Accusing Someone Who Called Police of "Blatant Racial Profiling" May Be Defamation

A short excerpt from an opinion by Judge Rebecca Pennell (E.D. Wash.) Wednesday n Riera v. Central Wash. Univ.:

Mr. Riera was employed in a fixed term, non-tenure track faculty at Central Washington University (CWU)…. On the morning of April 1, [2024,] Mr. Riera called the CWU police to report an older, "apparently homeless," woman wandering around Samuelson Hall. He said he wanted to make a report "before things get … out of control." An officer reported to Samuelson Hall and confirmed the identity of the woman as a CWU professor. No further action was taken by campus police or Mr. Riera.

The CWU professor shared her experience with two colleagues. The colleagues immediately filed bias complaints with CWU, alleging the target of Mr. Riera's call—a Black woman—had been the victim of racial profiling.

This led to a great deal of institutional response, including a discussion at a faculty senate meeting. Defendant Erdman, "a lecturer at CWU and member of the faculty senate, emailed unofficial minutes" of the meeting "to non-tenured faculty," and her notes included this:

Welcome to the Deep South, Circa 1935 ☹️

Without naming names or describing the incident, [CWU President] Wohlpart expressed his outrage at a recent unconscionable incident on campus.

From my own knowledge, I think I can tell you the basics: It was an incident of blatant racial profiling. Campus police were called because a person of color was sitting quietly in the lobby of a CWU building for a brief interval. The person turned out to be a highly distinguished faculty member—but was compelled to produce and show ID before being left in peace.

(I must remark that this is outrageous on multiple levels. All CWU buildings are public; they belong to the State of Washington and its people. Anyone may sit in the lobby of any of our buildings. There was no reason at all to call the police—except, I guess, that this was a person of color.)

Wohlpart called the incident "unacceptable" and said that Central is working to see to it that such a thing doesn't happen again on our campus….

[M]ost of [Wohlpart's] statements cannot be characterized as false. The only exception is Defendant Erdman's statement that what happened on April 1 "was an incident of blatant racial profiling." A jury could conclude this statement falsely asserts that the person who called police on April 1 engaged in intentional racial profiling. And, given widely-shared public records revealed Mr. Riera as the caller, a jury could also conclude Defendant Erdman's statement was about Mr. Riera.

Defendants argue that regardless of truth or falsity, Defendant Erdman's statement cannot be considered defamatory because it falls under the common interest privilege. "The common interest privilege applies with the declarant and the recipient have a common interest in the subject matter of the communication." The privilege applies to "persons involved in the same organization, partnerships, associations, or enterprises who are communicating on matters of common interest." Examples include officers of a nonprofit association or partners to a partnership. The privilege arises "when parties need to speak freely and openly about subjects of common organizational or pecuniary interest." …

If the privilege exists, it can be lost in two circumstances (1) if the speaker is not acting in the ordinary course of their work or (2) the speaker's statement was made with actual malice; i.e., reckless disregard for the truth. Whether the privilege has been lost under either scenario is a question of fact.

Here, the parties appear to agree that members of CWU's faculty senate are members of the same organization who share a common interest. The dispute lies in whether an exception applies.

The Court concludes there are issues of fact regarding whether Defendant Erdman's statements fell outside the scope of the privilege. Going to the first exception, Defendant Erdman had no official responsibility for taking notes at faculty meetings and she was not required to share her notes with other members of the senate faculty. A jury could therefore conclude that her statements were outside the ordinary course of her work as a member of a senate. With respect to the second exception, Defendant Erdman was not a witness to the April 1 incident and no investigation had yet taken place. A jury could therefore conclude Defendant Erdman was reckless in asserting that the call to CWU police was an act of blatant racial profiling…. [T]he allegations against Defendant Erdman raise questions of fact that must be resolved by a jury.