Mimesis Law
28 May 2020

To Protect Cops, Will the Supreme Court Outlaw Fault Lines?

August 24, 2016 (Fault Lines) — Police officers are public officials. That means that we can complain about them in their public capacity without worrying that we will be sued. But one petition pending before the United States Supreme Court is trying to change that. In Armstrong v. Thomas, a public official is asking to be treated in his public capacity the same way we all are in our private lives.

Armstrong worked for the Office of the Treasury Inspector General for Tax Administration (TIGTA). He carried a gun, referred cases for prosecution, and supervised five to seven employees. But his co-worker, Karen Thomas, reported him for what she said were serious ethical violations—looking into criminal databases without authorization. An investigation ensued, and before long, Armstrong started looking for work elsewhere, because he’d been stripped of his badge, gun and government computer.

But Thomas wasn’t content to see a bad apple move on to another barrel—she sent six letters to the USDA, letting them know that Armstrong was under criminal investigation. The agency, which had been considering hiring Armstrong for a criminal investigator position, changed its mind. A month after that, TIGTA told him to resign.

Armstrong sued for defamation, violation of his privacy, and tortious interference with contract, arguing that Thomas’s claims weren’t “true” because the government had decided not to charge him criminally shortly before he interviewed with the USDA. But he couldn’t win on this theory, because, while the claim was not literally true, it was certainly “substantially true,” the standard used for public officials in matters of public concern.

See, in 1964, the United States Supreme Court issued one of the most important free speech rulings of all time: New York Times v. Sullivan. To suppress reporting on horrific civil rights violations carried out against black Americans, southern towns were suing news organizations for libel if there were even minor misstatements of fact. Montgomery, Alabama officials decided to sue the New York Times over an ad taken out in its pages, accusing the city of arresting Martin Luther King Jr. seven times. He was actually arrested only four times.

The Supreme Court recognized the extreme chilling effect such lawsuits could have on speech. If a news organizations could be sued merely for angering a powerful person, journalists would not be free to tell the public the truth as they saw it.

The vigorous criticism by press and citizen of the conduct of the government of the day by the officials of the day will soon yield to silence if officials in control of government agencies, instead of answering criticisms, can resort to friendly juries to forestall criticism of their official conduct.

So, government officials can’t just point to any minor factual misstatement and scream libel or slander. They have to show actual malice—that the person making the claim knew or recklessly disregarded that it was not true. And minor factual misstatements won’t make a claim untrue so long as the “sting” or the “gist” of the statement is true.

Here, Thomas told the USDA that Armstrong had had his gun and badge stripped from him. That he was deprived of a government computer. That he lost all of his managerial and law enforcement powers when his wrongdoing was discovered. All this was true. And he had been under criminal investigation, even if that investigation had concluded before he interviewed with the USDA. As a public official, he couldn’t use that slight misstatement of fact to win. So the D.C. Circuit Court of Appeals held that “The assertions of fact in Ms. Thompson‟s letters … were substantially true as a matter of law.”

So now, Armstrong is asking the Supreme Court to exclude “run-of-the-mill police officers and their immediate superiors” from the category of public officials:

Based on an obvious distortion of this Court’s precedent, courts across the United States are categorically depriving the country’s nearly nine hundred thousand law enforcement officers of their rights to protect their reputations and their personal privacy under state law.

But this is an insanely dangerous proposition. Police officers are already widely immunized from all but the most serious and well-supported charges of misconduct. Even video doesn’t always do the trick. Police unions have proven to be litigious and effective on behalf of their members.

It’s terrifying enough to come forward to whatever half-assed disciplinary review board your city may have to complain about an officer. You know in advance that it is likely that nothing will be done. That at best, you can only hope your concerns are piled on over the years until someone does something. But add to that the risk that the officer will sue you if any part of your complaint is not fully accurate? You can say goodbye to accountability, and hello to a system where the “governed cannot criticize their governors.”

Police officers aren’t like postal workers or court clerks or army recruits. They wield enormous amounts of power and are vested with tremendous discretion. That’s not to say that everything about the officer’s private life is up for grabs—it would be pretty crappy to allege that an officer is molesting his step-son in a radio advertisement, for instance, without good reason to think that it’s true. But as long as someone is holding a gun and has the power to decide when to use lethal force, he’s plenty powerful enough to be subject to public criticism.

The Supreme Court of the United States has not yet decided whether to grant cert. In fact, opposing counsel has not even filed a response to the petition and amicus yet. But this case touches a lot more than whether one officer at TIGTA had a “vendetta” against another. It decides whether websites like Fault Lines can continue as a going concern in criticizing officer conduct, or whether we must fear any minor misstatement of fact might lead to a ruinous lawsuit.

Justice Black said it best:

This Nation, I suspect, can live in peace without libel suits based on public discussions of public affairs and public officials. But I doubt that a country can live in freedom where its people can be made to suffer physically or financially for criticizing their government, its actions, or its officials.

2 Comments on this post.

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  • Matthew Cline
    24 August 2016 at 11:18 pm - Reply

    1) Doesn’t “substantially true” apply regardless of whether the plaintiff is a public person or private person?

    2) Does testimony at disciplinary hearings for government workers not carry anything similar to litigation privilege?

  • Eva
    28 August 2016 at 1:41 pm - Reply

    Respectfully counselor I disagree.

    Apparently the submitters of this site must be brave and smart enough to know this conversation here is important. For everybody.

    Even if this all comes to pass you will figure out a way to continue.