The Volokh Conspiracy

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Free Speech

Libel About Protected Speech

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Say you're talking privately (not to the public at large) about someone, and say something that seriously damages their reputation. It's an honest mistake on your part, and you aren't animated by hostility towards the person; but the person learns about it and sues, claiming that the allegations were false and that you didn't perform a reasonable investigation (i.e., were negligent).

In most states, including California, that could be actionable defamation, but is sometimes subject to so-called "qualified privileges." They are privileges because they provide immunity from defamation liability (don't confuse them with evidentiary privileges, which provide a right not to testify). They are qualified because they only apply so long as you made an honest and well-motivated mistake. They basically (to oversimplify slightly) raise the mental state the plaintiff needs to show from negligence as to falsehood to recklessness or knowledge.

Classic examples of qualified privileges include the "common interest" privilege, for instance when you're talking to a business partner about an employee or a prospective contracting party, or when you're talking to a fellow club member about a candidate for membership. They also include the "interest of another" privilege, for instance when someone calls you about an ex-employee of yours and asks for a candid assessment of the ex-employee's qualities. (It's true that such job references remain legally risky, precisely because the privilege is only qualified and not absolute, but the qualified privilege does decrease the risk.) California law offers this summary of the rule, providing that a qualified privilege applies

(c) [to] a communication, without malice [i.e, without knowing or reckless falsehood, and without ill will towards the subject], to a person interested therein,

  • by one who is also interested, or
  • by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or
  • who is requested by the person interested to give the information.

[i] This subdivision applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant.

[ii] This subdivision applies to and includes a complaint of sexual harassment by an employee, without malice, to an employer based upon credible evidence and communications between the employer and interested persons, without malice, regarding a complaint of sexual harassment.

[iii] This subdivision authorizes a current or former employer, or the employer's agent, to answer, without malice, whether or not the employer would rehire a current or former employee and whether the decision to not rehire is based upon the employer's determination that the former employee engaged in sexual harassment.

Now here's the interesting twist, which I just noticed a few weeks ago: The qualified immunity expressly excludes

a communication concerning the speech or activities of an applicant for employment if the speech or activities are constitutionally protected, or otherwise protected by Section 527.3 of the Code of Civil Procedure [dealing with publicity about a labor dispute] or any other provision of law.

So I think this means that

  • an employer's saying, "don't hire this person, he stole from us," is qualifiedly privileged, which is to say that the employer is immune if it made an honest even if unreasonable mistake in investigating the matter;
  • an employer's saying, "don't hire this person, he sexually harassed a coworker," is qualifiedly privileged;
  • an employer's saying, "don't hire this person, he had posted racist messages on Facebook," is not qualifiedly privileged, which is to say the employer is liable if it made an honest but unreasonable mistake in investigating the matter;
  • an employer's saying, "don't hire this person, he had a sexual relationship with a subordinate in violation of our policies," is not qualifiedly privileged (so long as Lawrence v. Texas¬†is read as providing that sexual behavior is generally constitutionally protected).

I couldn't find any cases in which this provision came up, but it is indeed there; it was added in 1994, when the reference to employment references (item [i] above) was first added. If you know about its backstory, or its applications, or similar provisions in other states, please let me know.