IT’S SCURRILOUS, OFFENSIVE AND UNTRUE - BUT IS IT LIBEL?
“Sticks and stones will break my bones, but words will never harm me.” We’ve all heard that adage and condominium board members may have more reason than most to repeat it. Boards can’t please everyone all the time and there are times when they can’t seem to please anyone ever. There’s nothing new about that. Criticism is part of the board member’s job. But in the condominium world, the criticism has become increasingly harsh, offensive, nasty and sometimes even threatening – words hurled with the force of sticks and stones.
Blame social media for that. People who used to express their feelings in comments at board meetings or in letters to the board now post them on e-mail threads on Facebook and other platforms where the rules of civil discourse don’t apply, freeing them to say things they wouldn’t dream of saying in person, using language their mothers would never have approved. And their comments, once heard or read only by those attending a meeting or receiving a letter, are now shared immediately and widely throughout the social media universe.
Creative and determined dissident owners are creating “alternative” web sites dedicated to bashing the board. Some of these sites mimic the official association sites so closely that unwitting owners land on them, becoming an accidental but sometimes receptive audience for the diatribes, vulgar insults, misleading information and outright lies they find there. It is little wonder that board members want to “do something” to stop these attacks. The unfortunate reality is, there isn’t much they can do.
Protected Speech
The courts take the constitutional right to freedom of speech seriously and interpret broadly the speech and actions protected by it. One recent example: An owner expressed his dissatisfaction with a board member by threatening to commandeer a Russian tank and “drive it up your [back side] until it bursts out of your stupid, empty skull.” Offensive? Unquestionably. Threatening? Seems to be. But a court found that it was, nonetheless, protected speech because the threat was so outrageous, it should be viewed as “hyperbole” not to be taken seriously.
In another case, a board member walking with his wife was accosted by an owner who gave him the double middle finger close to his face. The court agreed that while the owner’s behavior was offensive, it was nonetheless a protected form of expression, even though the board member and his wife felt threatened by it. But the same judge found that throwing feces on the cars of board members – another way in which this dissident owner expressed himself ꟷ crossed a line, because it involved actually touching and perhaps damaging personal property.
Burden of Proof
So, the courts will draw some legal lines when dealing with freedom of speech. But as these cases illustrate, they will draw those lines infrequently, reluctantly and narrowly. As a practical matter, there are few if any legal restraints on the insults owners can hurl at board members or the accusations they can levy against them. That is why I will almost always advise boards looking to sue owners for libel (for something they have written) or slander (for something they have said) not to do so. The likelihood of prevailing in these suits ranges from slim to nonexistent, because the standards of proof are so high.
As a general rule, private individuals (who have more protections than “public figures”) must establish that statements about which they are complaining:
Were about them;
Were false;
Were made publicly;
Were made negligently – with what the law terms “a reckless disregard for the truth”; and that;
The plaintiff suffered harm as a result.
But because board members serve willingly in those positions, the courts view them not as private individuals but as “limited” public figures. As such, they must also demonstrate that the comments were made knowingly ꟷ with what the courts term “reckless disregard for the truth” ꟷ and “maliciously,” with intent to cause harm. It is almost impossible to prove that someone “knew” something, because people accused of libel or slander will insist that they were just expressing an opinion, thought something was true, or simply “misunderstood” the information they were accused of misrepresenting. Malice is even harder to establish. Absent a recording or a letter in which someone admits, “I hate this guy and I was out to get him,” the standard defense against a libel or slander claim -- “I meant no harm” -- will be very difficult to refute.
In the highly unlikely event that they can clear all these high legal bars, plaintiffs pursuing a libel or slander claim will also have to demonstrate that they have suffered tangible (financial or physical) damages related directly to what someone wrote or said. They would have to show cause and effect, for example, that the comments caused them to lose clients, lose a job or have a heart attack – not impossible, but very difficult for board members to establish.
What to Do
While it isn’t easy for boards to prevail in libel and slander claims, there are steps they can take to combat unwarranted and unprofessional attacks. Here’s the advice I give my clients.
Breathe. Before you respond, take a deep breath. Get past the initial emotional reaction and avoid a knee-jerk response to it. Consider carefully whether the statements require any response at all.
Turn the other cheek. If others in the community aren’t paying any attention to what dissidents are saying, ignoring them may be the best strategy. A public response might focus attention on the offending comments that they wouldn’t otherwise receive.
Ask why. Look beyond the terrible things critics are saying about the board and try to understand why they are so angry. The board should focus on legitimate concerns, if there are any, rather than on the offensive ways in which they are being expressed.
Respond. Misinformation, distortions and lies left unchallenged can acquire credibility they don’t deserve, possibly impeding the board’s ability to govern effectively. In these situations, a response may be essential, but it should be factual, objective and concise. It should also avoid referring to the individuals responsible for making the allegations or circulating the erroneous information. A simple statement to owners should serve: “We know you’ve heard these things, they aren’t accurate, here are the facts. If you want more information or have any questions, please contact board members directly.”
How do you know if a response is required? This is a judgment call, and I tell my clients that board members are in the best position to make it. You understand your community; you understand the community vibe; you know your neighbors and you can gauge their state of mind. The board’s response if any, should be based on this assessment.
Develop a thick skin. Respond only if a response is essential to protect the association. Don’t respond to every criticism or react to every slur. If board members seem overly sensitive or overly defensive, owners may begin to suspect that they have something to be defensive about.
Stick together. Even if board members disagree on decisions, they should unite in the face of unwarranted, unprofessional attacks against any individual trustees. The decision to respond or not should be unanimous. It is never good when some owners attack the board; it is even worse if some board members side publicly with the dissidents. This leads quickly to a situation in which no one, including the owners attacking the board, will want to serve on it.
Call the police. The courts may be reluctant to find that offensive comments or gestures are threatening, but board members shouldn’t be. In the case discussed earlier, I understand why a court viewed the threat to use a tank as a weapon against a board member as “hyperbolic” and not a real threat, but I’m not comfortable with that decision. Just because a threat seems outrageous doesn’t mean the individual won’t act on it, not by commandeering a tank, perhaps, but through some other means, using some other weapon. That is why I advise boards: If you feel threatened ꟷ if you feel concerned about your safety or well-being, if you wonder if you should call the police – you should. A visit from a law enforcement officer may encourage owners to tone down their offensive remarks, even if there is no real threat behind them. And if there is a potential threat, better to call the police before it becomes real rather than after it has caused harm.
If you have any questions regarding the libel acts and how to avoid them, please do not hesitate to contact Gary Daddario at gdaddario@meeb.com.