LEGAL OPINION-- Councilwoman Fisher's legal threat: does she have a viable claim for defamation against Patricia Waiters?

Those who live-streamed the Council meeting last night witnessed longtime Hoboken activist Patricia Waiters, unload on 2nd Ward Councilwoman Tiffanie Fisher.  It was rough. 

But, the Councilwoman is not alone. Over the years selected council members, mayors, politicos, and bloggers- including your's truly (me!)-- have (at times) been on the receiving end of Patty's invective. The same goes for past/current Hoboken Board of Education Trustees and Hoboken's District Superintendent Christine Johnson who are excoriated fairly regularly with sometimes inflammatory rhetoric of the  kind Fisher got last night.   

It is not comfortable to watch. Below is a clip of the whole exchange: Waiters, followed by Councilwoman Fisher, responding to her.

What made this exchange different than others I've heard was how the Councilwoman reacted to the vitriol: she made a veiled threat of legal action, that Waiters comments came "close to defamation"-- and cautioned her to "think" carefully before ever repeating those opinions again.  

Wow.  Having played a lawyer for 17 months, a pro se in a junk defamation SLAPP suit, the legal question interests me: is it 'okay' for a sitting councilperson to threaten litigation against a member of the public for blasting him/her with inflammatory opinion?  

I don't know!  I am not a lawyer. So, I consulted one; a very experienced longtime practitioner of defamation law in New Jersey.  I asked him for a legal opinion on whether or not a sitting Councilwoman had a viable claim for defamation under the circumstances that occurred at last night's City Council meeting. He was kind enough to write this which I will share:

LEGAL OPINION 

You have asked me if a viable claim for defamation could be made against a member of the public who appeared at a recent city council meeting and,  in the public forum part of the meeting, expressed their opinion that a certain council member is racist and has hatred in their heart against black people. 

The simple answer is no.  There is no viable claim of defamation/libel/slander or any other theory.  

First, the statements were made in public directly to the council member, live streamed to the public.  There is no basis for a claim when the alleged defamatory statements are made directly to a person and that person has the opportunity to refute or defend against those statement. 

Second, the council member is a public figure. Even if there was any basis for a claim against the member of the public, the bar for proving defamation and reputational harm is very high; i.e. the public figure would have to prove “actual malice”, which is a legal construct  and which would require the public figure to prove that the member of the public made the statements knowing full well that the statements were false, would injure and damage the reputation of the public figure and, furthermore, the statements were meant to harm the reputation of the public figure.  While I don’t condone vitriolic attacks against public figures, the First  Amendment, which is a cornerstone of our democracy,  is very protective of political free speech; the NJ Constitution has an even higher degree of protection for free speech in a public forum. Issues of character, fitness for the position, truthfulness (however proactive and unsettling) have long been held to be  protected areas of comment with regard to public figures. In essence, short of making a knowingly false statement that a public figure committed a heinous crime, a public figure has no legal recourse. 

Finally, the statements about someone being a racist are opinion.  That issue has long been settled. 

Threatening a member of the public with an unsupportable lawsuit made by a public official would be categorized as a SLAPP lawsuit (Strategic Lawsuit Against Public Participation).  Such suits can result in an award of attorney’s fees to the member of the public (who may themselves be deemed to be a public figure) who had to defend against said suit.  

I am not aware of the identity of the individuals who form the basis for your inquiry. However, in my opinion, the statements made by the public figure are uniformed, ill-advised and have the potential to backfire in a spectacular fashion, even probably exposing the City to a claim for damages as the public figure was acting in their capacity as a council member.  You should be aware that if the SLAPP lawsuit was determined to be baseless, the filing and persecution of such would be deemed to be a conscious tort.  Generally, insurance carriers, while they may have to provide a defense  to the public figure, would be under no obligation to cover any fee or other damage award against the public figure for filing the SLAPP.  

I hope that the forgoing has been responsive to your request.