Pomona City Attorney Threatening Lawsuit for Libel of City?

Someone pointed me to this letter in which the Pomona City Attorney seems to be threatening the Foothill Cities weblog with a libel lawsuit:

[T]his letter will serve as notice and demand to you ... to cease and desist any further publication of false information concerning the City of Pomona, the City Council of the City of Pomona, the City Manager and/or any of the City's employees and that you delete and retract all such communications that have appeared on your web-site concerning this matter during the month of April 2007 to the present.

(LA Observed has more on this.)

I can't speak to whether any of the blog posts did indeed libel City employees or officials. But I can say that the City Attorney has no legal basis for demanding (as opposed to requesting, by appeals to a sense of fairness or journalistic standards) that the blog stop publishing false information about the City -- under New York Times v. Sullivan (1964), there can be no lawsuit for libeling a government entity.

The NYT v. Sullivan Court stated that "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," and it endorsed this tradition as being constitutionally mandated. So while I certainly think it's wrong to make knowingly or recklessly false statements about government entities, and while it may be libelous to make such statements about particular city employees or officials, it cannot be libelous even to say outright lies about the City of Pomona more broadly.

John (mail):
Doesn't this city lawyer, acting under color of state law, subject himself to a lawsuit by his efforts to stop the exercise of constitutionally protected activities? At least an injunction?
5.11.2007 7:32pm
loki13 (mail):
To Clarify,

I am protected in a statement against a city-

"New York sucks."

I am not protected if I make a libelous statement against a private organization-
"Yankees suck."

However, the truth of the second statement is incontestable, and you cannot be sued for telling the truth....

Unless I were to take full page advertisement out at Tufts?
5.11.2007 7:48pm
I know nothing of the facts of the alleged libelous publication(s) except what I read in the links. The allegedly libelous material wasn't displayed.

But if Football Cities hadn't knuckled under and pulled all Pomona related posts, and the city of Pomona sues, I'd lay good odds on a successful anti-SLAPP motion to strike, and attorney fees paid to Football Cities by Pomona.

Just for starters, the letter from the Pomona city attorney does not demand retraction of any specified statement. It demands only that the blog remove some vaguely referenced posts about Pomona. If a blog is treated like a newspaper under CA law (a big "if"), then without a retraction demand the city could only recover special (pleaded and proved) damages even if the statements were found libelous. See Cal. Civil Code 48a.

Second, it is not clear to me that the city attorney can represent individual elected representatives or employees as clients as he seems to be claiming. The conflict of interest is pretty apparent. I could be very wrong on that, so maybe some experienced civil litigators here can give a clear statement of law on it.

But that letter just smells like the prelude to a SLAPP suit.
5.11.2007 8:02pm
BruceM (mail) (www):
You can only defame (slander, libel) a human person. You can't even defame a dead person (see Johnny Cochran case). You can't defame a business entity (there is business disparagement though). How can you defame a governmental entity? Unless the attorneys bringing this case have some caselaw on point that I have not seen, they should be sanctioned and disbarred for bringing a patently frivilous lawsuit.
5.11.2007 11:14pm
Lycurgus (mail):
But the City hasn't brought a lawsuit, so how can the City or tthe City attorney be subject to sanctions?
5.12.2007 2:08am
Brett Bellmore:
It's only to be expected, given the Court's campaign censorship rulings to date, that suits like this will become more common; The Court has been signaling that it really does not take the First amendment seriously. As a result, all sorts of people and institutions that find the First amendment inconvenient are probing how little of the 1st amendment is left. Sure, we think such suits are unlikely to prevail, but then, who thought the BCRA would be upheld the way it was?
5.12.2007 9:56am
This is the type of behavior seen in places like Venezuala and Russia to limit criticism of the government. Football Cities should put the information back up as a challenge. FC shouldn't even need much if any legal representation as I find it difficult to believe that any judge would allow a suit by Pomona to go forward.

Prof. Volokh, in your opinion would you have advised proper (and expensive) legal representation for FC or should they have treated the letter as a bluff? Is the earlier poster correct that an anti-SLAPP motion to strike with reimbursement of legal fees likely would be successful?
5.12.2007 10:30am
George B Ditter:
Frequently lawyers are asked by clients to do things that the lawyers know are improper, but they think they can get away with. So you have a city attorney under color of state authority making a demand that, assuming he went to law school, he or she knows is an empty threat, but maybe a threat is all that is needed and it will make the client happy. This type of activity is scandal to the profession. By the way, Brett, I may not have been following the Court's campaign with sufficient care, which are the cases you refer to?
5.12.2007 10:32am
David Maquera (mail) (www):
A prior post inquired if a city attorney can represent city employees or elected representatives. If there is no conflict of interest between the city and the city employees/representatives, an attorney can represent both the city and employees/representatives.

However, the general rules is that a city attorney is an employee of the city and (without knowing the terms of the employment relationship between the city attorney and city) only represents the city -- not its employees or elected representatives. For instance, there may come a time when a city is in an adversarial posture with one of its employees/representatives. In such instance, the city attorney clearly represents only the city and not the employee/representative.

Bloggers are an easy target for threats of defamation lawsuits. Even if such a threat is meritless, the blogger is generally an individual faced with the prospect of incurring tens of thousands of legal fees that may or may not be wholly reimbursed at the end of the legal proceedings which could drag on for a couple of years.

Nevertheless, it sounds like the Pomona City Attorney went to the same law school that Mike Nifong did because the demand letter shows that s/he clearly does not know the law of defamation regarding government entities.
5.12.2007 11:54am
George B Ditter said:

Frequently lawyers are asked by clients to do things that the lawyers know are improper, but they think they can get away with. So you have a city attorney under color of state authority making a demand that, assuming he went to law school, he or she knows is an empty threat, but maybe a threat is all that is needed and it will make the client happy. This type of activity is scandal to the profession.

Can and should such behavior be penalized by the state bar association?
5.12.2007 8:43pm
Let me ask this question, a serious one: What do lawyers have to lose if they make completely baseless demands?

There is always the possibility that recipients of these letters, ignorant of the law, might comply. Is there any downside to a lawyer making a baseless demand letter? If there is no practical downside but there is a potential practical upside (as many are ignorant of the law, fear even baseless lawsuits, or both), why shouldn't we expect baseless demand letters to proliferate?
5.13.2007 12:46am
Kevin Murphy:
Seeing how the City of Pomona was generally viewed as an armpit when I was going to college in Claremont, I can't see how one could possibly libel it.
5.13.2007 3:44am
IANAL, but isn't this barratry? Isn't barratry the name for some specifically-defined legal no-no, with penalties or liabilities defined?

Or is it only barratry when repeated, and meant to harass rather than to intimidate?
5.14.2007 12:30am
arbitraryaardvark (mail) (www):
The letter is from the government and makes a demand, so that's a concern, but in my reading of the letter I find no express threat, either of a libel-against-a-municipality action, or of the "you wouldn't want your legs to get broken, wouldja?" variety.
If the blog had made a knowingly or grossly reckless false report that the city employee was going to be fired for cause, that employee could bring a libel action, subject to Sullivan,and if his contract says so, the city could represent him via its attorney. So the municipality-libel issue is a strawman, not actually presented by the facts here. Now, sure these are interesting facts, that lead right into a discussion about cities and libel, or group libel more generally. But the impression EV gives in the post is that the city attorney has said the city will sue for libel against it, when that just isn't in the letter.
Now, if the employee is about to be fired, and the lawyer knows this is true and is trying to cover it up, that would be a different set of issues. But that seems unlikely.
I found the letter unnecessarily rude and tactless, but not improper.
5.14.2007 1:07am
arbitraryaardvark (mail) (www):
The employee in question assures us that he was going to retire anyway, and his relationship with the young woman was purely plutonic. Link.
One of the characteristics of blogging is that the posts can change as the story unfolds. I think it was reasonable here for the blogger to take down the post, not because of a threat, but because the story didn't check out.
5.14.2007 1:14am
arbitraryaardvark wrote at 5.14.2007 12:07am:
But the impression EV gives in the post is that the city attorney has said the city will sue for libel against it, when that just isn't in the letter.
First, I'll admit that closer examination of the letter shows I erred that the letter didn't demand retraction, just takedown. The closer reading involved literally viewing the letter JPG in an offline program to magnify it and increase the contrast to make it legible. I found the word "retract" buried in the fifth graf.

But I can't agree that the letter doesn't say that the city will sue. The letter refers to "my client", and claims to represent the city as well as other employees or officers of the city. The first graf of the letter indicates that it is "the City of Pomona's response". The first graf of the second page makes a clear threat of a defamation suit. I think that whether the city attorney meant that the city would sue, or some other party would sue, is at least ambiguous.

I think the letter is weasel-worded, and intentionally so, to intimidate the blogger into not mentioning Pomona further in any critical manner. As the blogger made clear in the post that Eugene linked, he had posted an email rumor he had received, had made a clear statement that the rumor was a rumor, and had allowed (and indeed solicited) the city and its officers and employees to respond to the rumor in his ongoing blog publication.

The city's response was to bounce his email inquiries, and threaten a defamation suit if he didn't shut up. That's not a way to make friends for the City of Pomona. The general public now knows that city government's first response to any inquiry they don't like is to put their fingers in their ears and shout "Nyaa Nyaa Nyaa I can't hear you! And I'm going to sue you if you don't shut up!"
5.14.2007 12:44pm
The City of Pomona directly orders dozens of murders every year, and thus has been responsible for hundreds of deaths. Also, it is a well-known fact that many of the corporate scandals of the last decade were orchestrated by the City of Pomona, in order to further its own nefarious agenda.
5.14.2007 1:14pm
Rain in the City of Pomona causes cancer. At least it has
never rained there.

The Four Horsemen of the Apocalypse actually live in the City Hall of the City of Pomona.

The NYPD claims to have killed 20,000 unarmed innocents. The City of Pomona calls this "a slow tuesday."

The City of Pomona does not sleep. It hibernates.

The chief export of the City of Pomona is pain.

The quickest route to a man's heart is the City of Pomona's police department.

When New York City burns a lump of coal, it gets electricity. When the City of Pomona burns a lump of coal, it gets the dinosaurs back.
5.14.2007 2:58pm
Christopher Cooke (mail):
Having read the entire letter, and the blog postings, it is unclear to me if the City Attorney was threatening a defamation action on behalf of the City Manager, some "employees", or one on behalf of the City of Pomona. I think he meant the City Manager, and a certain employee, about whom the bloggers made some very unflattering remarks that, if untrue, could be harmful to his reputation. So, while the letter may have been sloppily written, the City Attorney easily could have sent a technically valid demand for retraction on behalf of the City Manager and the employee who is referred to in the blog postings. It is my guess the City Attorney did little or no legal research before dashing off this "stop it now" type of letter.
5.14.2007 8:24pm