From the Deltona (Florida) City Commission After Action Agenda (Feb. 16, 2009):
After discussion, the Commission voted 4 to 3 (Commissioner Denizac, Commissioner McFall-Conte, and Commissioner Zischkau voted against the motion) for the City to provide reimbursement and expenditures of legal fees to protect both proactively and reactively the City as a government including its employees and its Mayor and those members who wish to be represented in the this motion, Commissioner Treusch, Commissioner Deyette, Vice Mayor Carmolingo and Mayor Mulder where needed from material damages, slanderous or libelous comments or claims and unsubstantiated allegations past, present and future where the Mayor feels is needed and that a report of fees expended be made available to the public so they may see the extent of damage that has been caused.
Here's audio of the Mayor's presentation in favor of the resolution. The proposal was apparently triggered by online criticism of various city officials.
Libel lawsuits by government officials are of course constitutionally permitted, and may prevail if the statements are found to be false and defamatory factual assertions, and the speaker is found to have known the statements were false or to have known that the statements were likely false. There's no First Amendment rule that would bar government agencies from funding such lawsuits. And there's a plausible argument that the lawsuits serve city interests (and thus justify reimbursement) and not just private interests, since libels of city officials may indeed interfere with the effectiveness of city government, and since city officials may have been victimized by the libels -- if they are libels -- because of their government service.
At the same time, this strike me as a bad idea, especially since the city doesn't offer to fund the defense of such libel lawsuits, even though defense of the lawsuits -- especially a successful defense -- may also serve government interests: Speech that accurately criticizes city officials serves city interests, too, by alerting the public to possible malfeasance by government officials. And defending such speech against unfounded libel lawsuits would likewise city interests, by minimizing the deterrence of such speech. (I do not read Florida's limited anti-SLAPP statute as already providing such reimbursement to successful defendants.)
The government's entering the debate, using city funds, in favor of city officials and against citizens who criticize those officials, thus seems to me to be misguided. And one site that is critical of officials argues that it violates the city charter:
(a) Compensation. The Mayor and members of the City Commission shall receive annual compensation, payable bi-weekly, equivalent to average annual salary of the Mayor and Commissioners in the cities within Volusia County. Said compensation shall not include benefits, except medical benefits under the City's group health insurance plan, the premium costs of which shall be fully paid by the members of Commission who elect coverage. Said compensation shall be identified as a line item within the annual budget and shall be automatically adjusted every two years coincident with adoption of the annual budget.
(b) Expenses. The Commission may provide for reimbursement of actual expenses incurred by its members while performing their official duties.
(And, if the suit is successful, will the plaintiff reimburse the city for fees?)
Since they get to use taxpayer dollars, they will be more likely to bring frivolous suits in order to harass innocent people.
A libel lawsuit causes the defendant to reach in their pocket to pay legal fees, which can be quite substantial, and to reach still deeper, if indeed their pockets are that deep, to pay any judgment against them should they lose. Deltona is going to subsidize the prosecution of libel lawsuits by the mayor and the three council members who voted with him to authorize such subsidies (but not libel lawsuits that may be filed by the three dissenters) when they don't like what has been published about them. Will the city only underwrite such suits when the alleged libel clearly concerns the performance of government duties, so they won't cover lawsuits if, for example, the mayor wanted to sue because he was called out as an adulterer? Suppose it was said he was "corrupt" but no specific charges of "corruption" were leveled, would the city underwrite a libel lawsuit in that case?
I'm not sure what Mr. Cassidy had in mind when he objected on the basis that this measure would violate the city charter with respect to "compensation." That sounds to me like at least a colorable claim on its face, and if his objection goes beyond the payment of legal fees and expenses on behalf of those who voted in favor of the measure to include the prospect of monetary damages being paid to the city official rather than the city coffers, then I think his "compensation" objection may have even more going for it.
While I, like EV, can see some justification for the measure, I think the demerits far outweigh any merits. And as a condo owner who has successfully sued his condo association for one of the many stupid things its board of directors has done, this one actually violative of my property rights, I see another reason not to like the Deltona measure: even if successful in defending against a libel lawsuit, and perhaps successful in a countersuit, the citizen will have to bear their own legal expenses, while the government officials get a free ride, and the citizen's expenses will include not only those directly incurred by them, but also the citizen's pro rata share of the government's! (To be sure, their pro rata share will be less substantial when it is a portion of the government's expenses rather than when it is a share of a small condo association's expenses, but it still adds insult to injury, making it that much more objectionable.)
Who is going to decide whether a libel lawsuit has a snowball's chance in hell and should be brought, the city attorney who answers to the mayor and council? Not much of a check on abuse.
Hopefully, citizen Cassidy will succeed in blocking this unwise measure from taking effect.
It's also not clear how government paying a plaintiff's legal fees for a voluntary suit doesn't constitute maintenance.
That's before even considering free speech and chilling effects.
1) The filing of a lawsuit will publicize the libel to a greater degree that already exists. In most cases, the libel would have to be pretty egregious and persistent before the official would file.
2) There is a natural check on the filing of frivolous lawsuits: elections. A commissioner had better be pretty sure before filing, otherwise he or she is giving an opposing candidate a great issue.
3) I'm sure the municipality will have to establish some sort of vetting process to determine what instances of alleged libel are worth pursuing.
Not hard to identify many very financially successful plaintiffs med mal attorney who regularly take big cases on a contingency basis, but does anybody know of attorneys who have prospered doing libel cases on a contingency fee basis? I don't.I'm not sure where you found in that story the suggestion that "they could have chosen to be covered even though they voted against it." But even if that is/was the case, and I don't think it implausible, I'm not sure there may not still be a problem because it applies selectively. And is it wholly unlike a legislative body voting a pay raise for all of its members save those who voted against the raise did not object in their own exclusion from the benefit? Shouldn't the raise if enacted go to all, and those who don't want to accept it would be free to return the extra money.
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[Anybody want to hear me rant about my lawsuit against our condo association for what the board of directors, personally protected by D&O insurance, did to violate our property rights, making it necessary for me to spend money for my attorney and my share of what was paid to the association's? No, I didn't think so.]
I prefer to respond to names only where a thread contains many various names and arguments, since online the less personal is the dispute the more civil. My two citations of Blackstone in a single post refers to your extraordinarily long citation, and I used them both to honor your use not to ridicule and also to indicate US laws' evolving from English laws; while US laws evolved from English ones, they have indisputably mutated: numerous SNL often degrading impersonations of serving US presidents and numerous often provocative newspaper editorials on serving politicians all make clear US' differences from Blackstone's England.
The speech cited above as "online criticism" has the same nature as that sanctioned in Chaplinsky vs. New Hampshire; if "fascist" be unprotected speech then wouldn't "corrupt criminal" or "weird rodent" be?
Recently the courts of Denmark and Thailand prosecuted aliens under lese majeste, a reference to the Roman maiestas laesa; so prosecutions for insults to state authority persist today in modern states; since states effect peace and order not only by arms but also through maiestas, states must prohibit and punish insults to their maiestas; where some citizens despise authority and insult the state with impunity, as in South Central in 1992, riots and other forms of disorder ensue.
Apropos Thailand, cognitis's illustrative example, it might be noted that while anything that smacks of disrespect for the monarch isn't tolerated there, but it may be seen that that hasn't guaranteed them a stable government. As for here at home, I don't think resort to libel lawsuits would have done anything to forestall the LA riots. But who knows, maybe we will see more stability in Deltona, FL now that their city council has implemented this measure to promote respect for authority there. Rodney King's call for everyone to get along with one another didn't work, so perhaps a new approach should be tried.
You said, "England's and America's law does not suffer insults either against government's authority or the authority's officers." But the modern American rule would more accurately be phrased as "America's law does protect insults against government's authority and the authority's officers, though it allows the officers to bring lawsuits for knowingly/recklessly false and defamatory factual allegations" (the latter being a separate category from insults, since some insults are nondefamatory). You do say, in your later comment, that "US laws" have "mutated" from the English laws; but your earlier comment seems to assert that American laws follow the Blackstonian model, at least insofar as they punish "insults ... against government's authority or the authority's officers." That earlier comment strikes me as mistaken.
As to your reliance on Chaplinsky, that strikes me as mistaken as well, though for another reason: The speech in Chaplinsky is punishable only because it is a face-to-face insult of the sort that is likely to cause an imminent fight. As Cohen v. California, 403 U.S. 15 (1971), and other cases (e.g., Gooding v. Wilson), make clear, that does not generally allow punishments of insults more broadly, such as long-distance insults posted online (or sent in letters or some such) that aren't likely to cause an imminent fight. I bring all this up in detail because I don't want other readers to be misled by these assertions.
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