Last month Gaston County’s Board of Commissioners filed a libel suit against The Gaston Gazette because of an article questioning the county’s process for settling workers’ compensation claims. Next week the commissioners will vote on setting aside $100,000 to pursue that action.
Four First Amendment experts say the suit itself is constitutionally questionable — and one says the process of filing it may have violated North Carolina's Open Meetings Law.
Elected officials get upset over news coverage every day. Occasionally some sue for libel — though there’s a very high bar public officials have to clear to win such suits.
But public bodies suing over coverage of their official business?
"It is extraordinary. I have never heard of this," said Amanda Martin, an attorney for the North Carolina Press Association.
"It’s wholly at odds with the modern understanding of the First Amendment," said Sarah Ludington, director of Duke Law School’s First Amendment Clinic.
And Brooks Fuller, director of the North Carolina Open Government Coalition at Elon University, added that, "it really strikes at the heart of the First Amendment to say that a government entity can bring a lawsuit against its citizens for criticism of that government entity."
Frayda Bluestein, a professor at the UNC School of Government who specializes in First Amendment Issues affecting local government, said that, "I don’t think a local government as an entity can be defamed."
They cite a 1964 U.S. Supreme Court ruling, New York Times v. Sullivan. In that landmark libel case, the justices made it clear that critical coverage — even when it’s wrong — is part of the democratic process. For individual public officials to prevail in a libel suit, they have to show that the offending coverage is false, damaged their reputation and was published with reckless disregard for truth.
In the Gaston case, commissioners claim the Gazette rushed an article into publication that contains inaccuracies and implies malfeasance. And it was filed not just on behalf of the seven individual commissioners, but the board as a whole.
The experts agreed the Supreme Court took that option off the table. Ludington, with the Duke First Amendment Clinic, said government officials generally understand that criticism comes with the job.
"You shouldn’t run for public office unless you understand that and are willing to put up with it, frankly," she said.
Workers' Comp And Open Meetings
The flap started with an article posted online Nov. 12 and printed on the newspaper’s front page the next day. That article questioned whether commissioners followed the state’s Open Meetings Law in four workers’ compensation settlements.
The article says those settlements were discussed in closed meetings between February and August.
Fuller, of the Open Government Coalition, said going into closed session to discuss that kind of thing is allowed under North Carolina’s Open Meetings Law.
"But what the law requires and what the story points out is that when those settlements are authorized and when they are signed on the dotted line, the details of those settlements and the parties and the terms should be made public as quickly as possible," he said.
The Gazette article says those settlements were not made public until a reporter requested closed-session minutes on Oct. 15. According to the article, commissioners responded by voting Oct. 27 to approve the minutes of those meetings. And the Gazette noted that at least one of those former employees had already been paid — $35,000 in June.
In a response to questions from WFAE, county officials didn’t dispute that timeline. But the response, which was sent by Public Information Officer Adam Gaub and reviewed by County Attorney Jonathan Sink, took issue with the Gazette’s characterization of that action. The Gazette’s online headline said commissioners had “settle(d) nearly $400,000 in claims behind closed doors,” and the article said commissioners had agreed to the settlements in closed sessions without voting.
The county says the closed-session talks authorized the attorney to pursue settlements up to a certain dollar amount, but added that “it is inaccurate to say they are informally approving an actual settlement.”
Fuller said there's room to argue over whether making minutes public with that much delay — four months after at least one person had been paid — meets the legal requirement to reveal the action in a reasonable amount of time. The law doesn’t set a limit.
"It seems to me that this story is all about a difference of opinion over what a 'reasonable' amount of time is," he said.
Demanding A Retraction
The day the Gazette posted its article, the county’s public information office sent out a three-page news release critiquing it.
The county said the article “contains numerous inaccuracies and libelously attacks the work of government civil servants and elected leaders alike.” The news release said reporter Adam Orr and editor Kevin Ellis had sent additional questions to the county but “rushed to publish an article that implies malfeasance” instead of waiting for answers. The county demanded a retraction and apology.
No apology or retraction has appeared in the Gazette. And on Nov. 19 the county sent another press release, this time announcing it had sued.
The suit names the Gaston Board of County Commissioners and each of the seven members as plaintiffs. It says the article “impeaches Plaintiffs in their trades or professions” — and asks for actual and punitive damages.
Jonathan Buchan, a Charlotte lawyer representing the Gazette, gave this statement Thursday:
"It is the Gazette’s job to shed light on how the commissioners handle their official duties, and that appears to have made these elected officials uncomfortable."
Buchan declined to discuss specifics about the article or the suit. (Buchan is a former WFAE board chair and has represented WFAE.)
An Ironic Twist?
Ludington said she doubts individual commissioners could prove libel.
"Certainly the conduct of a county commission in performing its public duties, that’s the quintessential example of a public matter," she said. "There was nothing about any commissioners’ personal lives or characters that was mentioned in that article."
When commissioners decided to sue as a board, Fuller said things took an ironic twist. Fuller said in suing over an article that challenges the board’s compliance with North Carolina’s Open Meetings Law, the board may have violated that very law.
"If they are going to discuss or deliberate anything that involves public business," he said, "they have to do so in an official meeting."
He said commissioners could hold that discussion in closed session, but there has to be a properly called meeting.
After WFAE asked three times about such a meeting, spokesman Adam Gaub said there hasn’t been one. He says the initial decision came after individual commissioners spoke with the county attorney. A vote is scheduled for next week.
Cost To Taxpayers
At WFAE’s request, Gaub also provided a financial agreement with Charlotte lawyer Jeremy Stephenson, who filed the suit. It specifies that Stephenson will be paid $225 an hour plus costs, and it’s signed by county attorney Jonathan Sink on behalf of the Board of Commissioners.
The agenda for Tuesday’s board meeting includes a motion to set aside $100,000 to retain Stephenson's firm and pursue the suit.
Fuller said taxpayers shouldn’t be involved, especially if individual commissioners stand to get a payout.
"Passing along the cost of an individual libel lawsuit to the taxpayers of Gaston County, it’s the antithesis, I think, of good government," Fuller said.
Who Would Get A Settlement?
WFAE asked whether commissioners are seeking individual compensation, but Gaub and Sink provided no elaboration on what’s in the lawsuit.
On Nov. 18, the day before the county filed the suit, all Gaston County departments got an email from Gaub, the public information officer. It told them not not to do phone or in-person interviews with The Gaston Gazette. Instead, it said they should insist on email questions and have all responses vetted by the public information office and the county attorney. When Gaub provided the memo to WFAE, he described it as a temporary practice, needed because the county is engaged in litigation with the newspaper.
WFAE tried to reach each commissioner for comment. Most didn’t respond, one hung up, and the ones who did reply said the county attorney has to field questions.
But Commissioner Chad Brown did say Wednesday that his understanding is that no decision has been made yet about the board as a whole suing.
"Our legal counsel had advised me, asked me if I wanted to be named in the lawsuit personally and I said yes," Brown said.
But Brown said he doesn’t think he’s personally eligible for a settlement.
"Whatever would come would come back to the county. I don’t think I would get anything as far as a compensation for that," Brown said.
Squelching Negative Coverage?
Even if the county’s suit fails, experts say it’s harmful to free expression. Martin, Fuller and Ludington noted that even lawsuits with little merit cost money to defend against at a time when most newspapers are financially strapped.
"If this is an official action by the commissioners and it’s being funded by the taxpayers, then I think that has very serious ramifications for chilling speech and strong-arming coverage to be positive. Or at least not negative," said Martin, the Press Association lawyer.
Ludington and Fuller said some states have passed laws to protect news outlets from this kind of legal action. They’re called anti-SLAPP laws -- SLAPP stands for “strategic lawsuits against public participation.” The Reporters Committee for Freedom of the Press says such laws "are intended to prevent people from using courts, and potential threats of a lawsuit, to intimidate people who are exercising their First Amendment rights."
The Reporters Committee said 31 states have those laws, but North Carolina isn’t one of them.
"If North Carolina had an anti-SLAPP statute it would be very easy for the Gaston Gazette to get this dismissed," Ludington said.
On Wednesday, after hearing from the experts, WFAE went back to the Gaston County attorney to ask about the basis for a libel suit by a public body.
The response came in a text message from commissioners' Chairman Tracy Philbeck. It said, in part, that “just because it’s not an everyday occurrence for elected officials to sue a newspaper for libel doesn’t mean that such legal action isn’t warranted or allowed by law.”
He texted that The Gazette should have retracted and apologized, but instead "has doubled down on the fake news."
