Saturday, May 17, 2008

Can State Actors be Liable for Defamation?

In the course of the FLDS dispute, spokesmen for the Texas Authorities asserted that Louisa Bradshaw Jessop and Pamela Jeffs Jessop were pregnant minors. It appears that at the time that assertion was made, one of the two had presented a birth certificate showing her to be 22, the other had shown evidence she was 18. The state has now conceded that neither is a minor. So far as I can tell, the sole basis for claiming that they were was someone's guess at how young they looked.

That seems like a perfectly clear, open and shut case of deliberate defamation—making an injurious statement with reckless disregard of whether it was true. Does sovereign immunity protect people who make such statements if they are working for the state?

There is an interesting related factual question to which I do not yet know the answer. Shortly before releasing the claim that, out of 52 girls age 14-17, 31 were pregnant or had been mothers, the state authorities reclassified a group of 20+ women--I don't have an exact figure--as minors. I have seen no figures on how many of those were among the "mothers or pregnant" group. If all of them were, and if many are not minors, I think that would provide very strong evidence that the defamation was deliberate—that the state was choosing to lie about the age of those women in order to create bogus evidence against the FLDS.


At 8:28 AM, May 17, 2008, Blogger Mark said...

To prove defamation, wouldn't these women need to show some sort of damage resulted from the government's statement? Simply being called a minor probably didn't cause either of them any harm. If that claim was used as the basis for prosecution, that would be a different issue. But it doesn't look like it will be. I am not a lawyer, however, so I'd like to hear a legal perspective on this.

At 10:01 AM, May 17, 2008, Blogger Seth said...

I would think that keeping them imprisoned, and (even temporarily) taking their children away from them, qualifies as damage.

If you want to call me a minor, go right ahead; I'll just laugh. If your calling me one prevents me from getting on an airplane and flying wherever I have a ticket, that's damaging me.

At 1:45 PM, May 17, 2008, Blogger David Friedman said...

The damage I was thinking of was reputational--saying that a woman got pregnant when she was fifteen or sixteen is at least arguably defamation, although less so now than a few decades back.

Consulting with a colleague who actually knows the relevant law, it sounds as though one could get through the sovereign immunity if one could establish malice. I think one could make a good case that the falsehood was deliberate but am not sure if that would suffice.

Googling around, I find one case involving a defamation suit against a school principal where the court found that the principal was entitled to immunity "because the principal had made the report in good faith."

At 6:59 PM, May 17, 2008, Blogger montestruc said...


One major aspect of damage came as in both cases as I understand it the pregnant women were if adults technically not charged with any legal offense, they could leave the jurisdiction of Texas and have the kids in Arizona or Utah, and not have Texas CPS take the kid.

not to mention false imprisonment

At 2:58 PM, May 18, 2008, Anonymous Anonymous said...

Several years ago the Travis County DA charged an 11 year old with capital murder. She was finally freed on a technicality: the police interrogated her w/out a lawyer or a parent present. Her family sued but lost and the Supremes didn't hear the appeal.

On that, I have considerably diminished hopes that an FLDS suit against Texas or any of the Law officers or CPS agents will survive a court hearing, whether in federal or state courts.

Meanwhile, it looks like CPS is going to demand that the mothers abjure their religion in order to keep their kids.

There are all kinds of holes in the state's case, but since the CPS is a bureaucracy, you are guilty untill you prove your innocence.

A good blog to keep track of this and other aspects of Texas justice -- such as it is -- is Grits for Breakfast.

As far as I'm concerned, "sovereign immunity" is an idea whose time has gone.

At 5:27 PM, May 19, 2008, Anonymous Anonymous said...

Posted on Wed, May. 14, 2008

By Bill Hanna and John MoritzStar-Telegram staff writer

State officials announced Tuesday that a woman from a polygamist sect who gave birth April 29 is an adult, giving 26 other women who say they are adults hope that their claims will be heard.

At 11:31 AM, May 20, 2008, Blogger Murna Gilbert said...

David, I would agree with you that such a claim by a government official could amount to defamation. The problem, as is always the case with defamation (or if you will agree, with most tortious liabilities), is proving that the plaintiff:

1.Suffered some damages,
2(i).The said damages are the
direct consequence of the
alleged defamation, or
(ii).They are the reasonably
foreseeable consequence of the
act, and
3. That the said official acted
with malice aforethought.

The last is usually the most difficult to prove, and the usual defense is to rebut the plaintiff's claims by showing that the defendant acted in good faith -- an example would be the case of the school pricipal you cited. But the plaintiff might be successfull by countering and proving that the defendant was reckless.

At 12:43 PM, May 20, 2008, Blogger David Friedman said...

"The last is usually the most difficult to prove, and the usual defense is to rebut the plaintiff's claims by showing that the defendant acted in good faith" (re malice)

In this particular case, the (hypothetical) defendant publicly described the woman as pregnant and under eighteen after having seen the birth certificate that showed her to be 22 and without having any contradictory evidence. The description was part of a public statement used to justify the defendant's behavior. I think that meets the requirement.

At 2:12 PM, May 20, 2008, Blogger Murna Gilbert said...

re Malice:

I would say the FLDS members have a good case to make, given that no reasonable person in the position of the (hypothetical) defendant in the prevailing circumstances would have any justification to doubt the contents of the respective birth certificates without evidence to the contrary.

Yes, that meets the requirement.


Post a Comment

<< Home