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.
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?
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.
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?
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.
Can and should such behavior be penalized by the state bar association?
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?
Or is it only barratry when repeated, and meant to harass rather than to intimidate?
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.
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.
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!"
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.