Who Gon' Ban Me Boo?
Simply banning people from ‘the peoples’ house’ is not the way to deal with people the government finds annoying. According to Jonh Rausch, tere are “significant First Amendment issues” raised by issuing an order to keep someone from entering a public government building. It potentially compromises the right to seek redress of grievances, the First Amendment right to receive information that a citizen would be affected by, if barred from a government building, and the First Amendment right to speak their opinion. But hey, it's her money, let her spend it to prover her case. A C&D is not legally binding. A C&D is the opinion of one attorney who is representing the person who feels harmed by you. Attorneys are sworn to tell the truth and not make false claims, but we’re not prohibited against having bad or even wrong opinions. If you remember nothing else from this post, remember this: a cease and desist letter is just one attorney’s opinion on the law. If attorneys always had accurate opinions on the law we would not have a court system. A cease and desist letter is not a guarantee of a law suit. While it’s likely the person writing the C&D will say they’ll sue you, and they might even genuinely have plans to do so, getting a C&D does not mean you will definitely be sued. This doesn’t mean you shouldn’t take the letter seriously, because you should, but you don’t need to completely flip out. Suing someone is ridiculously expensive these days and most sane people try to avoid it.
What the victim must prove to establish that defamation occurred...The law of defamation varies from state to state, but there are some generally accepted rules. If you believe you are have been "defamed," to prove it you usually have to show there's been a statement that is all of the following: published, false, injurious, and unprivileged. Let's look at each of these elements in detail.
1. First, the "statement" can be spoken, written, pictured, or even gestured. Because written statements last longer than spoken statements, most courts, juries, and insurance companies consider libel more harmful than slander.
2. "Published" means that a third party heard or saw the statement -- that is, someone other than the person who made the statement or the person the statement was about. "Published" doesn't necessarily mean that the statement was printed in a book -- it just needs to have been made public through television, radio, speeches, gossip, or even loud conversation. Of course, it could also have been written in magazines, books, newspapers, leaflets, or on picket signs.
3. A defamatory statement must be false -- otherwise it's not considered damaging. Even terribly mean or disparaging things are not defamatory if the shoe fits. Most opinions don't count as defamation because they can't be proved to be objectively false. For instance, when a reviewer says, "That was the worst book I've read all year," she's not defaming the author, because the statement can't be proven to be false.
4. The statement must be "injurious." Since the whole point of defamation law is to take care of injuries to reputation, those suing for defamation must show how their reputations were hurt by the false statement -- for example, the person lost work; was shunned by neighbors, friends, or family members; or was harassed by the press. Someone who already had a terrible reputation most likely won't collect much in a defamation suit.
5. Finally, to qualify as a defamatory statement, the offending statement must be "unprivileged." Under some circumstances, you cannot sue someone for defamation even if they make a statement that can be proved false. For example, witnesses who testify falsely in court or at a deposition can't be sued. (Although witnesses who testify to something they know is false could theoretically be prosecuted for perjury.) Lawmakers have decided that in these and other situations, which are considered "privileged," free speech is so important that the speakers should not be constrained by worries that they will be sued for defamation. Lawmakers themsleves also enjoy this privilege: They aren't liable for statements made in the legislative chamber or in official materials, even if they say or write things that would otherwise be defamatory.
The public has a right to criticize the people who govern them, so the least protection from defamation is given to public officials. When officials are accused of something that involves their behavior in office, they have to prove all of the above elements of defamation and they must also prove that the defendant acted with actual malice. People who aren't elected but who are still public figures because they are influential also have to prove that defamatory statements were made with actual malice, in most cases. In the landmark 1964 case of New York Times v. Sullivan, the U.S. Supreme Court held that certain defamatory statements were protected by the First Amendment. The case involved a newspaper article that said unflattering things about a public figure, a politician. The Court pointed to "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." The Court acknowledged that in public discussions -- especially about public figures like politicians -- mistakes can be made. If those mistakes are "honestly made," the Court said, they should be protected from defamation actions. The court made a rule that public officials could sue for statements made about their public conduct only if the statements were made with "actual malice. Once again, who gon' ban me boo? See you at the next board meeting and depending on how deep your pockets, see you in court.