Like many, I have criticized Speaker Nancy Pelosi for calling federal officers in places like Portland “stormtroopers.”  It is highly offensive on a myriad of different levels and serves to fuel attacks on federal officers who have suffered significant levels of injuries in the rioting.  However, the recent statement from Ken Cuccinelli, acting deputy secretary of Homeland Security, on the possibility of libel lawsuits is unsustainable under current tort law.

While I am thankful to Cuccinelli for bringing torts in this conversation (a subject I have taught for over 30 years), I am afraid that his suggestion is not well based in tort doctrine.  Cuccinelli told Lisa Boothe on Fox News’ “The Ingraham Angle” that

“When you see such libelous, slanderous comments from people who know better — Let’s not kid ourselves, the speaker of the House knows that she is using Nazi allusions to refer to correct, professional law enforcement officers. If I was a CBP agent or ICE agent, or FBI agent — and if I was an FPS agent — I might sue for libel.”

I would argue against that particular impulse.

Calling police officers names is a protected exercise of free speech under the First Amendment. It is opinion on representatives of your government. A lawsuit would tossed out on that basis.

Moreover, the suggestion raises the issue of “group libel.” It would be based on officers arguing that, while not named individually, they were libeled due to their association with a group.  Such lawsuits are very difficult to maintain.  In Neiman-Marcus v. Lait (1952), a New York federal district court addressed a defamation claim arising from the publication of the book “U.S.A. Confidential.” The author wrote that “some” models and “all” saleswomen at the Neiman-Marcus department store in Dallas were “call girls.” It also claimed that “most” of the salesmen in the men’s store were “faggots.” The store had nine models, 382 saleswomen and 25 salesmen. The court found the size of the group of women was too big to satisfy a group libel standard. However, the size of the group of salesmen was viewed as sufficiently small to go to trial.

In this case, Pelosi and others are labeling all members as stormtroopers which helps in a group libel claim. However, this is a very large group and only magnifies the concerns over defamation curtailing political speech. The Supreme Court laid out the constitutional basis for libel laws roughly 50 years ago in New York Times v. Sullivan. Justice William Brennan explained how the First Amendment was meant to give the free press “breathing space” to play its critical role in our democratic society.  The same is true of critics of the government, even elected officials criticizing other government officers.

I understand Cuccinelli’s anger at this scurrilous insult.  However, it will have to be addressed in the same place it was expressed: the court of public opinion.