Is a police officer a ‘public official’? The Supreme Court could decide soon

I teach a First Amendment course every semester, and I spend roughly two weeks on defamation law. The star of the show is New York Times v. Sullivan, the landmark decision that set a high bar for public officials to win defamation claims against journalists and others.

But I may need to revise my lesson plan soon, because there’s a case now before the Supreme Court that, if the justices choose to hear it, would offer an opportunity to revisit Sullivan for the first time in decades. That’s an admittedly unlikely outcome—the court doesn’t hear most cases brought to it—but if it comes to pass, it could have significant implications for coverage of and commentary about police conduct.

The case, Armstrong v. Thompson, presents what the petitioner, Harry Armstrong, characterizes as “a recurring First Amendment question,” which the high court has not directly answered in the past: whether a law-enforcement officer, generally, is a public official under Sullivan.

The question matters because public officials must establish what’s called “actual malice” on the speaker’s part—the highest standard for a plaintiff to meet—in order to win a defamation claim. Armstrong is arguing the correct answer is no, in part because society has an interest in protecting police officers’ reputations. Meanwhile, the other side says that the “case presents no occasion to reconsider First Amendment limits on defamation claims.”

To unpack those ideas—and to evaluate the chances the Supreme Court accepts the case—let’s take a closer look at the underlying facts, the reasoning of Sullivan, and the parties’ arguments.

How the case ended up at the Supreme Court

Here is the backstory, according to the briefing in the case: Ten years ago, Harry Armstrong was a criminal investigator at the federal law-enforcement agency known as TIGTA, the Tax Inspector General for Tax Administration, which oversees IRS activities. He supervised employees and managed special agents, he carried a firearm, and he presented cases to federal prosecutors when investigations seemed to warrant charges.

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In October 2006, however, TIGTA suspended Armstrong for accessing government databases without authorization. Armstrong admitted to doing so and prosecutors declined to bring charges, but TIGTA required him to resign through a settlement in which he didn’t accept liability or fault.

In the midst of all that, Armstrong interviewed for a criminal investigator position at the USDA, which made a job offer to him. Then the USDA received several anonymous letters disclosing that TIGTA was investigating Armstrong, who was leaving TIGTA “with the threat of termination hanging over his head.” The letters also said that hiring Armstrong would be a “grave error.” The USDA rescinded its offer.

Armstrong eventually learned who wrote the letters: one of the employees he had supervised at TIGTA, an investigator named Karen Thompson, the same person who reported Armstrong for improperly accessing government databases. In turn, Armstrong sued Thompson for defamation, intentional infliction of emotional distress, false light, publication of private facts, and intentional interference with prospective contractual relations. The claims arose from the letters’ content.

Years of litigation ensued, and in the end, the DC Court of Appeals affirmed summary judgment for Thompson, with one exception: the claim for intentional interference. For that one, the court said the First Amendment applied as it would to a defamation claim, and that Armstrong had to show actual malice under Sullivan—because he was a public official and the letters focused on his official conduct. The court went on to rule for Thompson, finding that her factual statements were true (actual malice would exist only if they were false) and that her other statements were opinions (opinions lacking a provably false factual connotation are constitutionally protected).

Who counts as a ‘public official’?

Before diving into the arguments for and against Supreme Court certiorari, some brief context about the legal history is useful here. Defamation is the term for a claim involving injury to a person’s reputation caused by a false statement of fact. Sullivan, the landmark 1964 case, is significant because it established that the principles of state defamation law must comply with the First Amendment.

More specifically, the majority opinion, written by Justice William Brennan, said the court had considered the case “against the background of 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.” The court said such speech needed First Amendment protection, even if the speech was false, because it’s inevitable that people will make honest mistakes speaking out about their public officials—and if people feared they could be sued successfully for honest mistakes, the effect would be to discourage speech that we want to protect.

With that in mind, the court ruled that public officials could not win a defamation claim unless they proved that the defendant was at fault—i.e., that the defendant published the statement at issue with actual malice, which means she made the statement “with knowledge of its falsity or with reckless disregard of whether it was true or false.”

That rule created “breathing space,” according to Sullivan, for people to discuss and criticize the conduct of their public officials without worrying too much about making a statement that turns out to be false and giving rise to liability.

Notably, Sullivan led to a flurry of cases defining just what First Amendment protections apply in all manner of defamation contexts. For example, in the 1967 case Curtis Publishing v. Butts, the Supreme Court considered a defamation claim brought by football coach Wally Butts of the University of Georgia. A newspaper had reported that he conspired with Alabama’s Bear Bryant to fix a game. The coaches were well known, but neither was a public official. The court said the same principles supporting First Amendment protection in Sullivan required protection in Butts, holding that the Sullivan standard—actual malice—applied to statements about public figures as well as public officials.

However, in all of that case activity, the Supreme Court has never directly addressed whether a law-enforcement officer is a public official under Sullivan and, therefore, must establish actual malice to win.

What the court’s decision could mean

That’s the question that Armstrong, who is represented by the veteran Supreme Court litigator Roy Englert, wants the court to address. And though Armstrong’s particular job was somewhat specialized, his petition asking the high court to take his case argues that “hundreds of thousands of [officers] are affected,” and that whether they are public officials has “received extensive (though often misguided) attention in the lower courts.”

Armstrong traces in his brief what the Supreme Court has said about defining public officials: that it had “no occasion” in Sullivan “to determine how far down into the lower ranks of government employees the ‘public official’ designation would extend,” that not every government employee is a public official, and that such officials are people in “the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.”

Armstrong notes that numerous federal circuits and state courts have held that law-enforcement officers, generally, are public officials under Sullivan—regardless of their rank or role. But he argues that this approach is problematic and that the Supreme Court should use his case to find otherwise. His argument explicitly cites municipal police officers:

The garden-variety law enforcement officer directs traffic, writes parking tickets, or … drafts reports for superiors. These are noble and necessary tasks that allow our society to run smoothly, but the people who perform them are private individuals who have decided to devote their lives to the public service. Unlike politicians or judges, their “jobs seemingly imply no special prospect of life in a fishbowl.”

That view, whatever its merits, could have striking implications for journalists if the court chooses to embrace it. As Thompson points out in her response brief, Sullivan was decided when police conduct was a significant matter of public concern, and that “remains the case today.” Declaring under Sullivan that law-enforcement officers are not, generally, public officials would eliminate the “breathing space” for journalists and others to discuss and report on police conduct without worrying unduly about liability.

Moreover, Thompson argues, this isn’t even a good case to review First Amendment limits on defamation claims, because it “involves non-defamatory statements about a matter of public concern.” Remember, the appeals court ruled that Thompson’s statements were not defamatory because they were either true or protected opinions. So the Supreme Court, Thompson argues, “should not consider altering the rules governing defamation cases in a case that does not involve defamation.”

Thompson also underscores that the DC Court of Appeals, in the course of determining that Armstrong is a public official, assessed his actual job duties, rather than relying on a categorical approach. “The mere fact that a handful of other courts, employing a non-categorical standard decades ago, reached different conclusions with respect to different law enforcement officers with different duties and responsibilities is not evidence of a [lower court split on this issue],” according to Thompson’s brief.

I find her arguments persuasive—and, as a substantive matter, I have a hard time buying Armstrong’s argument that law-enforcement officers are “private individuals” in connection with their duties. Some have the power to use lethal force, and even those who don’t, or who wouldn’t routinely be in a position to use it, have the government-granted authority to affect a person’s freedom or property by enforcing public laws. Those are functions worthy of scrutiny and the “breathing space” necessary to provide it.

For those reasons, I’d say it’s a long shot for the court to accept the case. But if the court does accept it, the implications could be significant for criminal-justice reporting—so this is worth watching.

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Jonathan Peters is CJR’s press freedom correspondent. An attorney, he is an assistant professor of journalism at the University of Kansas, where he teaches and researches media law and policy, with an affiliate research position exploring big data and Internet governance in the KU Information & Telecommunication Technology Center. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.