qualified privilege in Rhode Island

2009A qualified privilege can exist "if the publisher makes the statements in good faith and `reasonably believes that he has a legal, moral or social duty to speak out, or that to speak out is necessary to protect either his own interests, or those of third person[s], or certain interests of the public.'" Id. (quoting Ponticelli v. Mine Safety Appliance Co. , 104 R.I. 549 , 551 , 247 A.2d 303 , 305-306 (1968)).

2007In Swanson v. Speidel Corp., 110 R.I. 335, 340 , 293 A.2d 307, 310 (1972), a case factually similar to the matter now before us, we held that a former employer’s communication to a prospective employer with regard to the work characteristics of a former employee was protected by a qualified privilege.

2011Mills provides a qualified privilege in defamation cases "if the publisher makes the statements in good faith and `reasonably believes that he has a legal, moral or social duty to speak out, or that to speak out is necessary to protect either his own interests, or those of third person[s], or certain interests of the public.'" 837 A.2d at 720 (quoting Ponticelli v. Mine Safety Appliance Co. , 104 R.I. 549 , 551 , 247 A.2d 303 , 305-06 (1968)).

2011Mills provides a qualified privilege in defamation cases "if the publisher makes the statements in good faith and `reasonably believes that he has a legal, moral or social duty to speak out, or that to speak out is necessary to protect either his own interests, or those of third person[s], or certain interests of the public.'" 837 A.2d at 720 (quoting Ponticelli v. Mine Safety Appliance Co. , 104 R.I. 549 , 551 , 247 A.2d 303 , 305-06 (1968)).

2010Co. , *Page 11 525 A.2d 489 , 492 (R.I. 1987)).

2007The qualified privilege can be overcome, however, when the plaintiff proves “that the person making the defamatory statements acted with ill will or malice.” Mills, 837 A.2d at 720 (citing Di Biasio v. Brown & Sharpe Manufacturing Co., 525 A.2d 489, 492 (R.I.1987)).

2013See United States v. Bisanti, 414 F.3d 168, 170-71 (1st Cir.2005) (“ ‘On an appeal respecting a privilege claim, the standard of review depends on the issue.’ * * * Factual determinations are reviewed for clear error, legal determinations are reviewed de novo, and evidentiary determinations are reviewed for abuse of discretion.” (quoting Cavallaro v. United States, 284 F.3d 236, 245 (1st Cir.2002))); see, e.g., Fireman’s Fund Insurance Co. v. McAlpine, 120 R.I. 744, 754 , 391 A.2d 84 , 90 (1978) (after finding that a statement was entitled to the qualified privilege of Rule 26(b)(2) of the Sup

2013See United States v. Bisanti, 414 F.3d 168, 170-71 (1st Cir.2005) (“ ‘On an appeal respecting a privilege claim, the standard of review depends on the issue.’ * * * Factual determinations are reviewed for clear error, legal determinations are reviewed de novo, and evidentiary determinations are reviewed for abuse of discretion.” (quoting Cavallaro v. United States, 284 F.3d 236, 245 (1st Cir.2002))); see, e.g., Fireman’s Fund Insurance Co. v. McAlpine, 120 R.I. 744, 754 , 391 A.2d 84 , 90 (1978) (after finding that a statement was entitled to the qualified privilege of Rule 26(b)(2) of the Sup

2023The United States Supreme Court has stated that “government officials performing discretionary functions generally are granted a qualified immunity and are ‘shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Wilson v. Layne, 526 U.S. 603, 609 (1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

2006In Wilson v. Layne, 526 U.S. 603 , 119 S.Ct. 1692 , 143 L.Ed.2d 818 (1999), the United States Supreme Court stated that “government officials performing discretionary functions generally are granted a qualified immunity and are ‘shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Id. at 609 , 119 S.Ct. 1692 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982)).

2023In a qualified-immunity analysis, “the first step in evaluating a claim * * * is to ‘determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all.’” Monahan v. Girouard, 911 A.2d 666, 674 (R.I. 2006) (deletion omitted) (quoting Wilson, 526 U.S. at 609 ).

2014Ill Analysis Although petitioners argue that the doctrine of qualified immunity protects them from liability, we have stated that “[g]overnment officials need not avail themselves of the protections of qualified immunity when no constitutional violation is present.” Monahan v. Girouard, 911 A.2d 666, 673-74 (R.I.2006).

1985See Pennsylvania General Insurance Co. v. Becton, — R.I. —, —, 475 A.2d 1032, 1036 (1984); Fireman’s Fund Insurance Co. v. McAlpine, 120 R.I. 744, 747 , 391 A.2d 84 , 87 (1978); Town of North Kingstown v. Ashley, 118 R.I. 505, 510 , 374 A.2d 1033, 1036 (1977).

1985See Pennsylvania General Insurance Co. v. Becton, ___ R.I. ___, ___, 475 A.2d 1032, 1036 (1984); Fireman's Fund Insurance Co. v. McAlpine, 120 R.I. 744, 747 , 391 A.2d 84 , 87 (1978); Town of North Kingstown v. Ashley, 118 R.I. 505, 510 , 374 A.2d 1033, 1036 (1977).

1985See Pennsylvania General Insurance Co. v. Becton, — R.I. —, —, 475 A.2d 1032, 1036 (1984); Fireman’s Fund Insurance Co. v. McAlpine, 120 R.I. 744, 747 , 391 A.2d 84 , 87 (1978); Town of North Kingstown v. Ashley, 118 R.I. 505, 510 , 374 A.2d 1033, 1036 (1977).

1985See Pennsylvania General Insurance Co. v. Becton, — R.I. —, —, 475 A.2d 1032, 1036 (1984); Fireman’s Fund Insurance Co. v. McAlpine, 120 R.I. 744, 747 , 391 A.2d 84 , 87 (1978); Town of North Kingstown v. Ashley, 118 R.I. 505, 510 , 374 A.2d 1033, 1036 (1977).

2011Mills provides a qualified privilege in defamation cases "if the publisher makes the statements in good faith and `reasonably believes that he has a legal, moral or social duty to speak out, or that to speak out is necessary to protect either his own interests, or those of third person[s], or certain interests of the public.'" 837 A.2d at 720 (quoting Ponticelli v. Mine Safety Appliance Co. , 104 R.I. 549 , 551 , 247 A.2d 303 , 305-06 (1968)).

2009Plaintiff contends that Defendant Sax's lack of good faith negates any claim of a qualified privilege. *Page 20 With regard to the scope of a privilege, "a privileged communication is, by definition, made in good faith." Mills , 837 A.2d at 720 .

2023The United States Supreme Court has stated that “government officials performing discretionary functions generally are granted a qualified immunity and are ‘shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Wilson v. Layne, 526 U.S. 603, 609 (1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

2023In a qualified-immunity analysis, “the first step in evaluating a claim * * * is to ‘determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all.’” Monahan v. Girouard, 911 A.2d 666, 674 (R.I. 2006) (deletion omitted) (quoting Wilson, 526 U.S. at 609 ).

2023Ensey v. Culhane, 727 A.2d 687, 690 (R.I. 1999).

2023Specifically, former Chief Justice Weisberger wrote, “[w]e are of the opinion that, in an appropriate case, the doctrine of qualified immunity might well be applied by this Court.” Ensey, 727 A.2d at 690 .

2019Avilla v. Newport Grand Jai Alai LLC , 935 A.2d 91 , 96 (R.I. 2007) (emphasis added) (quoting Swanson v. Speidel Corp. , 110 R.I. 335 , 341, 293 A.2d 307 , 311 (1972) ).

2011Avilla, 935 A.2d at 96 (stating that once the privilege is established, the defamed person must prove express malice).

2023“Qualified immunity ‘gives government officials breathing room to make reasonable but mistaken judgments,’ and ‘protects all but the plainly incompetent or those who knowingly violate the law.’” Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (quoting Ashcroft v. al-Kidd, 563 U.S. 731 , 743 (2011)).

2023“Qualified immunity ‘gives government officials breathing room to make reasonable but mistaken judgments,’ and ‘protects all but the plainly incompetent or those who knowingly violate the law.’” Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (quoting Ashcroft v. al-Kidd, 563 U.S. 731 , 743 (2011)).

2023“Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was ‘clearly established’ at the time of defendant’s alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citing Saucier v. Katz, 533 U.S. 194 , 201 (2001)).

2013See United States v. Bisanti, 414 F.3d 168, 170-71 (1st Cir.2005) (“ ‘On an appeal respecting a privilege claim, the standard of review depends on the issue.’ * * * Factual determinations are reviewed for clear error, legal determinations are reviewed de novo, and evidentiary determinations are reviewed for abuse of discretion.” (quoting Cavallaro v. United States, 284 F.3d 236, 245 (1st Cir.2002))); see, e.g., Fireman’s Fund Insurance Co. v. McAlpine, 120 R.I. 744, 754 , 391 A.2d 84 , 90 (1978) (after finding that a statement was entitled to the qualified privilege of Rule 26(b)(2) of the Sup

2013See United States v. Bisanti, 414 F.3d 168, 170-71 (1st Cir.2005) (“ ‘On an appeal respecting a privilege claim, the standard of review depends on the issue.’ * * * Factual determinations are reviewed for clear error, legal determinations are reviewed de novo, and evidentiary determinations are reviewed for abuse of discretion.” (quoting Cavallaro v. United States, 284 F.3d 236, 245 (1st Cir.2002))); see, e.g., Fireman’s Fund Insurance Co. v. McAlpine, 120 R.I. 744, 754 , 391 A.2d 84 , 90 (1978) (after finding that a statement was entitled to the qualified privilege of Rule 26(b)(2) of the Sup

2007Rather, by affidavits or otherwise [the opposing party has] an affirmative duty to set forth specific facts showing that there is a genuine issue of material fact.” Providence Journal Co. v. Convention Center Authority, 774 A.2d 40, 46 (R.I.2001) (quoting Bourg v. Bristol Boat Co., 705 A.2d 969, 971 (R.I.1998)); Gallo v. National Nursing Homes, Inc., 106 R.I. 485, 488 , 261 A.2d 19, 21 (1970) (“a party opposing a motion for summary judgment is not entitled to hold back his evidence until trial nor is he entitled to a trial on the possibility that an issue of material fact might turn up at the

2007Rather, by affidavits or otherwise [the opposing party has] an affirmative duty to set forth specific facts showing that there is a genuine issue of material fact.” Providence Journal Co. v. Convention Center Authority, 774 A.2d 40, 46 (R.I.2001) (quoting Bourg v. Bristol Boat Co., 705 A.2d 969, 971 (R.I.1998)); Gallo v. National Nursing Homes, Inc., 106 R.I. 485, 488 , 261 A.2d 19, 21 (1970) (“a party opposing a motion for summary judgment is not entitled to hold back his evidence until trial nor is he entitled to a trial on the possibility that an issue of material fact might turn up at the

2007See Belliveau v. Rerick, 504 A.2d 1360 , 1363 n. 1 (R.I.1986).

2007We noted as much in Belliveau , when we stated that once a qualified privilege is established, it is then necessary "to determine whether the plaintiff [has] raised, in opposition to the motion for summary judgment, a genuine issue of material fact in respect to common-law malice." Belliveau, 504 A.2d at 1363 . 6 .

2007Rather, by affidavits or otherwise [the opposing party has] an affirmative duty to set forth specific facts showing that there is a genuine issue of material fact.” Providence Journal Co. v. Convention Center Authority, 774 A.2d 40, 46 (R.I.2001) (quoting Bourg v. Bristol Boat Co., 705 A.2d 969, 971 (R.I.1998)); Gallo v. National Nursing Homes, Inc., 106 R.I. 485, 488 , 261 A.2d 19, 21 (1970) (“a party opposing a motion for summary judgment is not entitled to hold back his evidence until trial nor is he entitled to a trial on the possibility that an issue of material fact might turn up at the

2007Rather, by affidavits or otherwise [the opposing party has] an affirmative duty to set forth specific facts showing that there is a genuine issue of material fact.” Providence Journal Co. v. Convention Center Authority, 774 A.2d 40, 46 (R.I.2001) (quoting Bourg v. Bristol Boat Co., 705 A.2d 969, 971 (R.I.1998)); Gallo v. National Nursing Homes, Inc., 106 R.I. 485, 488 , 261 A.2d 19, 21 (1970) (“a party opposing a motion for summary judgment is not entitled to hold back his evidence until trial nor is he entitled to a trial on the possibility that an issue of material fact might turn up at the

2000See McReynolds v. Short, 115 Ariz. 166 , 564 P.2d 389, 393-94 (App.1977); Epstein v. Carrier, 12 Conn.App. 691 , 533 A.2d 1221, 1224-25 (1987); Guerdon Industries, Inc. v. Rose, 399 N.W.2d 186, 188 (Minn.Ct.App.1987); Vintage Homes, Inc. v. Levin, 382 Pa.Super. 146 , 554 A.2d 989, 994 (1989); Toltec Watershed Improvement District v. Johnston, 717 P.2d 808, 814-15 (Wyo.1986).

2000See McReynolds v. Short, 115 Ariz. 166 , 564 P.2d 389, 393-94 (App.1977); Epstein v. Carrier, 12 Conn.App. 691 , 533 A.2d 1221, 1224-25 (1987); Guerdon Industries, Inc. v. Rose, 399 N.W.2d 186, 188 (Minn.Ct.App.1987); Vintage Homes, Inc. v. Levin, 382 Pa.Super. 146 , 554 A.2d 989, 994 (1989); Toltec Watershed Improvement District v. Johnston, 717 P.2d 808, 814-15 (Wyo.1986).