In the last month, two cases have surfaced accusing Seattle City Council member Kshama Sawant of defamation. In July, notorious Seattle landlord Carl Haglund filed a claim with the city indicating that, unless he receives a settlement in the next two months, he intends to sue Sawant and the city because she called him a "slumlord" in 2015. (He wants $25 million.) On Friday, the two police officers who fatally shot Che Taylor in 2016 filed a lawsuit against Sawant, saying she defamed them when she called the shooting a "brutal murder" that involved "racial profiling." The officers were cleared of wrongdoing after an inquest jury found they feared for their lives. (They have not named a specific dollar amount.)
Do either of these cases stand a chance?
Not likely, says a lawyer for the American Civil Liberties Union of Washington.
"It’s a very, very high bar" to prove defamation, says Emily Chiang, legal director at the ACLU of Washington. And that's intentional.
"We’ve set up these laws intentionally in this country to make it hard for people to recover on defamation claims," Chiang says, "We want people, including our public officials, to be able to speak their minds freely...without fear of being slapped with a lawsuit."
Defamation includes written or spoken statements that hurt another person's reputation and are untrue. For the average person claiming defamation, they only have to show that the person who defamed them acted with negligence. But if public figures are alleging defamation, that bar is higher. They must show the information was untrue and the person who said it did so with "actual malice." That means the person who made the statement knew it was false or said it with "reckless disregard" of whether it was true or false. (In either case, "truth is always a defense to a defamation claim," Chiang says.)
That makes the question of whether Haglund and the two officers are public figures key.
In their complaint, the lawyers representing the officers call them each a "private figure." Yet some courts have found that police, including low level officers, are public figures, Chiang says. People can also become public figures temporarily or against their will.
"They were involved in this public trial because they shot [Taylor]," Chiang says of the officers. "The case law is fairly clear that, even if you're not a police officer but you're swept up in some public controversy, you can be considered a public figure." Beyond that, the issues Sawant was commenting on in both cases—police use of force and landlord regulations—are in the public interest, which makes proving defamation more difficult, Chiang says. (Chiang was familiar with the officers' case but had not yet read Haglund's claim.)
So does the officers' case stand a chance?
"It doesn’t, frankly," Chiang says. "They are going to have a really hard time, as they should. I think public officials should have the freedom to speak their minds. You could imagine any number of people suing government officials because they didn’t agree with something those officials said or thought was wrong or felt singled them out in some way."