The ACLU Responds

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Via E-mail
Board President John Anderson and Honorable Members of the School Board

Re: Resolution Regarding Censure of Board Member Mike Dunn Dear President Anderson and Honorable Members of the Board:


I am writing on behalf of Ms. Jessica Weihe to provide the board with some legal background that I believe is relevant to the censure motion. I was pleased to see included in the Rationale for the Censure Resolution that the Board “desires, through the adoption of this resolution, to communicate to the residents of this district [its] intention to respect and uphold the rights of all citizens to exercise their free speech rights during public comments even, or especially, if that speech is critical of the actions and decisions of Board members.” That admirable statement of policy is consistent with both California law and First Amendment principles.


Statements made at a local agency meeting are absolutely privileged under California law and therefore cannot constitute defamation. Cal. Civ. Code Section 47(b). The law states that a privileged publication “is one made . . . [i]n any . . . legislative proceeding." The courts have read “any legislative proceeding” very broadly to include “all that is spoken or done in the course of legislative proceedings.” Scott v. McDonnell Douglas Corporation, 37 Cal. App. 3d 277, 288 (1974). In Scott, a letter distributed at a city council meeting charged the city manager with a lack of moral and ethical character. The court found that the distribution was privileged. The court's reasoning was that the benefits of extended immunity outweigh a narrow reading of the privilege, “even though it countenances vehement, caustic and at times vigorous attacks on government officials.” Id. at 287 n.9. Importantly here, the immunity extends to “interested members of the public who wish to address themselves to matters pending before a legislative body.” Id. Cal. Gov. Code § 54952 provides the definition for “legislative body” and California courts have interpreted it to include school boards. See, e.g., Fischer v. Los Angeles Unified Sch. Dist., 70 Cal. App. 4th 87, 95 (1999) (“The school board of a school district constitutes a ‘legislative body.’” (quoting Cal. Gov. Code § 54952)); Bell v. Vista Unified Sch. Dist., 82 Cal. App. 4th 672, 682 (2000) (same). In short, the law absolutely protects Ms. Weihe’s public comments in school board meetings and Mr. Dunn’s suggestion that her speech was not protected is incorrect.


The Supreme Court has long recognized that the First Amendment embodies a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). To ensure that citizens have the breathing space necessary to ensure that robust public debate, including criticism of elected officials, no public official can prevail on a defamation claim unless he or she establishes not only that the a statement against him was false, but also that it was made with knowledge of its falsity or reckless disregard for the truth. Id. at 283-83.


To the extent Mr. Dunn’s comments suggest that Ms Weihe defamed him such that her comments at the board meeting were not protected by the First Amendment, he could not be more wrong for multiple reasons. First, for a statement to be defamatory, it must constitute a provably false statement of fact. See, e.g., Seelig v. Infinity Broadcasting Co., Inc., 97 Cal.App.4th 798, 809 (2002) (“Thus, to state a defamation claim that survives a First Amendment challenge, plaintiff must present evidence of a statement of fact that is provably false.”)(citation omitted). Most of what Ms. Weihe said during her comments to the board about “The Absolutely True Diary of a Part-time Indian” and related matters were pure statements of opinion that could not constitute defamation. The only arguably factual statement she made about Mr. Dunn was her suggestion that he had not read the whole book that he was so critical of. However, because Ms. Weihe clearly stated basis for that conclusion – Mr. Dunn had not confirmed he read the book in its entirety – her statement could not be treated as a provably false statement of fact unless it was uncontroverted that Mr. Dunn had publicly confirmed that he had read the entire book. See, e.g., Standing Committee on Discipline of the United States District Court v. Yagman, 55 F.3d 1430, 1439 (9th Cir. 1995).


Second, even if any of Ms. Weihe’s statements about Mr. Dunn or other Board members were deemed to be provably false statements of fact, they would still be protected by the First Amendment unless it were proven by clear and convincing evidence that she knew the statements were false, or that she acted in reckless disregard for whether they were false. See New York Times, 376 U.S. at 270. The probability of Mr. Dunn or any other member of the Board being able to satisfy this exceedingly high standard of proof is nil.


Finally, it is no defense as a legal matter that Mr. Dunn tried to pressure Ms. Weihe’s employer, apparently with the hope that her employer would feel pressured to try to silence Ms. Weihe’s criticism of the district and the Board. It is well-established that the government can violate the First Amendment rights of a speaker by pressuring another party who has the ability to restrict the speaker’s speech. See Bantam Books v. Sullivan, 372 U.S., 58, 67-68 (1963)Rhode Island Morality Commission violates the First Amendment rights of book publishers by pressuring book sellers not to carry publishers’ books).


Sincerely,
Peter J. Eliasberg
Chief Counsel
Manheim Family Attorney for First Amendment Rights