Social media has made it much easier to disseminate hurtful criticisms about teachers, principals, superintendents and even board of education members, and the good people of Nutmeg are no exception.
Local gadfly Ollie Obnoxious started the trouble during Public Comment at a meeting of the Nutmeg Board of Education last month. He spent his entire three minutes excoriating Tom Teacher and Mr. Principal.
“Tom Teacher is terrible,” he began. “His personality is abrasive, and the students I have talked to tell me that he is mean and lazy. I can attest to that from personal experience because my son was in his class, and Tom Teacher went the entire school year without returning a single piece of homework to his students.”
Mr. Chairperson cautioned Ollie not to be so negative, but Ollie simply went on.
“And don’t get me started about Mr. Principal. He is so stupid that it’s a wonder that he can find his way to school each day.”
Mr. Chairperson interrupted Ollie. “You are out of order! We do not allow personal attacks here. You are warned, Sir. Do not test me or you will never be permitted to speak during Public Comment again!”
“Never mind!” Ollie responded. “I am just about out of time, but don’t worry. I will be back next month to straighten you idiots out.”
“That’s it! No more Public Comment for you,” ruled Mr. Chairperson.
But that was not it. Ollie went on social media to attack Tom Teacher, Mr. Principal and, most of all, Mr. Chairperson. He repeated his claim that Tom Teacher had not returned homework all year. He didn’t spare Mr. Principal in his criticisms, but he saved his special ire for Mr. Chairperson.
“Mr. Chairperson is an embarrassment,” he started. “I don’t know how the Nutmeg Board of Education ever voted to make him Chair. But he thinks he’s God, and he tells everyone what to do. But I won’t put up with it, and neither should you. Mr. Chairman is a drunk who can’t hold a job. Please sign my Change.org petition, and with enough votes, we will be able to recall that S.O.B.”
Needless to say, Mr. Chairperson was mightily offended by Ollie’s comments. A teetotaler, Mr. Chairperson hasn’t had a drink in decades, and he has worked at the same accounting firm since graduating from college.
At the next Board meeting, Mr. Chairperson took action. He presented to the Board a motion to authorize Ms. Board Attorney to bring suit against Ollie for the defamation of Tom Teacher, Mr. Principal and himself. There was an awkward silence until Board member Mal Content spoke up. “I will second the motion, but only so that we can talk this through.”
During the ensuing discussion, it was clear that the other members had no appetite for Mr. Chairperson’s motion. “With all due respect,” Board member Red Cent asked, “Isn’t this your problem? How can we spend public money on your personal grudge?”
Does the Board have the authority to bring a claim against Ollie for defamation?
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Before answering that question, a brief review of the law of defamation is in order. There is a fundamental distinction between fact and opinion. A claim for defamation lies if the speaker (1) makes an assertion of fact, (2) that is untrue, and (3) that harms reputation. By contrast, expressions of opinion are fully protected. Therefore, whether at public comment or on social media, people are free to express their opinion, for example, that a teacher is abrasive or that a prinicipal is disorganized or a poor communicator.
Factual assertions, however, are another matter. When a person makes false statements about a person that harm reputation, he or she may be subject to a claim for defamation. Here, Ollie expressed his opinion as to Tom Teacher’s teaching style, but his claim that Tom Teacher had not returned homework all year was a factual assertion that, if false, could be an element in a defamation claim.
That said, for a claim of defamation by public officials to be successful, there is an additional hurdle that must be overcome. Out of concern for robust public debate, the United States Supreme Court ruled in the seminal case of New York Times v. Sullivan (U.S. 1964) that the First Amendment protects the right of the public to criticize public officials without exposure to liability for defamation unless a fourth prong is established — (4) the statement must be made with malice or with reckless disregard for the truth. In short, a public official can succeed with a defamation claim only by establishing that an assertion of fact was false and harmful to reputation, and also that the statement was made with malice or recklessness.
Our Connecticut Supreme Court has also weighed in on the issue of defamation in the school setting, further protecting the right of the public to make critical but false statements. In Kelly v. Bonney (Conn. 1992), the court ruled that even teachers are “public officials.” Accordingly, when a false statement is made about a teacher (or principal or superintendent) whether at a board meeting during public comment or on social media, a claim for defamation will succeed only if the claimant can establish malice or reckless disregard for the truth.
As to the question posed in Nutmeg — can a board of education expend public funds in pursuing a defamation claim on behalf of an employee or a board member — there are no judicial decisions to guide us. As a general matter, defamation claims indeed relate to an individual’s personal interest in his or her reputation, and the reluctance of the members of Nutmeg Board of Education to expend public funds to pursue Mr. Chairperson’s claim is understandable. While it is appropriate to consider such claims to be personal, however, boards of education are free to consider the following question — do persistent false statements impair the ability of a board employee (or board member) to be effective? In an extreme case, a board of education may be able to bring a defamation claim in the public’s interest to assure that board employees (or board members) can do their jobs without undue interference through maliciously false statements about them.
In addition to his misstatements of fact, Ollie used insulting terms, including “stupid,” “idiots” and “S.O.B.” During Public Comment, the First Amendment protects the right of people to speak their minds without discrimination on the basis of their viewpoint. But time, manner and place restrictions are permissible, and there is no free speech protection for personal attacks. However, such “manner” restrictions do not apply to social media, which remains for many purposes the wild west.
Finally, Mr. Chairperson overreacted in declaring that Ollie would never be able to speak at public comment again. Given that First Amendment rights are at issue, a more gradual approach would be appropriate. When members of the public abuse the privilege of speaking at public comment, it is advisable to deny the privilege for a specified period of time, and then escalate with longer denials as necessary if the misconduct continues.
