Liberman sued Gelstein for slander after Gelstein: (1) told a fellow tenants’ board of governors member that Liberman may be bribing police officers not to ticket cars parked outside of the building and (2) told employees that Liberman had threw a punch at him and threatened his wife and kids.
A conditional privilege protects defamatory statements that are made between two persons who share a common interest.
Liberman sued Gelstein for slander.
The first cause of action was based on an exchange that Gelstein had with a fellow member of the tenants’ board of governors, in which Gelstein accused Liberman of bribing a police officer to refrain from ticketing cars parked around Liberman’s building.
The second cause of action was based on the allegation that Gelstein told employees of the building that Liberman threw a punch at him and threatened his wife and daughter.
Gelstein argued that the first cause of action could be resolved under the “common interest” qualified privilege to uncover Liberman’s wrongdoing because Gelstein had witnesses multiple cars parked around the buildings past the legal limit that were never ticketed and Gelstein also was told that Liberman was bribing police officers by two building employees.
As for the second cause of action, Gelstein argued that the statements were either true (and therefore not defamatory) or never made.
1. Was the lower court correct to conclude that Gelstein’s conversation with Kohler (another member of the tenants’ board of governors) was conditionally privileged?
An absolute privilege protects statements when public policy requires a speaker be immune from suit, whereas only a conditional privilege protects statements that foster a lesser public interest. The rationale for the”common interest” conditional privilege is to protect the flow of information between persons sharing a common interest.
Here, Gelstein’s conversation with Kohler was conditionally privileged because they were members of the tenants’ board of governors, which was formed to protect the interests of tenants. If Liberman had in fact bribed the police, the communication of that information from Gelstein to Kohler would have been critical to uphold their responsibilities as members of the tenants’ board of governors.
2. Was the lower court correct to conclude that Liberman failed to raise an issue of fact on malice?
A plaintiff may rebut a defendant’s claim of a qualified privilege by showing that the defendant spoke with malice. Under common law, malice means spite or ill will. However, in New York Times Co. v. Sullivan, the Supreme Court established an “actual malice” standard for cases governed by the First Amendment: knowledge that the statement was false or reckless disregard of whether the statement was false or not, with sufficient evidence to conclude that the defendant in fact entertained serious doubts as to the truth of the statement. Thus, malice now has a dual meaning.
Here, there is no triable issue under the Times standard because Gelstein admitted that he was unsure whether the bribery charge was true (and therefore not highly aware, as the standard would require, that the statement was false). Likewise, there is no triable issue under the common law standard. While a jury could find ill will between Gelstein and Liberman, Liberman did not meet the burden of proving that malice was the one and only cause for Gelstein’s statement where Gelstein made the statement in private to a colleague who was in a position to investigate the allegation.