When Seattle City Council member Kshama Sawant met demonstrators outside of City Hall in February 2016—and called the killing of 46-year-old black man Che Taylor at the hands of police a "brutal murder"—was she acting in the scope of her council position?
For council president Bruce Harrell, the answer was yes. He decided on Thursday that the city will defend Sawant against the second defamation lawsuit she faces, filed in August by the two Seattle officers who fatally shot Che Taylor last year.
"That is the cost of free speech," Harrell wrote in a Seattle Times op-ed published Thursday afternoon. "Free speech isn’t really free, and we must collectively bear that cost because it is worth the price in a democracy."
The lawsuit filed by officers Scott Miller and Michael Spaulding was unusual in that it deliberately didn't list the city or city council as a defendant and stated the plaintiffs "do not want one red cent of public money." Their attorney threatened to add the city to the suit if it chose to defend her—and it would be the second defamation lawsuit Sawant faces this year, after notorious landlord Carl Haglund sued asking for $25 million; K&L Gates has a budget of $185,000 to defend Sawant and the city in that case, according to the city attorney's office.
Police officers "do a hard job for modest pay and little thanks—realities they accept," wrote Adam Rosenberg, attorney for the SPD officers, in the complaint. "But what they do not accept, and what the law does not permit, is having their reputations ruined by an ambitious politician, doing so for personal gain."
But the decision to defend Sawant was more cut and dry for lawyers, several of whom—including mayoral candidate and former U.S. attorney Jenny Durkan—said the risk not to defend her (if she was conducting city business) could have a chilling effect on what elected officials would say in public. First Amendment attorney Michele Earl-Hubbard told PubliCola it could also affect people's decisions to run for office.
City attorney Pete Holmes in an interview last week told PubliCola he thought Harrell made the right call in the lawsuit against Haglund, that elected officials have broad First Amendment rights and duties that go beyond legislative actions. (In 2015 Holmes made a similar decision to defend then-council member Sally Clark, who was also council president at the time, when she got sued for hitting a cyclist on her way to an event. The city back then settled for $400,000.) Holmes said in the case of elected officials, their jobs are 24/7.
Harrell echoed those reasons in his memo dated Friday: "An important part of our work is engaging with and responding to our constituents." And in Sawant's case, her rhetoric and engagement with the public—while controversial and pointed to as "inflammatory" at times—are also the reasons activist groups find her to be a voice for people underrepresented in government. Especially when it comes to the topic of racial profiling.
Sawant has stood by the side of Andre Taylor, Che Taylor's brother, among several protests including recent demonstrations in the name of Charleena Lyles.
"The moment we stop allowing people to have a freedom of their opinion is the moment we stop being America," Andre Taylor told PubliCola, and added that Sawant is a person of color herself who would be more understanding of those concerns. "People in political positions should be speaking out on this law that is an outlier. ... We need strong people like Sawant to speak out aggressively on what she sees."
Defamation lawsuits are notoriously difficult to win. Earl-Hubbard told PubliCola the fact that the officers' lawsuit touches on a national conversation about police reform will make it especially difficult. Political speech is also "entitled to more breathing room," Earl-Hubbard says.
"I think it would be naïve to think that the public right now is not heavily focused on the use of force and racial profiling," Earl-Hubbard said. "This is a subject people are going to talk about, and I would think the court would understand the importance of allowing people to talk about that particular subject...as opposed to anything that would punish a public official for expressing an opinion about a particular event."