I’ve been posting Monday Morning Hearsay for several years now, and finally I have the opportunity to write on the subject I previously only alluded to with my catchy title: football.

A recently reported decision of the Maryland Court of Special Appeals comes to us from the world of youth football and it describes a problem most league parents will confront at one time or another: the grown-up who takes the game just a little too seriously. In this case, a coach allegedly cursed at another volunteer in front of children and, probably to the coach’s eternal regret, a parent who also served on the league’s board of directors. The board suspended the coach, and the coach, determined to set an example of sportsmanship, then sued the league for defamation.

Here we leave behind the world of passes for the world of privileges. To win a defamation case, it’s not enough to prove that someone has made a false statement about you. A plaintiff also has to prove publication, meaning that a statement was not only made but was communicated to one or more people other than the plaintiff himself. But under the law there have always been certain privileges, or protected communications. There is a legislative privilege, for example, that protects statements made during the legislative process. There is the attorney-client privilege that protects communications between a lawyer and her client. There is the privilege against self-incrimination guaranteed by the Fifth Amendment.

A person sued for defamation may assert the common interest privilege. If you’re not a lawyer you won’t have heard of it, but if you’ve ever been one of several parties to litigation you’ve probably had the benefit of it whether you know it or not. The attorney-client privilege does not extend to communications between a lawyer and someone she doesn’t represent, even if that person is on the same side as the lawyer’s client. So if you and another poor soul have been sued and you retain different lawyers, and the four of you talk about best how to defend the case, your opponent could force you to reveal your secret strategies if the attorney-client privilege was the only available privilege. Luckily, it’s not. The common interest or joint defense privilege evolved to ensure that when people who share a common interest share information amongst themselves, we don’t consider the information published. In order to be published, the information must be shared with a third party outside of the shared interest group. And since publication is necessary to prove defamation, the common interest privilege also defeats claims based upon false statements.

This issue comes up more often than you might expect and pretty frequently in the employment context. In smaller companies, hiring and firing decisions are often made by the board of directors or at least shared with them. In larger companies, the board participates in hiring and firing only for very senior personnel, but in such cases the monetary stakes are concomitantly much higher. Municipalities and non-profits make all sorts of decisions through boards or councils. Hospitals conduct peer reviews of challenged professional conduct. Teachers, administrators and parents meet and share information during IEP or student disciplinary meetings. In all of these contexts the potential for provocative statements in an emotionally-charged environment is high. And for defamation purposes, so long as a false statement is innocently made within such a group, it will not support a defamation claim.

There is an exception in cases of malice. In a defamation case the common interest privilege can be defeated by proving that the statement was made with actual knowledge of its falsity. If the speaker has no reason to know that a fact alleged is not true, even if he could have discovered that it is false with a little investigation, he will be still be protected from a defamation suit.

Another exception applies if a statement is made for purposes other than the group’s common interest. So, for example, if a board member is participating in a meeting to decide whether to fire the company’s CEO and he suddenly starts telling the board about his neighbor who’s probably having an affair with a politician, the common interest privilege does not apply. To be protected, a statement has to be related to the purpose for which the group has convened.

That concludes today’s lesson on the common interest privilege, friends, but it wouldn’t be Monday Morning Hearsay without a quote. This comes from Shirley v. Heckman, our appellate decision on the common interest, and brings us back to football with a little international rivalry:

Bill Shankly said it most succinctly: ‘Some people think football is a matter of life and death . . . . I can assure them that it is much more serious than that.’

Followed by this footnote:

Mr. Shankly, the manager of the Liverpool Football Club in England, spoke of course of the brand of ‘football’ that Americans call soccer. But his sentiment originated here in America and with our brand of football: wittingly or not, Mr. Shankly paraphrased UCLA football coach Henry Russell “Red” Sanders, who declared on the eve of a showdown with USC for a Rose Bowl bid that ‘this game is not merely a matter of life or death . . . It’s more important than that.”

(Internal citations and alterations omitted)

P.S. Go Ravens!

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Allow me to confess: I post snarky reviews on Yelp.  All the time.  Well, maybe not all the time.  A couple of times.  I try to keep things reasonable.  But if I have a really bad experience at your place of business, expect me to say something about it and to make it funny.  In a not-good-for-your-online-reputation way.  (People who follow me on Twitter seem to think I’m funny, so people are paying attention, I guess.)

I am not the only person doing this, you may have noticed.  There are whole online ecosystems these days.  Gawker, Above the Law, the new Dish.  Right-wing pages I avoid like the plague but nevertheless must grudgingly admit exist.  I’m not much for Reddit but if there’s anything you wish to discuss you’ll find it there.

Violentacrez and similar trolls aside, though, most people post or comment about something because they have an opinion and they want to share it.  The First Amendment is supposed to protect that sort of speech and generally it does.

What folks don’t always understand, though, is that the First Amendment can’t stop someone from suing you.

This seems counter-intuitive.  People assume that if a lawsuit ultimately will not have merit – meaning it’s a loser – that it won’t get filed.  Unfortunately that’s not true.

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Businesses targeted for negative reviews on sites like Yelp are more and more frequently filing SLAPP suits against posters.  They do this because they know that the costs of defending a lawsuit are prohibitive.  Retaining a lawyer to defend you against a defamation suit is expensive.  In the United States, parties to litigation pay their own attorneys; so even if you ultimately win, you could end up bankrupting yourself.  The businesses filing these suits want you to be afraid of this so that you’ll end up not commenting at all.

Witness the Casey Movers saga.  Basically, a woman complained about a moving company on Yelp.  In what has to be one of the most spectacularly tone-deaf, idiotic responses to a customer complaint of all time, Matthew Overstreet, sales manager extraordinaire, sent her a letter peppered with poorly-used legalese, the gist of which was a threat to sue her if she didn’t remove the comment.  And not just to sue her, but to make her travel to a distant court to defend the case.

Turns out, of course, that the original poster had a husband who was 1) intelligent; 2) a blogger; and 3) not easily intimidated.  He took to the web with the story, and the big guns at Popehat not only took notice, but offered to locate an attorney to defend the poster, pro bono, if any suit was filed.

The law on these issues – SLAPP suits, defamation, First Amendment defenses in commercial contexts – is evolving on an almost daily basis.  Many of the published decisions, however, deal with complex First Amendment issues like prior restraint, not the nuts-and-bolts of liability and damages.  Which in practical terms means we as lawyers don’t always know how particular courts will deal with these cases.  So there certainly is risk in posting negative reviews online.

It’s easy enough for me to say I’ll continue posting, because I’m probably not going to get sued.  It’s not like “Joe’s Auto Shop” is hiring the best, most experienced counsel to prosecute its lawsuits, so the ambulance chaser it likely does hire is probably going to decide that suing me would be more trouble than it would be worth.  That calculus isn’t necessarily true of you, though.

One response is to blog, like the Casey Movers guy.  Sunlight is the most effective disinfectant, meaning that bringing these kinds of threats, and the suits themselves, before the public can make them go away.  It’s the Streisand effect at its best.

Another, and I hope this will come to pass, is for lawyers to step up to defend these cases pro bono.  Businesses file these cases because they’re counting on them being expensive to defend, not because they really expect to win.  If they’re not going to be expensive to the defendant (but potentially will be for the businesses, who do have to pay their lawyers), they won’t get filed.

But probably my best piece of advice to you is to keep your reviews as factual and true as possible.  Provide concrete examples of what you’re trying to communicate.  Don’t say “the food was crappy;” say, “the omelet was overcooked.”  The line between justifiable statement and slander gets murkier when you’re dealing with statements of opinion.  That doesn’t mean you’re not entitled to your opinion, but it does mean that it’s a lot harder to argue about simple factual statements.  Just my two cents, for whatever it’s worth.

There are statutes in some states designed to curb SLAPP suit abuses.  Maryland has an anti-SLAPP statute, but like many others it’s weak.  A bill that would have reformed the statute to make it more effective at shutting down meritless cases failed to pass the Maryland Senate last year but will likely be reintroduced during this session.

Ablene Cooper, a sixty year old African American woman in Jackson, Mississipi, has filed suit against Kathryn Stockett, author of the bestseller, The Help.   I haven’t read it.  Admittedly there are certain books that feel too Oprah Book Club-y to me and “The Help” has all the hallmarks of being that kind of book.  This may mean that I am a Franzen-style snob.  Don’t care.

But let me say this.  I have started three or four novels since my twenties and every single one of them suffers from the same flaw: I can’t get myself out of the story.  Or, if not me, then someone interesting I know and wish to write about.  I get maybe five chapters in and can’t keep going.  The whole thing falls apart because I’m trying too hard, consciously or not, to model a fictional person after a real person or to tell a real story in a fictional guise. 

I suspect this is the novelist’s greatest sin, save cliches and stories that turn out to be dream sequences.  It’s true that real life informs our writing.  Look at Hemingway.  He lived and fought in Spain and wrote The Sun Also Rises and For Whom the Bell Tolls.  But he knew how to separate himself, and his life, from the story.  The same goes for Salman Rushdie, Pat Conroy, Gore Vidal, and any number of former lawyers who churn out legal thrillers like billable hours.  They start with the basis, then move on.

Then there is the thinly veiled autobiographical/biographical novel, like Peyton Place or Citizen Kane.  Part of the appeal of books like this, though, is the frisson of excitement that comes from peeking into someone else’s (real) life.  The stories succeed exactly because the characters are recognizable.  But this comes with a price.

Authors need to understand that the publisher’s disclaimer on the frontispiece of the book – “This is a work of fiction, any resemblance to persons or places, blah, blah, blah “- is not a perfect hedge against recrimination.  Nor is Michael Crichton’s small penis rule.  The legal actions available to claimants vary from state to state and nation to nation, but typically they take the form of libel/defamation, invasion of privacy, “false light” and so on.  Most of these torts are intentional, meaning that – again, depending on the relevant law – punitive damages may be available.  Punitive damages may or may not be covered under your or your publisher’s insurance policy, so your personal assets may be on the line to satisfy a judgment, if there is one.  And in the United Kingdom, where libel suits are really bad news, you may also have to pay the claimant’s attorney’s fees. 

I think that when people write a fictional character that very closely resembles a real one, it’s because they want to stick the knife in and twist it.  So if you feel yourself doing that, stop.  Fold.  Re-deal.  Let’s say, hypothetically, that I know someone named Hal.  And I write a book, and include a character named “Hal,” a fat, socialist derelict on welfare who smokes pot, wears a dirty Che t-shirt and listens to Bob Marley.  So long as Hal doesn’t closely resemble that character in real life, the use of his name should not trigger liability.  And I still get to enjoy my delicious secret, no less wonderful for not being actionable. 

Call.