by Paul Alan Levy
Michael Chichester, an Arizonan who does social media promotion on a contract basis for various firms, was annoyed when he saw an announcement from Santy Integrated, a local advertising company, recruiting "social media interns" to help promote its clients’ brands on a volunteer basis. It was his belief — which seemed to me justified — that such interns working for a commercial operation are likely to be deemed employees who are entitled to be paid the minimum wage. He was not shy about expressing this view.
In response, Santy made some superficial changes to its social media internship job description (probably not enough to meet the wage and hour laws’ requirements for an internship position, as I see it) but had its lawyer Susanne Ingold threaten to sue Chichester for defamation and interference with business relationships. By an unhappy coincidence, Chichester was doing contract social media for that same law firm (he says that he had no idea that Santy was a client of one of his own customers); the firm promptly terminated his contract. But to make its threats of litigation especially ominous, Santy’s lawyer sent another demand letter to Zooka Creative, another firm for which Chichester was doing contract work, charging it with responsibility for the accusations of its “employee” Chichester and asserting that, having been put on notice of Chichester’s alleged wrongdoing, this company could be held liable for his torts unless it promptly put an end to them.
Flaws in Santy's Claims
These threats are nonsense. The only fact that Chichester asserted was that Santy uses unpaid social media interns to tweet on behalf of its clients, but that statement appears to be true — at least, it is a fair inference from Santy's announcement of such internships that it in fact employs unpaid interns for that work. And libel claims may be brought only over false statements of fact: statements that such internships violate the labor laws, and that companies ought to avoid doing business with Santy while it is using unpaid interns are opinions, over which a defamation action does not cannot succeed. And the claim of intentional interference with business cannot succeed when it rests on reputational injury claims that themselves are barred by the First Amendment. I have tried to get both Santy and Ingold to explain exactly what statements they claim are false, and how those statements can be the basis for a defamation action, but neither has responded.
The threat to Zooka struck me as particularly over the top, even apart from its sloppy writing. First, although the letter asserts that Chichester is an employee, it appears from the contract between Chichester and Zooka that Chichester contracts with Zooka just as he did with Ingold’s law firm, and it is not at all clear why Ingold had reason to think otherwise (another question I was unable to ask her). The general rules of respondeat superior do not apply to contractors, and there appears to be no reason to think that Chichester’s personal campaign about Santy’s pay practices had anything to do with his arrangement with Zooka. Indeed, if Zooka were responsible for Chichester’s communications about Santy just because he does unrelated work for it, the same sort of claim could be asserted against Ingold’s own law firm. The fact that Santy could have the same claim against Ingold’s firm as the one she has threatened to bring against Zooka might disqualify her firm from handling the case against Chichester and Zooka.
Moreover, Zooka is located in California, not Arizona, and absent any evidence that it took any deliberate action against Santy in Arizona, it would have to be sued in California, where the lawsuit would be subject to California’s anti-SLAPP statute. So it looks to me as if the threat to sue Zooka is an empty one, made simply to interfere with Chichester’s business relationship with Zooka. There is a name for that tort.
Free Speech Lawyer Needed in Arizona
Chichester needs a lawyer. We at Public Citizen generally don’t handle defamation cases on the merits at the trial court level, but I hope that an Arizona lawyer who defends free speech will step forward. Other lawyers might want to explore Santy's possible liability for wage-and-hour violations.