AS PUBLIC FIGURES, when do superintendents get to impose a consequence on someone who maliciously spreads false information about them? As one superintendent in New York state discovered, it is virtually impossible to succeed on a defamation claim when the comments are related to the superintendent’s official conduct.

In 2004, a school board member posted derogatory comments on his website, referring to a superintendent as a Nazi and a child abuser and accusing the superintendent of forcing teachers to falsify grades for his daughter.

The campaign of abuse did not end when the superintendent took a job in a different school district. The former board member showed up at a board meeting in the new district to malign the superintendent. When the former board member refused to leave the meeting, he was arrested. He sued the superintendent, claiming a violation of his First Amendment rights to free speech. The superintendent’s defense asserted that the board member did not have the right to free speech because he intended to defame the superintendent.

In 2016, after years of litigation, cross claims and appeals, the New York Appellate Division found that the superintendent did not prove with “convincing clarity” that the board member acted with actual malice in making the comments about the superintendent and thus failed to prove his claim of defamation. The court relied on the 1964 U.S. Supreme Court decision in New York Times Co. v. Sullivan, where the court ruled that debate on a public issue should be “uninhibited, robust, and … may well include vehement, caustic, and sometimes unpleasantly sharp attacks on … public officials.”

Absent Protection
A superintendent in Illinois filed a lawsuit last December accusing a woman and her husband of using Facebook to post defamatory and harassing allegations against the superintendent. The critic defended her posting stating, “If you don’t like criticism, you’re in the wrong job.” The Illinois woman also claimed her constitutionally protected right to free speech allowed her to criticize the superintendent.

In Nebraska, a superintendent filed suit in federal district court in February seeking to identify the person behind fake posts on a Twitter account that falsely accused the superintendent of criminal activity and compared him to Hitler.

Most likely, the superintendents in these two states will find out that First Amendment protections will prevail over their defamation claims because public figures must prove the defamatory statements were made with actual malice. The Supreme Court in The New York Times case defines actual malice as a statement made “with knowledge that it was false or with reckless disregard of whether it was false or not.”

The court ruled that government officials should be able to withstand criticism of their official conduct, even if the statements are false. In its decision, the court said criticism increases public debate and yields a clearer perception of the truth, even if the false statements tend to diminish a public figure’s reputation. The burden is on the public figure to prove the statement was published with reckless disregard for the truth rather than on the defendant to prove the statement is true.

Public figures rarely sue for defamation because it is so difficult to meet the burden of proof. Yet one public official did so successfully. Jesse Ventura, the former governor of Minnesota, sued Chris Kyle, author of American Sniper, for publishing lies about him in 2012. Ventura proved that Kyle defamed him, and he was awarded $1.8 million, though an appeals court later vacated the settlement.

Managing Criticism
Superintendents are leaders in their community and as such they are public figures. Criticism is expected. How to handle it is a personal decision. Suing a critic for defamation is one remedy, but a lawsuit is time-consuming, and the outcome often is not favorable for public figures.

When deciding how to manage public criticism that appears defamatory, school system leaders would do well to turn to school district attorneys and professional associations for advice.


MICHELE JONES is general counsel of the Capital Region BOCES in Albany, N.Y.