
December 11, 2009, 1:34 pmloki13 says:
Rodger Lodger,
What do you tell your students about the tort for malicious prosecution hen it is brought for nuisance litigation in the civil arena? Goodness know, when the next judge dismisses an action for failure to prosecute, I can at least reply that its not applicable, since proseuctions only occur in the criminal arena.
December 11, 2009, 2:11 pmMichael Yuri says:
“prosecute, vb. 1. To commence and carry out a legal action {because the plaintiff failed to prosecute its contractual claims, the court dismissed the suit}. 2. To institute and pursue a criminal action . . .”
December 11, 2009, 2:51 pmBlack’s Law Dictionary, 8th Ed.
U.Va. Grad says:
tarheel and Enrique:
The law in Minnesota is similar, though perhaps narrower. The litigation privilege may be applied if (1) the statement is made by a judge, judicial officer, attorney, or witness; (2) the statement is made a judicial or quasi-judicial proceeding; and (3) the statement is relevant to the subject matter of the litigation. But the privilege will apply only if the administration of justice so requires. See Mahoney & Hagberg, P.A. v. Newgard, 729 N.W.2d 302, 306 (Minn. 2007).
So that said, while the original complaint is surely privileged, I’m not sure Samuleson’s statements are, as the court specifically notes they were made “outside of the current litigation.”
December 11, 2009, 3:09 pmleo marvin says:
Hmmm, ACLU sues a Muslim school….
Paging Danger Mouse. Danger Mouse, please report to the comment thread.
December 11, 2009, 3:29 pmegd says:
It should be obvious, but it’s not the ACLU that filed suit, but rather the Minnesota ACLU.
Totally different. Seriously.
December 11, 2009, 3:53 pmTweets that mention The Volokh Conspiracy » Blog Archive » Charter School Can’t Sue for Libel -- Topsy.com says:
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December 11, 2009, 3:58 pmSuzy says:
Gordo, I hope you’re right!
December 11, 2009, 4:08 pmGuy says:
Do you mean the “seriously” seriously? Of course, the ACLU functions as an financial umbrella organization for its various state chapters.
December 11, 2009, 8:02 pmRhymes With Right says:
Is there some way that the judge could rule that BOTH parties to this case lose and must be disbanded forthwith?
December 11, 2009, 8:12 pmricky says:
Who cares? The important thing is that they’re not Christian. Christianity is a much, much, much greater threat to this country than the Religion Of Peace. Ugh… Sarah Palin… can’t we lock her up for something or other?
December 12, 2009, 2:04 amneurodoc says:
That’s meant to be snark, isn’t it?
December 12, 2009, 9:44 amreadery says:
I think the decision is reasonable in finding that the corporation’s conduct was in its capacity as a public school.
I also think the case implicates the issues the Michigan Supreme Court discussed when turning down Kevorkian’s libel suit for having his conduct characterized as “murder”: In a public debate about what the boundaries between legal and illegal conduct ought to be and how a law should be defined, it is necessary to free debate to permit advocates of an expansive definition to discuss conduct on the boundaries as falling within or deserving to fall within the law. Thus if opponents of assisted suicide were stifled from characterizing Kevorkian’s conduct as “murder”, they would handicapped in being able to conduct vigorous debate over the proper scope of the murder statute.
Same here. There is currently a public debate about whether there should be such things as religion-themed charter schools and what is legally permissable. The proper boundaries of the Religion Clauses are legitimately being debated. It is possible that the ACLU will end up on the losing side of that debate: It may have a more expansive view of what the Religion Clauses permit a charter school of this type to do than is actually the case under the law as the courts may eventually determine it. But even if the ACLU turns out to be wrong and the courts end up disagreeing with the ACLU’s view, the ACLU is nonetheless entitled to participate in the debate and to forcefully present its view of where the boundary ought to be. If the advocates of a more expansive view of what ought to be illegal were subjected to libel suits every time they ended up being on the losing side of the final decision, simply for arguing the law is or ought to be defined to prohibit it, debate about the boundaries of the law and would be stifled and debate participants would be hamstrung.
December 12, 2009, 9:29 pmleo marvin says:
I have no problem with snark, up to a point. But incoherent snark….
December 12, 2009, 9:35 pmreadery says:
Correction: The case is Kevorkian v. American Medical Association, 237 Mich. App. 1 (1999). It is a Michigan Court of Appeals opinion; the Michigan Supreme Court (and U.S. Supreme Court) denied review.
December 12, 2009, 11:02 pm