Government Defamation May Violate Civil Rights

November 5, 2012

In theory at least, when a government agency defames an individual, the defamation may be characterized as a violation of civil rights: a deprivation of "liberty" without due process of law. The United States Supreme Court, however, has held that an ordinary state-law defamation claim against the government will usually not be sufficient to state a civil rights claim. Under the "stigma plus" or "reputation-plus" test, a plaintiff must prove some loss beyond loss of reputation, such as the loss of a job. A recent New York case demonstrates how difficult it can be to maintain such an action.

Michael Jones, Jr., was Canandaigua, New York's Planning Board Attorney in 2008. Per agreement, he billed at two rates, depending on the circumstances. The Town Board approved his billing statements until August when members of the Town Board challenged the billing. The Town Board investigated and published a report accusing Jones of ethical violations. It referred the matter to the District Attorney and took steps to get him fired, get him to resign, or prevent his contract from being renewed. He completed his contractual term but did not seek renewal, believing doing so would be futile.

Claiming the extensive press coverage hurt his legal practice, Jones sued the Town, the majority Town Board members, and the Town Board attorneys for several state law actions, including defamation. In his federal actions, he claimed the Town violated his right to substantive due process and his civil rights, denying him a property right plus.pngof continued service as Planning Board Attorney and defaming him so badly that the stigma has substantially harmed his ability to practice law.

The due process clause protects certain 'liberty' interests including, in some cases, the right to contest, at a public hearing, stigmatizing government accusations that substantially disable an individual. To avoid dismissal, Jones had to convince the court that he would be able to show (1) the government published a provably false and actually false statement that was sufficiently derogatory to injure his reputation; and (2) a material state-imposed burden or state-imposed alteration of the plaintiff's status or rights, i.e., a stigmatizing statement plus some deprivation of a tangible interest.

Jones claimed the defamatory statements cost him several types of business and dried up his municipal work and municipal positions. The court found that Jones failed to meet the "aggravating circumstances" requirement of the stigma-plus analysis and entered summary judgment in the defendants' favor.