This article appears in the April 2020 issue of our monthly newsletter, Public Safety Labor News.
In the summer of 2016, a team of attorneys in Philadelphia learned that numerous local police officers had posted content on Facebook that appeared to endorse violence, racism and bigotry. In some of these posts, officers commented that apprehended suspects – often black men – “should be dead” or “should have more lumps on his head.” In other Facebook conversations, officers advocated shooting looters on sight and using cars to run over protestors. Numerous posts deemed Islam “a cult, not a religion” and referred to Muslims as “savages” and “goat-humpers.” And in others, officers appeared to joke about beating and raping women.
This discovery inspired the creation of the Plain View Project (PVP), a research project that has identified thousands of Facebook posts and comments by current and former police officers. The PVP published these posts and comments, including one by D.F. Pace, an attorney and inspector within the Philadelphia Police Department, on the PVP website.
Pace sued Injustice Watch, an investigative journalism non-profit which runs the PVP, and attorney Emily Baker-White, its former employee, for defamation-by-implication and for putting him in a false light.
The PVP included Pace’s Facebook comment to a post from Philadelphia police officer Anthony Pfettscher. Pfettscher wrote of the arrest of American Otto Warmbier in North Korea, “I’m cracking up at that America college student that went to North Korea and tried to steal a poster. He is crying and pleading like a little baby girl because he was just sentenced to 15 years hard labor. Although my heart breaks for his family, it’s an eye opener to how spoiled and coddled our youth of today are here in this weak PC country. Yet they act like animals and burn and step on our Flag that so many of our children died for defending our rights and our country. #SeeYouIn15Years #WakeUpAmerica #AskWhatYouCanDoForYOURcountry.” The PVP website includes six comments to the post, including Pace’s, which read, “Insightful point.”
Pace argued that the inclusion of his comment on the PVP website defamed him and put him in a false light. Pace contended that the website as a whole suggests he belongs “in a set of current and former police officers who endorse violence, racism and bigotry and act in manners consistent with these biases in their official capacity”; that he endorses violence, racism and bigotry; that he acts in a manner that undermines public trust in the police; that he is not carrying out his oath of office with integrity; and that he does not treat people equally.
A federal court dismissed Pace’s lawsuit. The Court found that as a public official, Pace bore the burden of establishing that in publishing the statement the PVP acted with ‘actual malice,’ with the knowledge that it was false, or with reckless disregard of whether it was false or not. The Court concluded that Pace could not meet this burden because of the disclaimer on the PVP website. The disclaimer reads that the posts in the database “could be relevant to important public issues and are open to various interpretations. We do not know what a poster meant when he or she typed them. The posts and comments included in the database comprise portions of a user’s public Facebook activity, and are therefore not intended to present a complete representation of each person’s Facebook presence, or each person’s views on any given subject. Inclusion of a particular post or comment in this database is not intended to suggest that the particular poster or commenter shares any particular belief or viewpoint with any other posts or commenters in the database.”
The Court held that “cases in which challenged statements feature equivocal or cautionary language are routinely dismissed because the statements are non-actionable opinion. As the language of the disclaimer shows, the PVP was merely outlining possibilities. The disclaimer is replete with ‘hedging language’ such as ‘could,’ ‘we do not know,’ ‘we believe,’ etc. indicating that the PVP is suggesting possibilities, not expressing certainties. The statements of which Pace complains fall into that bucket and are accordingly non-actionable opinion.
“In sum, the implications that Pace belongs to a set of current and former police officers who endorse violence, racism, and bigotry and act in manners consistent with these biases in their official capacity; that Pace endorses violence, racism, and bigotry; that Pace is not carrying out his oath of office with integrity; that Pace acts in a manner that undermines trust in police; and that he does not treat people equally are not capable of defamatory meaning. They are statements of opinion by Defendants that readers could view Pace in that way – leaving open the possibility that they also could not.”
Pace v. Baker-White, 2020 WL 134316 (E.D. Pa. 2020).
Also in the April 2020 issue:
- Management’s Petition Violates Fire Union’s Rights
- Requiring Pregnant Officer To Use Up Leave Violates Discrimination Law
- No ‘Error Too Obvious To Be Unintentional’ On The Money Train
- Promise Of No Discipline? No Weingarten Rights
- Video Shows Assault, Not Rough Sexual Foreplay
- Union Lawyer Not Liable To Member For Malpractice Claim
- Firefighter Who Smoked For 30 Years Wins Lung Cancer Claim
- Only Union, Not Terminated Police Commissioner, Can Compel Arbitration
- Municipal Convictions Disqualify Applicant From Police Job
- DROP Reform Does Not Violate Constitution
- Q & A