This article is reprinted with permission from the September 9, 2013 edition of The Recorder.
by Dorit Reiss
There are substantial public benefits when public employees who know public health use their expertise to provide accurate information to the public on health matters and correct misconceptions. But what if their employer is worried about retaliation or harm to it from such efforts?
An employee in a public institution spends part of his time commenting on public health issues and informing the public through a personal blog, on which his position is mentioned. The employee provides information, corrects misconceptions, and criticizes those offering bad advice or factually inaccurate information, sometimes with strong language. A person so criticized contacts the public institution and threatens to sue for defamation if the blogging does not stop and the statements are not retracted, or if the employee is not otherwise dealt with. Should the employer act?
An employer can legally defend the employee. First, there is likely no defamation case under the common law or the First Amendment. Second, there are limits to the ability of a public employer to fire an employee for his speech that likely apply here. Finally, there are public benefits from allowing the employee to speak in this manner.
The Limits of Defamation
Even if the employer can be vicariously liable for an employee's defamation, there is probably no case here for defamation even under the common law standard, much less under the First Amendment.
A communication is defamatory if it causes harm to the plaintiff's reputation or can cause others to shun the plaintiff. Criticism would not be actionable in common law as long as it is substantially true and/or involves pure opinion and name-calling or hyperbole. And on matters of public concern (like these) the plaintiff has to prove that the statement was false. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986). Pure opinion, which cannot be shown true or false — value judgments not based on facts — is not defamatory (e.g., your haircut is ugly), nor are name-calling and hyperbole. Weyrich v. New Republic, Inc., 235 F.3d 617. A statement made in the context of an internet debate is even less likely to be defamatory, since the use of "epithets, fiery rhetoric or hyperbole" is expected.
The burden is even higher when the person addressed is a public figure, either because he is widely known or because he "voluntarily injects himself or is drawn into a particular public controversy." (Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287 (D.C. Cir 1980)). In that case the plaintiff must show clear and convincing evidence of actual malice: that defendant knew the statement was false or was reckless as to the truth or falsity of the statement (New York Times Co. v. Sullivan, 376 U.S. 254). Mere criticism is not defamation, and even if the employee made an error, absent actual malice or recklessness, it is not defamation. Adding an insult or an opinion does not make a statement defamatory.
Limits on the Ability to Sanction an Employee for Speech
There are at least three potential limits on the ability of a public institution to act against an employee. First, a collective bargaining agreement may limit reasons for sanctioning an employee and offer protection. Second, even without a collective bargaining agreement, civil servants in some states enjoy tenure protections. These protections will vary.
Finally, there are constitutional limits the Supreme Court imposed on the ability of a public employer to act against the employee for things the employee said. An employee is constitutionally protected if she spoke as a citizen about a matter of public concern (Garcetti v. Ceballos, 547 U.S. 410 (2006)), including anything that relates "to any matter of political, social, or other concern to the community" (Snyder v. Phelps, 131 S.Ct. 1207 (2011)). Public health issues clearly fit this description.
It could be argued that those in health-related professions have an official duty to educate the public on matters of public health, and acting according to their official duties is not acting as private citizens. Kaye v. Bd. of Trustees of San Diego County Pub. Law, 179 Cal.App.4th 48 (2009). But such a broad interpretation would profoundly limit an employee's ability to express a personal opinion on health-related matters in the social media in her spare time.
Not only is that a very serious restriction of the employees' free speech, but it would silence the voices of those with immediate knowledge of public health problems and the resources available to deal with them, and prevent reliable information from reaching the public. That is a problematic result, and does not fit the situations in which employees were found to be speaking in their official duties. In those cases, the speech was a direct part of the employee's responsibility (e.g., a memo addressing a case a deputy distrct attorney was directly working on, Garcetti v. Ceballos, 126 S.Ct. 1951 (2006), or opposition to being transferred and a questionnaire on work morale in Connick v. Meyers, 461 U.S. 138 (1983)). In contrast, a teacher's opinion criticizing school board policy, expressed in a letter to a newspaper, was not part of his official duties. Pickering v. Board of Education, 391 US 563 (1968).
In this case, a personal blog is a personal blog. An employee speaking about matters of public health in her spare time is not acting pursuant to her official duties, even if she is speaking on matters of public health. When an employee is speaking as a citizen on matters of public concern, the cases balanced an employee's interests with the interest in providing public services; but application of that test in previous cases suggests that the court was concerned about disruption of the government work resulting from disruptive behavior on the part of the employee, not for cases of this kind. The danger of a problematic, probably baseless law suit is not sufficient to allow the employer to silence the employee, because that would allow others to silence critics in a public debate whenever their critic works for a public agency — a result that runs counter to the core intent of the First Amendment.
Public Benefits from allowing Employees to Speak
There are good reasons for a public employer to back an employee in this situation. Accurate information on public health is important, as is correcting misinformation and calling out those who attempt to silence providers of information. Those with health-related expertise are especially well placed to comment on these complex issues, and a public official who cares about public health enough to devote time to educate the public is an asset. A suit can be filed, but the law offers those sued powerful protections. There are also legal limits on the ability of a public employer to act against an employee for such a cause. Employers should not attempt to silence employees because of pushback from those criticized.
Dorit Rubinstein Reiss is a professor of law at UC Hastings College of the Law in San Francisco.
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