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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