|
By Barry S. Pollack and Joshua L. Solomon
In 1973, Professor Ernest Gellhorn commented in the Harvard Law Review that "little attention" had been focused on the use of adverse publicity by government agencies "and almost no effective controls ha[d] been developed to stop its abuse."
Since then, the mass media's reach has expanded significantly, along with the opportunity for government officials to impose a censure through adverse publicity.
Undoubtedly, the public has an interest in the accomplishments and defeats enjoyed or suffered by government actors. In the name of "public interest," however, officials can engage in the "abuse" of which Professor Gellhorn wrote.
Nowadays, many government agencies employ public relations professionals and maintain websites that media outlets visit for news. This information can survive a typical "news cycle." Merely by typing a name into a search engine, Internet users can uncover information disseminated even years earlier.
The longevity of information may be particularly troublesome for those not commonly in the news because new information may not supplant the damaging information. Without new "hits" to bury the old, Ask.com-type searches produce nothing but the old, damaging information.
Professor Gellhorn's explanation of the need for controls seems even more applicable in this era of routine government publicity accessible by many millions of Internet users:
"Adverse publicity … imposes a deprivation on private persons or firms without the due processes of law normally associated with government action …. [U]sually no protection other than the common sense and good will of the administrator prevents unreasonable use of coercive publicity. … [J]udicial review cannot undo the widespread effects of erroneous adverse agency publicity. The result is that the person or industry named may be irretrievably injured by inaccurate, excessive, or premature publicity."
A single official, or a few acting together, can disregard "common sense" and "good will" to destroy businesses and reputations through a press release, even when other forms of official action are unavailable because of due process requirements. Limitations on such abuse are crying out for clarification, if not creation.
Remedies, obstacles and privileges
Federal civil rights laws offer little help against adverse publicity. The U.S. Supreme Court limited the scope of 42 U.S.C. Sect. 1983, when rejecting the position that "reputation alone, apart from some more tangible interests ... is either 'liberty' or 'property' by itself sufficient to invoke the procedural protection of the Due Process Clause."
Hence, the target of a government press release cannot generally recover reputational damages in federal court, under federal law, against the responsible state officials.
As does the law in many other jurisdictions, Massachusetts law provides an absolute privilege to government agents for statements made at official proceedings, but generally only a conditional privilege for statements made to the press or public.
The Supreme Judicial Court has recognized an "absolute" privilege in few circumstances. Unlike the absolute privilege, the "conditional privilege," sometimes referred to as a "qualified privilege," does not shield government officials from liability for statements made in bad faith or with a reckless disregard for the truth.
Nevertheless, a conditional privilege may effectively provide absolute immunity for officials because victims lack access to evidence of bad faith or simply cannot afford litigation.
The U.S. Supreme Court has explained why statements by prosecutors to the press do not warrant an absolute privilege:
"Comments to the media have no functional tie to the judicial process just because they are made by a prosecutor. At [a] press conference, [a prosecutor does] not act in 'his role as advocate for the State.' The conduct of a press conference does not involve the initiation of a prosecution, the presentation of the state's case in court, or actions preparatory for these functions. Statements to the press may be an integral part of a prosecutor's job ... and they may serve a vital public function. But in these respects a prosecutor is in no different position than other executive officials who deal with the press, and ... qualified immunity is the norm for them."
Aside from litigation, defamation victims can turn to the media for help. The word of the government may, however, have an irreversible effect on public perception.
Also, victims cannot place material on government websites, where new visitors may still read only biased reports. Similarly, victims may lack the resources necessary to generate the media attention that the government can provoke.
Case study
A recent case provides insight into the potential abuse of adverse publicity.
On June 22, Attorney General Thomas F. Reilly issued a press release announcing a settlement in Reilly v. Pakachoag Acres Day Care Center, Inc., et al. The AG filed the action against clients of our firm and others, claiming breaches of contract, false statements and fraud.
At the time, the AG generated media attention based on allegations. At a subsequent deposition, a government agent recanted portions of an under-oath statement and admitted that the government had not completed accounting tasks necessary to determine the existence of liability.
She also admitted that a complete review could result in no liability for our clients, and revealed that a draft of an affidavit contained exculpatory information that had been removed before submission to the court.
Shortly thereafter, the assistant attorney general sought consent from our clients to amend the claims against them to focus on negligence rather than fraud. Our clients refused the offer, insisting that the government had engaged in malicious prosecution.
The AG's Office steered the matter into mediation and a settlement. Our clients' company paid nothing, but obtained a dismissal and releases. In their individual capacities, the clients agreed to use certain insurance proceeds, amounting to less than 5 percent of what the government sought, to obtain a dismissal and releases.
The settlement agreement required that any press release would include a statement that "there has been no admission or finding of liability by or against any of the Parties." This disclaimer had been negotiated to refer to all "Parties" because the settlement resolved not only claims by the attorney general, but also potential malicious prosecution claims against six government officials identified in the agreement.
Nevertheless, the attorney general issued a press release (posted on his website) that included several false statements, and changed the agreed-upon disclaimer language, creating the (mis)impression of success for the AG.
The press release quoted Reilly as concluding that the commonwealth would receive settlement funds because of a breach of trust.
What policies informed the AG's use of adverse publicity? The attorney general does not publish press policies on his website. Shortly after he issued the release, we sent a notice of the errors to the assistant AG on the case. The notice identified at least eight false or improper aspects of the press release.
The chief of the Government Bureau wrote back denying any mistakes. We responded with a draft complaint containing claims for defamation and intentional infliction of emotional distress against the attorney general.
The Government Bureau chief responded informally by telephone. After several conversations, the AG removed the press release from his website.
The Attorney General's Office appeared to have no established policy regarding the correction of erroneous press releases. While our clients achieved a withdrawal of the press release, one must wonder whether, in a non-election year, the AG would have surrendered (or, for that matter, whether he would have publicly declared the settlement a "success" in the first place), given the apparent lack of established policies.
Need for established protocol
What safeguards should exist to ensure that official publicity is accurate and complete? Should a public official disclose that the cost to the taxpayer of a settled action exceeded the settlement payment? Does the public have a right to know that government misconduct contributed to a settlement for nuisance value? What limitations should apply to an official who seeks publicity while running for a higher political office?
Answers to these questions may differ depending on the circumstances of particular cases. Professor Gellhorn suggested that "[t]he most significant possibilities for reform are within the agencies themselves ... ."
Drawing on developments in the area of corporate compliance programs, government agencies should be required to develop well-defined internal protocols for the use of adverse publicity before any privilege, conditional or absolute, attaches to statements to the press or public.
Then, only substantial compliance with established reasonable protocols regarding the use of publicity could trigger a government official's right to defend actions based on a privilege. Such a rule would encourage the establishment of formal written policies regarding the use of publicity by government agencies, without depriving officials of procedures by which to keep the public informed.
As a matter of common law, courts should have the power to recognize such requirements for the invocation of judicially-based privileges. In other areas of the law, "established" policies can affect exposure to liability.
For instance, courts have recognized an employer's potential defense to certain sexual harassment claims when an individual wrongdoer has violated the employer's "established" policies.
Consistent with Chapter Eight of the U.S. Sentencing Guidelines, exposure to corporate criminal liability can be reduced based on the existence of a satisfactory compliance program.
Like corporations, many public officials are creatures of statutory origin, e.g., G.L.c. 12, Sect. 3 et seq., with limited authority, and often no express authority to generate publicity. Established policies should guide these statutory creatures as they do private corporations.
Conclusion
The problems surrounding the governmental abuse of censure through adverse publicity have been well known for decades, if not centuries. Thomas Jefferson said, "I find the pain of a little censure, even when it is unfounded, is more acute than the pleasure of much praise."
Improvements in the safeguards against improper use of adverse publicity by government officials have been slow or nonexistent. As one important safeguard, courts should require that government officials demonstrate that their use of adverse publicity is based on "established" protocol before awarding them a conditional privilege.
Barry S. Pollack is a partner and Joshua L. Solomon is an associate in the Litigation Department of Sullivan & Worcester in Boston.
Lawyers Weekly, Inc., 41 West Street, Boston, Massachusetts 02111, (800) 444-5297
© 2006 Lawyers Weekly Inc., All Rights Reserved.
|
August 28, 2006
