Digital Media and Data Privacy Law Blog

The answer, of course, is a resounding no (and no, snarky readers, not because of the libel-proof plaintiff doctrine).

The surprising thing about that question, is not the answer, but rather that nearly 50 years after the United States Supreme Court's landmark defamation decision N.Y. Times Co. v. Sullivan the question still has to be asked in the context of a current lawsuit.

The lawsuit giving rise to the headline was brought by Steve Theriot, interim president of Jefferson Parish, Louisiana and by the Parish itself.  In it, the plaintiffs claim that John Does 1 through 100 -- all anonymous online commenters on the website www.nola.com -- defamed both Theriot and the parish government as a whole with comments they posted online allegedly implying that Theriot and other government officials are "unethical or deceitful."  The suit seeks money damages from the unnamed defendants.

After filing the suit, which is being paid for by the parish, Theriot backtracked and claimed only to be seeking the identity of the commenters so he could get more information from them about the charges of corruption and parish mismanagement they made online.  That stance is hard to reconcile with the lawsuit accusing those commenters of defamation.

We have written often about the ever-growing body of law regarding efforts to force web sites to disclose the identities of anonymous commenters, though anyone who has ever taken a bar review class knows that Louisiana rarely adopts the majority rule in any area of law.

Setting aside that question for now, this suit faces at least one other crippling defect, as least as it pertains to the plaintiff Jefferson Parish.  The Supreme Court in New York Times v. Sullivan could not have been more clear that the Constitution simply does not allow government bodies to bring defamation claims on its own behalf.  The Court held:

For good reason, "no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence." City of Chicago v. Tribune Co., 307 Ill. 595, 601, 139 N.E. Page 376 U. S. 292 86, 88 (1923).  The present proposition would sidestep this obstacle by transmuting criticism of government, however impersonal it may seem on its face, into personal criticism, and hence potential libel, of the officials of whom the government is composed. There is no legal alchemy by which a State may thus create the cause of action that would otherwise be denied for a publication which, as respondent himself said of the advertisement, "reflects not only on me but on the other Commissioners and the community." Raising as it does the possibility that a good faith critic of government will be penalized for his criticism, the proposition relied on by the Alabama courts strikes at the very center of the constitutionally protected area of free expression.  We hold that such a proposition may not constitutionally be utilized to establish that an otherwise impersonal attack on governmental operations was a libel of an official responsible for those operations.

This rule reflects the absolutely core function of the First Amendment -- to give the public the "breathing space" to criticize its government without fear of reprisal for even the slightest inaccuracy.

Of course, this does not even address the other problems with such a claim.  For starters, how exactly would a municipality prove actual damages?

Given the well-settled nature of the case law in this area, and the fact that Theriot is now quickly stepping back from his own lawsuit, it seems apparent that someone told him that going forward with a meritless claim on behalf of the parish was more likely to result in sanctions than in a legal victory.

UPDATE:  According to news reports, Theriot and the parish have now dropped their lawsuit.