Defamation Or Free Speech? A First Amendment Lawyer Explains

Sep 5, 2017

Two Seattle police officers recently filed a lawsuit against Seattle City Councilmember Kshama Sawant for defamation of character.

They say she defamed them when, shortly after it happened, she referred to the police killing of Che Taylor, an African American man, as a “brutal murder.” They point out they were eventually cleared of wrongdoing in the killing by an inquest jury. 

First Amendment attorney Michele Earl-Hubbard, who isn’t involved in the suit, says you have to meet a high bar to prove defamation. For one thing,  you have to show that what the public official said was based on facts that could be verified rather than on someone’s opinion.

“When I read the statement that was in the lawsuit,  I thought that’s opinion. You say something’s "brutal" or not and you really can’t prove that. That’s a matter of impression,” she said.

By contrast, if you called the officers “convicted murderers” after they were cleared, that would be a fact-based and untrue statement.

Earl-Hubbard says another high bar in a defamation suit is proving malice. That means the person knew what she said was false or didn’t care and were reckless in repeating it.

Earl-Hubbard says it doesn’t really matter that the policemen are suing Sawant as an individual, not as a government official.  She says when Sawant speaks publicly, it is as a member of the City Council.

Public officials are given great leeway in what they say by design. 

“Some of that is because I think we’re entitled to know what our officials are thinking, we want to know what is in their heads,” Earl-Hubbard said.

She says in the rough-and-tumble world of politics, lots of things get said. Just look at President Donald Trump's Twitter feed.

KNKX also talked with Earl-Hubbard about some related issues. Here are some highlights from the interview:

On the role of social media and changing standards of acceptable speech

“The things that you see on social media these days are sort of mind boggling to those of us who were used to speaking without bad words and name-calling at one time. Standards have changed somewhat. We are much more accepting of the fact that people will shoot their mouths off, will say things that are not completely true."

On what even she calls “irresponsible speech”

She says she recently gave a speech to a fifth grade class on the “rights and responsibilities of the First Amendment.

“We talked a lot about that, that we have a lot of free speech in this country, but that there should be some responsibility from the speaker, realizing the incredible privilege you have that you have such free speech, to try to make your speech add value as opposed to harm,” she said.

On placing restrictions on "irresponsible" speech

This won't surprise you. Earl-Hubbard opposes placing any restrictions on speech, no matter how abhorrent. She says you should counter such speech, not with lawsuits or censorship, but with more speech.

“The problem is once you start letting someone else decide what’s worthy speech and what’s not, then the minority's views get squelched,” she said.

And, Earl-Hubbard says, often the most important things that have been said and have changed the way our nation operates are the minority views that no one else was willing to say.