Officials in Deltona, Florida Seek to Use Taxpayer Money to Fund Libel Lawsuits

Reacting to online criticism of its elected officials, the city of Deltona, Florida has authorized city employees to file libel lawsuits at taxpayers' expense.  On February 16, City commissioners voted 4-3 to pass this resolution:

After discussion, the Commission voted 4 to 3 (Commissioner Denizac, Commissioner McFall-Conte, and Commissioner Zischkau voted against the motion) for the City to provide reimbursement and expenditures of legal fees to protect both proactively and reactively the City as a government including its employees and its Mayor and those members who wish to be represented in the this motion, Commissioner Treusch, Commissioner Deyette, Vice Mayor Carmolingo and Mayor Mulder where needed from material damages, slanderous or libelous comments or claims and unsubstantiated allegations past, present and future where the Mayor feels is needed and that a report of fees expended be made available to the public so they may see the extent of damage that has been caused.

Note that the resolution authorizes taxpayer funded litigation to address "slanderous or libelous comments or claims and unsubstantiated allegations past, present and future where the Mayor feels is needed." (emphasis added).  Unsubstantiated claims?!  So if I opine that the Mayor is a megalomaniac hell-bent on stifling criticism and I don't substantiate that claim, he can file a lawsuit against me and force city residents to foot the bill?  It appears so. (It appears that I was wrong about his being a megalomaniac; see my update below.)

According to the Orlando Sentinel:

The motion, which passed by a vote of 4-3 late Monday, was proposed by Mayor Dennis Mulder, who said that an organized group of residents has ventured from the usual political mudslinging and is spreading outright lies that must be stopped. Mulder threatened to resign if his motion wasn't approved.

As Eugene Volokh notes, the First Amendment doesn't bar government agencies from bringing or funding such lawsuits.  Nevertheless, he remarks that "this strike me as a bad idea, especially since the city doesn't offer to fund the defense of such libel lawsuits, even though defense of the lawsuits -- especially a successful defense -- may also serve government interests: Speech that accurately criticizes city officials serves city interests, too, by alerting the public to possible malfeasance by government officials."

Not surprisingly, some residents are considering legal action to reverse the resolution.  The Orlando Sentinel reports:

One person who has hired an attorney is Deltona resident Jeff Ensminger, who runs a community Web site called Ensminger, one of the mayor's harshest critics, said Mulder needs to channel his efforts toward improving Deltona, not filing lawsuits. "He needs to stop blaming citizens for his failure and focus on city business," Ensminger said.

Perhaps the City's money would be better spent improving its website so that City officials can better communicate with residents and correct false information and unsubstantiated allegations before they cause the irreparable harm the Mayor fears.

UPDATE: According to a statement he issued today, Mayor Mulder plans to ask the City Council to immediately repeal the measure quoted above:

However much it may emotionally pain me to hear my family and colleagues attacked, it pains me even more to think that I could have unwittingly failed to consider the constitutional implications of my actions. Accordingly, I am taking my First Amendment attorney’s opinion to heart and asking that the City Council immediately repeal the measure that we passed. In order to make this a great city, we must all begin on common ground, and that common ground is respect for the Constitution of the United States.

You don't often see public officials issue a mea culpa like this.  Most lack the humility and good sense to back down in the face of public criticism. It's worth your time to read his entire statement, which clearly took guts to issue.

One other point that is worth mentioning is that local officials typically rely on their municipal attorney, who often has little background in the First Amendment, when they make these decisions. It's rare for elected officials to ask for a second opinion from experienced First Amendment counsel.  My hat's off to Mayor Mulder for doing the right thing here.


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