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Lucy, Esq.
Lucy, Esq., Attorney
Category: Business Law
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Does the government has the same rights as a citizen? So,

Customer Question

Does the government has the same rights as a citizen? So, can the government publish anything they want and hide behind Freedom of Speech?
Submitted: 5 months ago.
Category: Business Law
Expert:  Lucy, Esq. replied 5 months ago.

Hi,

I'm Lucy, and I'd be happy to answer your questions today.

"Anything they want" is quite broad. There are exceptions to the First Amendment that prohibit citizens from saying absolutely anything without repercussion. Can you tell me a little more about your situation, the type of statement being made, and who is making it?

Customer: replied 5 months ago.

The BBB makes statements on their website(s) across the BBB network. They often make those statements based on limited information. If a company doesn't provide information to the BBB, the BBB publishes information based on 'default' numbers. So, that means if a Fortune 100 company receives 2 complaints about something and the Fortune 100 company is not a member of the BBB and chooses to not work through them in some capacity, the BBB will issue a low grade of 'F' or some other grade, damaging the company's reputation until they give in and provide information, sometimes non-public information.

The issue is that the BBB is NOT a government organization but they do regularly work with law enforcement to collect and deliver information. So, while a business being contacted by the government would go through proper legal channels to respond to any government concerns, people responding to the BBB often don't realize the BBB is going to share that information with the government and it is NOT confidential.

If the government issued a public statement based on inaccurate or incomplete information, damaging a company's reputation, my guess is the government would be sued. But, the BBB regularly does that and claims they are protected under free speech laws.

My question is difficult but really does just get down to whether the government has the rights of a citizen in that they have the same rights to free speech and issuing opinions as a person might.

Expert:  Lucy, Esq. replied 5 months ago.

Thank you.

This actually is an issue not of free speech but of sovereign immunity. Defamation of character is ALWAYS an exception to free speech laws. The BBB is allowed to share their ratings because those ratings are largely their opinion, based on facts such as a company's unwillingness to work with them. That's why they can't be sued. They're also protected because their statements are related to a matter of public concern, which raises the standard - when a false statement is about something that the public has an interest in knowing, a person or company can only be sued for defamation if there is evidence they knew the statement was false or exhibited a knowing and reckless disregard of the truth or falsity of the statement. Relying on consumer reports received typically isn't reckless. But that's a separate issue.

Under Title 28, United States Code, Section 2679(b)(1), government employees cannot be sued for "the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." The federal government also cannot be sued except where they have agreed to be. Complaints for these types of wrongs should be addressed to the appropriate agency for resolution via their administrative complaint system (which will vary depending on who has shared your information). 28 U.S.C. 1346.

Any cause of action related to false information in BBB reports would be against the person who provided that information. A local attorney could issue a subpoena seeking to compel the BBB to provide it. Another option is to respond to the BBB's inquiries and complaints to see what, if any, information they'll give you.

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Expert:  Lucy, Esq. replied 5 months ago.

Did you have any other questions about this?

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