Austin Police Department Wrestles with Anonymous Critics: Remembering New York Times v. Sullivan
posted by Danielle Citron
Austin Police Chief Art Acevedo, like Howard Beale in Network, is “mad as hell and is not going to take it anymore.” Why? Anonymous online commentators have accused him and other officers of engaging in sexual impropriety and other quid pro quo behavior. According to the Austin American-Statesman, a poster masqueraded as a police commander in making some of the comments. The department suspects that some of the posters could be department employees. Acevedo asserted that because such posts erode public trust in the department and wrongly malign it, the department is considering seeking “search warrants or subpoenas from judges to learn the identities of the authors.” The Texas legislature recently criminalized impersonating another on social network sites without their permission and with the intent to harm, defraud, intimidate, or threaten.
The Police Chief’s discussion moves us into New York Times v. Sullivan territory: the right to criticize government and the conduct of public officials. Sullivan provides immunity for speech related to the business of governing for all but knowing or reckless falsehoods. It also teaches us that the freedom to criticize government is “the central meaning of the First Amendment.” Justice Brennan’s opinion explained that the idea of seditious libel is inconsistent with the First Amendment, echoing Alexander Meklejohn’s notion that the Constitution made the people their own governors. It underscored that because “erroneous statements” are “inevitable in free debate,” it must be protected if the freedom of expression is to have the “breathing space” it “needs to survive.”
Eroding the public’s trust in the police department, if deserved, is precisely what New York Times v. Sullivan would say citizen-critics of government must do to govern themselves. We can make meaningful choices about public officials only if whistle blowers and others reveal their “quid pro quo” behavior and other forms of sexual impropriety on the job. Yet, as the Sullivan Court held, deliberate falsehoods about public officials can be “used as a tool for political ends” and can interfere with the “orderly manner in which economic, social, or political change is to be effected.” Hence, for the Court, calculated falsehoods “are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Further complicating matters is the question of how much government can limit its employees’ speech, something that First Amendment scholar Helen Norton has tackled thoughtfully in this Duke Law Journal piece. Interestingly, civil libertarian groups applauded the hiring of Police Chief Art Acevedo in 2007. I wonder what the Austin ACLU thinks now.
H/T Slashdot for the story