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Florida City Authorizes Use of City Funds to Sue for Libel of Government Officials:

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.

Houston Lawyer:
What an awful idea. I would like this perq added to my compensation package. Then I could start posting under my actual name and suing anyone who disagreed with me.
2.23.2009 12:43pm
Bored Lawyer:
Query whether the City will provide any screening function as to the merits of a libel suit before it agrees to fund it. Under NY Times v. Sullivan and its progeny, suits against public officials, while not impossible, are very difficult. Is anyone going to ask the putative plaintiffs how he or she plans to prove legal malice before agreeing to fund the suit?

(And, if the suit is successful, will the plaintiff reimburse the city for fees?)
2.23.2009 12:56pm
Wilpert Archibald Gobsmacked (mail):
I disagree with you, so why don't you sue me and we'll our employer's to pay the costs? Sounds like a win-win-.........what do you mean, it's time for my annual review?
2.23.2009 12:57pm
Why are you surprised? (mail):
Government works for those who govern.
2.23.2009 1:12pm
Daryl Herbert (www):
If they had to use their own money to bring libel lawsuits, they would have to make decisions based on whether they would be likely to recoup their investment.

Since they get to use taxpayer dollars, they will be more likely to bring frivolous suits in order to harass innocent people.
2.23.2009 1:29pm
JoeSixpack (mail):
The gravest concern here is the chilling effect when these public officials can use taxpayer funds to proactively sue people who criticize them. I'm surprised Obama hasn't thought of this!
2.23.2009 1:35pm
Ben P:
I come here to see if there's a post about Samuel Kent resigning and I am seriously disappointed.
2.23.2009 1:47pm
neurodoc:
Thumbs up to Lawrence M. Cassidy, who signs himself "Deltona Citizen," for taking this to the Florida AG.

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.
2.23.2009 1:48pm
neurodoc:
BTW, would it fly if Congress, a state legislature, county/city council or other government body were to vote itself a pay raise, but limit the pay raise by law to only those who voted in support of the raise? It seems to me that would be legally problematic. (OK, individual legislator, make a show, if you will, of safeguarding taxpayers' money by voting against a pay increase for us, but then you won't get the raise if the measure passes.)
2.23.2009 1:54pm
PersonFromPorlock:
There's a small unintended consequence here, though: the covered city official who doesn't sue for a libelous-if-false statement is going to be presumed to fear losing because the statement is true. So officials will be forced to respond - even if the response is something short of a libel suit - to challenges which might, from their viewpoint, better be ignored.
2.23.2009 2:33pm
Binky:
How much public funds would actually be used, considering libel suits are usually on contingency. I think this sounds like a pretty good idea.
2.23.2009 2:55pm
Frog Leg (mail):
Other question: would the city's use of funds for the benefit of individuals constitute taxable income for those individuals?
2.23.2009 2:56pm
BerkeleyBeetle:
Neurodoc, it seems that the legislators who were not covered chose not to be covered on principle, so I don't think the comparison to selective pay raises is appropriate. The story suggests they could have chosen to be covered even though they voted against it.
2.23.2009 3:08pm
austinred:
If nothing else, the benefit derived by the mayor and majority from the use of public funds seems a clear and direct conflict of interest, even if they have an argument that the city would also benefit. So at the least the majority should have recused itself.
2.23.2009 3:09pm
cognitis:
Municipal officers represent the municipal authority and both perfect duties and also exercise rights for cause of that authority; citizens, then, who insult municipal officers insult not only the persons of a municipal office but also the office itself and, in addition, the authority of the municipality; such officers are protected according to Blackstone as follows:
The privileges of privy counselors, as such, consist principally in the security which the law has given them against attempts and conspiracies to destroy their lives.

Blackstone defines such insults as Public Wrongs as follows:
Contempts and misprisions against the king's person and government, may be speaking or writing against them, cursing or wishing him ill, giving our scandalous stories concerning him, or doing anything which may tend to lessen him in the esteem of his subjects, may weaken his government, or may raise jealousies between him and his people.

England's and America's law does not suffer insults either against government's authority or the authority's officers.
2.23.2009 3:50pm
Fub:
Seems to me that a government entity funding elected officials' voluntary suits would encourage barratry. Lawyers would be lining up around the block to lobby officials for some easy fees, offering to bring near frivolous suits against outspoken citizens or political enemies for anything they say.

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.
2.23.2009 4:06pm
Floridan:
I doubt that this measure will lead to wholesale libel suits on behalf of municipal commissioners.

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.
2.23.2009 4:10pm
Eugene Volokh (www):
Cognitis: I'm not sure whether I'm missing some joke or irony in your post, but in case I'm not, let me stress that American First Amendment law is now very far from Blackstone's articulation of English common law. In particular, while public officials may sue for libel -- just as other public figures may sue for libel -- they can prevail only under circumstances much narrower than what Blackstone describes. And "insults against government's authority" are as well as mere insults (as opposed to knowing or reckless falsehoods) about government officers are generally constitutionally protected, outside very narrow exceptions such as threats or "fighting words."
2.23.2009 4:52pm
Steve2:
For some reason, this reminds me of the Kidwell v. City of Union lawsuit a couple years back, when some citizens sued their town for allegedly using public funds to campaign against a referendum that would have prevented the city from imposing some tax. I'm not really sure why, though, since there doesn't seem to be a concisely describable concept that encompasses both situations.
2.23.2009 5:16pm
Fub:
Steve2 wrote at 2.23.2009 5:16pm:
For some reason, this reminds me of the Kidwell v. City of Union lawsuit a couple years back, when some citizens sued their town for allegedly using public funds to campaign against a referendum that would have prevented the city from imposing some tax. I'm not really sure why, though, since there doesn't seem to be a concisely describable concept that encompasses both situations.
From a policy perspective (not legal, although maybe there oughta be a law) the concept that encompasses both situations is that the government is spending revenue raised from taxpayers (or stolen, depending on your perspective), to squelch or overcome political speech by citizens.
2.23.2009 6:57pm
neurodoc:
binky:How much public funds would actually be used, considering libel suits are usually on contingency. I think this sounds like a pretty good idea.
Libel suits are usually on contingency? Not in my experience, and I doubt many are given the uphill climb that most libel suits are for plaintiffs. To get competent counsel to take a case on a contingency basis, the expectancy has to be very substantial, that is the probability of success high and the potential payoff $$$$$ to induce that counsel to put their time into it. (And if it were easy to get competent counsel to do it on a contingency basis, then the council's action would have been pointless, wouldn't it?)

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.
Berkeley Beetle: Neurodoc, it seems that the legislators who were not covered chose not to be covered on principle, so I don't think the comparison to selective pay raises is appropriate. The story suggests they could have chosen to be covered even though they voted against it.
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.


***************
[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.]
2.23.2009 8:27pm
Steve2:
Fub, that was a concise description of what those situations have in common. Thanks for scratching that itch.
2.23.2009 10:31pm
cognitis:
Professor Volokh:

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.
2.24.2009 1:15am
neurodoc:
Well, know we know that cognitis is no First Amendment absolutist; he watches but doesn't approve of Dana Carvey, Darrell Hammond, or Will Farrell; and he is definitely a law and order type.

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.
2.24.2009 5:18am
Eugene Volokh (www):
Cognitis: I'm not sure I understand your reliance on Blackstone.

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.
2.24.2009 10:11am
Marc J. Randazza (mail) (www):
2.26.2009 7:19am

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