Lowell v. Medford School Dist. 549C

79

Argued and submitted March 8; decision of Court of Appeals reversed,

judgment of circuit court reversed, and case remanded to circuit court for

further proceedings July 28, 2022

Thomas LOWELL,

Petitioner on Review,

v.

MEDFORD SCHOOL DISTRICT 549C,

Respondent on Review,

and

Stephanie MALONE et al.,

Defendants.

(CC 18CV19782) (CA A173221) (SC S068891)

515 P3d 359

Plaintiff, a school-concert volunteer and independent contractor for the

school district, brought a defamation action against defendant, the school dis-

trict, based on allegedly defamatory statements made by the district’s employees.

Defendants moved for summary judgment, asserting the common-law defense

of absolute privilege. The trial court granted the motion, concluding that the

absolute privilege protected statements by executive branch employees made

within the course and scope of their duties and that the district was immune

from suit because its employees could claim the privilege. Plaintiff appealed, and

the Court of Appeals affirmed, concluding, based on its interpretation of Shearer

v. Lambert, 274 Or 449, 547 P2d 98 (1976), that all public employees making

statements within the course and scope of their employment could claim abso-

lute privilege for those statements, even if those statements were made with

malice, ill-will or spite, protecting them from liability for defamation claims.

Held: (1) Shearer’s holding and reasoning do not compel the result that all public

employees acting within the course and scope of their employment enjoy an abso-

lute privilege in defamation claims; (2) not all public employees acting within the

course and scope of their employment are entitled to claim the absolute privilege;

(3) defendant’s employees were not entitled to claim the absolute privilege.

The decision of the Court of Appeals is reversed. The judgment of the cir-

cuit court is reversed, and the case is remanded to the circuit court for further

proceedings.

En Banc

On review from the Court of Appeals.*

______________

* On appeal from Jackson County Circuit Court, David G. Hoppe, Judge. 313

Or App 599, 497 P3d 797 (2021).

80 Lowell v. Medford School Dist. 549C

Linda K. Williams, Linda K. Williams PC, Portland,

argued the cause and filed the briefs for petitioner on review.

Rebekah R. Jacobson, Garrett Hemann Robertson PC,

Salem, argued the cause and filed the brief for respondent

on review.

WALTERS, C. J.

The decision of the Court of Appeals is reversed. The

judgment of the circuit court is reversed, and the case is

remanded to the circuit court for further proceedings.

Cite as 370 Or 79 (2022) 81

WALTERS, C. J.

In this defamation case, we hold that defendant pub-

lic employer does not have an affirmative defense of absolute

privilege that entitles it to summary judgment.

I. BACKGROUND

Because the trial court granted defendant’s motion

for summary judgment, we recount the facts in the light

most favorable to plaintiff, the nonmoving party. ORCP 47 C.

Plaintiff provided piano tuning services to defen-

dant Medford School District and assisted in producing

concerts performed in defendant’s facilities. While provid-

ing production assistance for a particular concert, plain-

tiff noticed an echo near the stage. He complained to the

school theater technician, Malone, and, later, feeling that

Malone had not adequately responded, he followed up with

her. Malone reported to her supervisor, Bales, that plaintiff

appeared to be intoxicated, that he “smelled of alcohol,” and

that “this was not the first time.” Bales repeated Malone’s

statements to Armstrong, a district support services assis-

tant. Armstrong sent emails summarizing Malone’s state-

ments to three other district employees, including the

supervisor of purchasing. Armstrong expressed concerns

that appearing on district property under the influence of

alcohol violated district policy and the terms of plaintiff’s

piano tuning contract.

Plaintiff brought this defamation action against

Malone, Bales, and Armstrong, alleging that the statements

that they had made were defamatory. Those three individu-

als are employees of defendant, a public entity, and the court

substituted defendant for the individual defendants. ORS

30.265(3).

Defendant answered, asserting multiple affirma-

tive defenses, including the one at issue here, viz., that pub-

lic employees are entitled to an absolute privilege for defam-

atory statements made in the course and scope of their

employment.1 Defendant alleged that, because its employees

1

In its answer, defendant also asserted a “qualified privilege”—as well as an

“absolute privilege”—as an affirmative defense to plaintiff’s defamation claims.

82 Lowell v. Medford School Dist. 549C

were entitled to that absolute privilege, it too was immune

from liability. See ORS 30.265(5) (public bodies are immune

from liability for any claim arising from actions of officers,

employees, or agents who are immune).

Defendant moved for summary judgment on the

absolute privilege defense, and plaintiff filed a correspond-

ing motion for partial summary judgment, arguing that

defendant was not entitled to immunity because the accused

employees were “low level employees performing ministerial

tasks,” who were not entitled to an absolute privilege. The

trial court agreed with defendant that “[t]he alleged defam-

atory statements were made by public officials in the course

of their official duties and they were entitled to absolute

privilege.”

Plaintiff appealed, and the Court of Appeals affirmed,

relying on its prior interpretation of this court’s decision in

Shearer v. Lambert, 274 Or 449, 547 P2d 98 (1976). Lowell

v. Medford School Dist. 549C, 313 Or App 599, 602-05, 497

P3d 797 (2021). In a series of cases, the latest of which

was Christianson v. State of Oregon, 239 Or App 451, 459,

244 P3d 904 (2010), the Court of Appeals had interpreted

Shearer as holding that “an employee of an executive agency

has an absolute privilege to make defamatory statements

in the exercise of official duties, even if the statements were

malicious and the person who made the statements is a low-

er-level employee.”

We allowed plaintiff’s petition for review to take our

own look at Shearer and to consider whether the absolute

privilege extends to all public employees, including defen-

dant’s employees, and, thereby, to defendant.

II. ANALYSIS

In this court, the parties reprise the arguments

that they made below. Defendant contends that the Court

of Appeals was correct in its interpretation of Shearer and

that this court already has decided that the absolute priv-

ilege extends to all public employees acting within the

However, defendant’s motion for summary judgment was predicated only on its

claim of absolute privilege, and that is the only issue before us. We briefly discuss

the differences between absolute and qualified privilege below.

Cite as 370 Or 79 (2022) 83

course and scope of their employment. Defendant argues

that we must adhere to that interpretation of Shearer, or,

alternatively, that we should endorse that development in

the Court of Appeals’ case law as the correct understand-

ing of the absolute privilege. Defendant does not argue that,

if the absolute privilege extends only to “officers,” then the

individual employees in this case are officers entitled to

claim it. Plaintiff reads Shearer as extending the absolute

privilege only to state “officers” and argues that defendant’s

employees do not fit that description. Plaintiff urges that

we not further extend the absolute privilege to all public

employees.2

Because the parties’ arguments focus on this court’s

decision in Shearer, we describe it and the common-law basis

for our decision in that case in some detail. In Shearer, the

plaintiff, an assistant professor at Oregon State University,

brought a defamation action against plaintiff’s department

head for sending a letter to other faculty members describ-

ing alleged conversations between the department head

and various students. 274 Or at 451. The department head

asserted absolute privilege as a defense. Id. at 452.

This court began its analysis with the following

description of the underpinnings of the defense:

“Underlying the rule of absolute privilege is the assump-

tion that to permit suits against public officers would

inhibit courageous and independent official action, and the

further assumption that the public interest thus served

outweighs the interest of persons damaged by the willful

and malicious conduct of public officers.”

Id. The court remarked, without citation, that it had “fre-

quently been called upon to choose between those competing

interests in cases involving the conduct of judicial, legisla-

tive and executive officers in various levels of authority in

2

The parties appear to assume that defendant is an executive agency and

that its employees are employees of an executive agency. Plaintiff does not mount

an argument that defendant school district is not a state agency or that its

employees cannot be considered “executive branch officials.” Because we reject

defendant’s claim that all public employees are entitled to claim the absolute

privilege, we need not consider whether officers of local entities are entitled to the

privilege that executive branch officers, such as the department head in Shearer,

can claim.

84 Lowell v. Medford School Dist. 549C

each of these branches of government.” Id. at 452-53. The

court then continued:

“In rendering our decisions in these cases we have not

overlooked the arguments advanced by the critics of the

doctrine of absolute privilege. However, although there is

no data which indicates one way or the other whether the

recognition of an absolute privilege is necessary to assure

fearless action on the part of public officers, we think that

the privilege is necessary and therefore, if provision is to

be made to compensate persons harmed by official action,

it will have to be through some other kind of remedy which

still preserves the privilege.”

Id. at 453 (footnote omitted).

The court then set out the issue as it saw it: “the

applicability of the privilege to various types of governmen-

tal officers at various levels of authority or importance.”

Id. at 454. The court noted that it had “extended the absolute

privilege to judicial and quasi-judicial officers at all levels”

and recently held “that the privilege was applicable to sub-

ordinate legislative bodies[.]” Id. It then observed that the

cases in other jurisdictions were in conflict and that some

other jurisdictions had limited the executive absolute priv-

ilege to highly ranked government officials, e.g., the state’s

governor or attorney general, while others had extended the

privilege to “inferior state officers no matter how low their

rank or standing.” Id. at 454. The court reasoned:

“Although we would prefer to confine the absolute privi-

lege to its narrowest possible application, we feel compelled

to adopt the latter view because, starting with the premise

that the privilege is designed to free public officers from

intimidation in the discharge of their duties, we are unable

to explain why this policy would not apply equally to infe-

rior as well as to high-ranking officers.”

Id.

Having set out its reasoning, the court then stated

its holding as follows: “We hold, therefore, that an abso-

lute privilege exists in an action brought against the head

of a department of a state university.” Id. The court also

included, just before its holding, a footnote that reads:

Cite as 370 Or 79 (2022) 85

“The privilege does not apply, however, where the tort arises

out of the exercise of a ‘ministerial’ function. The difficulty

of drawing the line between ‘ministerial’ and ‘discretion-

ary’ functions again suggests the need for legislation which

would provide relief under a principle which would render

the distinction unnecessary.”

Id. at 454 n 9. Finally, the court disposed of the case, deter-

mining that, although the department head could claim

absolute privilege, summary judgment was inappropriate

because factual questions remained. The defendant was

entitled to absolute privilege only if his defamatory state-

ments were made in the performance of his duties, and, on

that issue, the facts were contested. Id. at 455.

Both parties take succor from the court’s opinion.

Defendant contends that the court adopted the broad appli-

cation of the absolute privilege available in other states and

made it applicable to all public employees, no matter the

level of position they hold. Plaintiff concedes that the court

extended the absolute privilege beyond the very highest offi-

cers in the state but contends that its holding was limited to

the facts presented in that case.

To better understand Shearer’s reach, we find it

helpful to review the state of the law of defamation and the

defense of absolute privilege in 1976 when the court issued

its opinion in that case.

A. Common-Law Origins and Development in the State

Courts

Defamation is a common-law claim that was rec-

ognized in England and, with its affirmative defenses,

ported over to this country around the time of its found-

ing. See generally, Van Vechten Veeder, Absolute Immunity

in Defamation Judicial Proceedings, 9 Colum L Rev 463

(1909). The absolute privilege in legislative proceedings,

i.e., the rule that members of Parliament could not be sued

for remarks that they made on the Parliamentary floor,

had existed in English common law since at least 1512.

Van Vechten Veeder, Absolute Immunity in Defamation

Legislative and Executive Proceedings, 10 Colum L Rev 131,

132 (1910). In the United States, the Founders similarly

86 Lowell v. Medford School Dist. 549C

protected members of Congress from liability for statements

made on the House or Senate floor. US Const, Art I, § 6,

cl 1. The absolute privilege in judicial proceedings, i.e., the

rule that witnesses, judges, parties, and parties’ counsel

were protected from liability for statements that they made

during judicial proceedings, existed in English common law

since the sixteenth century. Veeder, 9 Colum L Rev at 474.

In the United States, it appears that state courts imported

the English common-law privilege from a very early period

and applied it mostly as English courts had. See id. at 475

(citing state cases from the mid-nineteenth century apply-

ing the absolute privilege to jurors).

An absolute privilege for high-ranking executive offi-

cers, such as the United States Postmaster General, seems

to have come to prominence towards the end of the nine-

teenth century in both England and the United States.

Spalding v. Vilas, 161 US 483, 16 S Ct 631, 40 L Ed 780

(1896); see also Chatterton v. Secretary of State for India

[1895] 2 QB 189 (statement made by the Secretary of State

for India to another executive official was absolutely priv-

ileged); Veeder, 10 Colum L Rev at 140 (citing cases on

the executive absolute privilege beginning in the 1870s).

At that time, the absolute privilege extended only to very

high-ranking government officials, i.e., cabinet-level govern-

ment actors. A leading scholar in 1910 put the then-current

rule this way: “[Executive absolute privilege] is confined to

official communications from the heads of departments in

which the head of the department speaks for the govern-

ment or as its mouthpiece. It has not been extended to infe-

rior officers.” Id. at 141.

Thus, the basis for the application of the absolute

privilege developed differently based on the branch of govern-

ment in which the communication occurred. When applied to

speakers in the legislative and judicial branches, communi-

cation was protected when made in particular proceedings,

not when made by persons serving in particular positions.

Thus, in judicial proceedings, communications by witnesses

are protected, not because the witnesses are employees of

the judicial branch, but because it is essential that they pro-

vide testimony in such proceedings. When speaking occurs

Cite as 370 Or 79 (2022) 87

in proceedings or is necessary to proceedings, the thinking

goes that all levels of speakers, from judges and legislators,

to witnesses and complainants, should be entitled to an

absolute privilege. It is the value and importance of the pro-

ceeding itself that the absolute privilege protects. See Dan

B. Dobbs, Paul T. Hayden, & Ellen M. Bublick, 3 The Law

of Torts § 540, 244 (2d ed 2011) (explaining that “the privi-

lege also covers witnesses or citizen participants at legisla-

tive hearings, in order to secure citizen participation in the

political process that will more fully inform legislators” and

that that is “supported when the proceeding has a formal

character and procedural safeguards and when the witness

is subpoenaed or gives testimony under oath” (footnote omit-

ted)); Veeder, 9 Colum L Rev at 469 (explaining that “[i]t is

essential to the ends of justice that all persons participat-

ing in judicial proceedings (to take a typical class for illus-

tration) should enjoy freedom of speech in the discharge of

their public duties or in pursuing their rights without fear of

consequences”).

Communication in the executive branch does not

necessarily occur in the same types of structured proceed-

ings, and thus, its importance to effective governance is

less apparent. As put in Dobbs, The Law of Torts § 541 at

244-45:

“The executive branch, including police, administrators at

all levels, and most other governmental employees, is quite

different from the judicial and legislative branch. Except in

quasi-judicial proceedings where the absolute judicial priv-

ilege would apply, employees in the executive branch do not

regularly operate in structured forums like the Congress

or the judiciary; they are not often subject to institutional,

professional, or even regular political constraints; and they

seldom if ever have need of privileges not enjoyed by the

citizens they are obliged to serve. * * * Apart from statute,

executive branch employees were not traditionally afforded

the same broad and absolute immunity granted to employ-

ees in the judicial and legislative branches.”

Accordingly, when applied to speech in the executive branch,

the absolute privilege was confined to official communica-

tions from the heads of departments in which the head of the

department spoke for the government or as its mouthpiece.

88 Lowell v. Medford School Dist. 549C

Over time, most states retained that narrow con-

ception of the executive branch privilege and applied it only

to high-ranking government officers. However, a minority

expanded the executive absolute privilege to apply to “lower-

level” officials. In the year following Shearer, a leading trea-

tise described the state of the law this way:

“While there are a few state court decisions which

appear to [apply the absolute privilege to] subordinate state

officers, such courts in general have refused to accept the

extension, and have recognized no absolute privilege on the

part of such officers as superintendents of schools, mayors

and aldermen, prosecuting attorneys and policemen, state

investigators, and the like. Unless such an executive officer

can claim immunity on the basis of a quasi-judicial or legis-

lative function, he is held to be subject to qualified privilege

only.”

W. Page Keeton, Dan B. Dobbs, Robert E. Keeton, & David

G. Owen, Prosser and Keeton on the Law of Torts, § 114,

822 (5th ed 1984) (footnotes omitted); see also, Restatement

(Second) of Torts, § 591 comment c (1977) (“A good number

of the States have gone further, and have extended the

absolute privilege to state officers of various ranks below

that of cabinet level. The greater number of the state courts

have not made the extension * * * and some have expressly

confined the absolute privilege to superior officers of the

States.”).

B. The Absolute Privilege in Oregon Before Shearer

In Oregon, the absolute privilege developed along

a similar track. The absolute privilege for state legislators

is enshrined in the state constitution. Article IV, section 9,

of the Oregon Constitution provides, in relevant part, “Nor

shall a member for words uttered in debate in either house,

be questioned in any other place.”

The absolute privilege in judicial proceedings pro-

tects statements made by judges in such proceedings. See

Irwin v. Ashurst, 158 Or 61, 66, 74 P2d 1127 (1938) (explain-

ing that “[i]t is well settled in England and in this coun-

try, on the ground of public policy, that a judge has abso-

lute immunity from liability in an action for defamatory

words published in the course of judicial proceedings”). And

Cite as 370 Or 79 (2022) 89

witnesses testifying in such proceedings also are entitled

to an absolute privilege. See Cooper v. Phipps, 24 Or 357,

358, 366, 33 P 985 (1893) (holding that absolute privilege

protected the testimony of a witness made during a divorce

trial).

In 1955, this court considered whether to make the

absolute privilege in judicial proceedings applicable outside

the courtroom itself. In Grubb v. Johnson et al, 205 Or 624,

626-27, 289 P2d 1067 (1955), the plaintiff sued his former

employer for statements that the company had made in a let-

ter that it had sent to a state agency instructing the agency

to revoke the plaintiff’s sales license because the plaintiff

had embezzled money from the company. The company

asserted the absolute privilege, arguing that the letter was

part of a quasi-judicial proceeding. Id. at 640. The court dis-

agreed, reasoning that the revocation process was not suffi-

ciently like a judicial proceeding to make the application of

the absolute privilege appropriate. The revocation process

did not permit the agency to exercise discretion; revocation

was automatic and mandatory upon receipt of the letter.

Id. at 640-41.

The court reached a different conclusion four years

later in Ramstead v. Morgan, 219 Or 383, 401, 347 P2d 594

(1959). There, the court determined that complaints about

a lawyer in a letter sent to the Oregon State Bar were pro-

tected by a “quasi-judicial” absolute privilege. Id. at 396.

The court reasoned that extension of the privilege was nec-

essary to protect the public and explained that those who

might lack the resources necessary to perfectly present their

grievances should not have to face the threat of liability for

making complaints about lawyer misconduct. Id. at 400-01.

Accord Moore v. West Lawn Mem’l Park, 266 Or 244, 250-51,

512 P2d 1344 (1973) (absolute privilege applied to letter writ-

ten to the State Board of Funeral Directors and Embalmers

with quasi-judicial function as a licensing body; Grubb did

not control because the board had discretion about whether

to revoke the license).

In 1975, this court extended the absolute privilege

in legislative proceedings to proceedings in addition to those

conducted on the floor of the House and Senate. In Noble v.

90 Lowell v. Medford School Dist. 549C

Ternyik, 273 Or 39, 539 P2d 658 (1975), the court held that

the absolute privilege applied to a statement that a mem-

ber of a port commission made in a commission meeting

because:

“Uncompensated citizens, serving at least in part to fulfill

their civic responsibility, comprise the vast bulk of numer-

ous legislative bodies in Oregon. Port commissions, city

councils, school boards, and special service districts are

some of these bodies. Oregon prides itself on its citizen

participation. These bodies make economic, social, edu-

cational, and other important decisions. This system will

function only if capable people are willing to serve on these

bodies.

“We are of the opinion that a substantial number of

capable people would be reluctant to serve if their state-

ments, made in the course of their legislative duties, were

only conditionally privileged * * *.

“We are also of the opinion that persons who would be

willing to serve would be hesitant to bring information to

the attention of their legislative bodies if the publication of

this information were only conditionally privileged.”

Id. at 43-44.

Thus, when Shearer reached this court in 1976, the

state of the law of absolute privilege in Oregon, with respect

to governmental proceedings or actors, was that there were

three types of absolute privilege: (1) legislative absolute priv-

ilege, (2) judicial absolute privilege, and (3) absolute privi-

lege for “other acts of state,” i.e., executive absolute privilege.

Grubb, 205 Or at 631. As the court said in Grubb:

“The class of absolutely privileged communications is nar-

row and is practically limited to legislative and judicial

proceedings and other acts of the state, including, it is said,

communications made in the discharge of a duty under

express authority of law, by or to heads of executive depart-

ments of state, and matters involving military affairs.”

Id. (internal quotation marks and citation omitted). Legislative

and judicial proceedings included local proceedings and

quasi-judicial proceedings. The court had extended the abso-

lute privilege to communications made in such proceedings

Cite as 370 Or 79 (2022) 91

to protect the public and ensure essential participation and

the provision of important information.

C. Shearer’s Reach

With that understanding of the law at the time of

Shearer, we return to its holding and consider whether, as

defendant argues, the court held that all public employ-

ees are entitled to claim the absolute privilege as long as

they operate within the course and scope of their duties. As

noted, the court started with the premise that the privilege

is designed to free public officers from intimidation in the

discharge of their duties and noted that it had “extended the

absolute privilege to judicial and quasi-judicial officers at all

levels.” Shearer, 274 Or at 454. The court then stated that

it was unable to explain why that policy would not apply

equally to inferior as well as to high-ranking officers, and

stated its holding—that the defendant, a university depart-

ment head, was entitled to claim the absolute privilege. Id.

For the following reasons, we conclude that neither

that reasoning nor that holding require us to agree with

defendant that, under Shearer, all public employees have an

absolute privilege to make defamatory statements in the

course and scope of their duties, even when they do so with

malice, ill will, or spite.

First, in Shearer, the court did not state its hold-

ing in those terms. After reasoning as described, the court

expressly stated its holding as follows: “We hold, therefore,

that an absolute privilege exists in an action brought against

the head of a department of a state university.” Id.

Second, the court did not expressly hold that the

absolute privilege is available to “inferior officers” or define

that term. Even if Shearer can be understood to extend the

privilege to state executive “officers,” it cannot be under-

stood to extend the privilege to all public employees.

Third, the court inserted a footnote, quoted above,

that made clear that it did not intend to extend the abso-

lute privilege to all public employees acting within the

course of their duties. The footnote specifies that the abso-

lute privilege is not intended to apply to actors who perform

92 Lowell v. Medford School Dist. 549C

“ministerial” tasks; it applies only to those who perform

“discretionary” functions, and only when they are perform-

ing such functions. Id. at 454 n 9.3 In using those terms,

the court used wording found in the Oregon Tort Claims

Act (OTCA), waiving sovereign immunity. At the time that

Shearer was decided, the OTCA provided:

“Every public body is immune from liability for:

“* * * * *

“(d) Any claim based upon the performance of or the

failure to exercise or perform a discretionary function or

duty, whether or not the discretion is abused.”

Former ORS 30.265(2)(d) (1975)4 (emphasis added). The court

also had recently decided Smith v. Cooper, 256 Or 485, 475

P2d 78 (1970). In Smith, the court had considered whether

the doctrine of sovereign immunity protected the State

Highway Commission from an action brought by the plain-

tiff alleging negligence in highway planning. The court

devoted a substantial part of the opinion to the question of

whether designing the highway was a ministerial function

(in which case sovereign immunity would not apply) or a

discretionary one (in which case sovereign immunity would

apply). Id. at 495-512. Thus, the “ministerial” and “discre-

tionary” distinction would have been a familiar concept for

the Shearer court to draw on. Significantly, however, we

do not think that the court intended to import the law of

sovereign immunity generally into the absolute privilege

analysis. See Noble, 273 Or at 41 (explaining that although

“[c]ourts have intermingled the terminology of privilege, a

part of the law of defamation, and immunity[,] * * * [t]here

is at least a theoretical difference”). A better understanding

of the footnote is that the court was using a familiar con-

struct to articulate its intent to adhere to the purpose that

3

As noted above, the footnote reads:

“The privilege does not apply, however, where the tort arises out of the exer-

cise of a ‘ministerial’ function. The difficulty of drawing the line between

‘ministerial’ and ‘discretionary’ functions again suggests the need for legis-

lation which would provide relief under a principle which would render the

distinction unnecessary.”

4

This statute has been amended several times since 1975, however, none of

those amendments is material to our discussion here.

Cite as 370 Or 79 (2022) 93

underlies both the common-law defense of absolute privi-

lege and the legislature’s limited waiver of sovereign immu-

nity: that those making important governmental decisions

requiring the exercise of judgment be assured that they can

do so “fearlessly.” The court’s footnote made clear that it

did not intend to extend the absolute privilege to all public

employees without bounds.

Finally, the court in Shearer plainly did not view

its earlier extension of the absolute privilege to proceedings

broader than those in the Capitol and the courts, as requir-

ing it to extend that privilege to all who serve in legisla-

tive, judicial, and executive positions. In Shearer, the court

noted that it had “frequently been called upon” to choose

between competing interests “in cases involving the conduct

of judicial, legislative and executive officers in various levels

of authority in each of these branches of government.” 274

Or at 452-53. The court did not cite cases for that proposi-

tion, however, and although we have looked, we have been

unable to find cases before Shearer that meet that descrip-

tion, particularly for the executive branch of government.

As discussed, the court’s earlier cases extended the absolute

privilege to a broader range of proceedings; those cases did

not extend the absolute privilege in defamation claims to

communications by officers in a broader range of positions.

And, with respect to the executive branch, we are not aware

of earlier cases in which the court discussed the application

of the privilege in the executive branch in any detail.

For those reasons, we read Shearer to stand for

the proposition that the absolute privilege applies when

the public’s interest in functioning government is so great

that it outweighs an individual’s interest in redress for

reputational harm, and to hold that, in the case of a uni-

versity department head, the public interest is paramount.

We reject defendant’s argument that Shearer compels us to

decide that the absolute privilege defense to a defamation

claim extends to all public employees, including defendant’s

employees here, as long as they act within the course and

scope of their employment.

Defendant also argues that, even if Shearer does

not compel us to do so, we should accept an approach that

94 Lowell v. Medford School Dist. 549C

makes the absolute privilege available to all public employ-

ees, reminding us that, to claim that privilege, employees

must establish that they are acting within the course and

scope of their duties. Defendant submits that that require-

ment makes the defense sufficiently narrow, providing both

adequate redress to plaintiffs and protection from undue

harassment to public employees. We reject that argument.

Defendant is correct that this court conceives of the

absolute privilege as narrow in scope. Since Shearer, this

court has maintained, as it stated in Grubb, that the abso-

lute privilege is “narrow” and applies in “only a handful of

situations.” See Wallulis v. Dymowski, 323 Or 337, 348, 918

P2d 755 (1996) (“Oregon has recognized only a handful of

situations in which defamatory statements are absolutely

privileged.”); DeLong v. Yu Enterprises, Inc., 334 Or 166, 171,

47 P3d 8 (2002) (“Historically, this court has recognized the

application of an absolute privilege for defamatory state-

ments in very limited circumstances.”). Defendant is incor-

rect, however, in urging that that privilege can be extended

to all public employees who make defamatory statements in

the course of performing their duties, including those who do

so with malice, without upsetting the balance of competing

interests on which the absolute privilege rests. Protecting

public employees from harassment is not the policy end for

which the absolute privilege is designed. Protecting public

employees, is, instead, a means to ensure good governance

by fearless officials. As New York state’s highest court put

it when it refused to broaden the applicability of the privi-

lege: “[T]he immunity is intended for the welfare of the pub-

lic and not for governmental employees.” Stukuls v. State,

42 NY 272, 278, 366 NE2d 829, 833, 397 NYS2d 740, 744

(1977).

This court has recognized an absolute privilege as

an affirmative defense to defamation claims, understanding

that it might bar some meritorious claims; this court has

done so, however, only when it deems the privilege essential

to effective governance. We will not extend the absolute priv-

ilege when that purpose is not necessarily implicated. As

the Kentucky Court of Appeals said in 1910, when it refused

to extend the absolute privilege to a school superintendent:

Cite as 370 Or 79 (2022) 95

“It would be a dangerous and vicious thing to license people

to write and speak without any restraint. There are many

evil-minded and recklessly disposed who would shelter if

they could under the protection afforded by absolute priv-

ilege and give free bridle to tongue and pen to injure or

destroy an enemy. It would place in the power of revengeful

and unscrupulous persons the right to malign at will those

who had incurred their displeasure, and allow the traducer

to scatter without stint scandalous and defamatory matter

about all who might come within the circle of his enmity.”

Tanner v. Stevenson, 138 Ky 578, 585, 128 SW 878, 881 (1910).

In reaching that conclusion, we, like other jurisdictions to

consider the scope of the absolute privilege, emphasize that

its remedy is potent: It protects a defendant not just from

being held liable at the conclusion of a trial; it prevents a

plaintiff from reaching a trial at all. Wallulis, 323 Or at 347.

Another common-law defense in defamation actions, a qual-

ified privilege, is available for defendants who must defend

the action, but who can defeat it if the plaintiff fails to

establish that the defendant abused the privileged occasion.

Id. at 348. Some state courts that have been asked to extend

an absolute privilege to lower-level executive branch speak-

ers have decided that a qualified privilege is sufficiently pro-

tective. See Bradford v. Mahan, 219 Kan 450, 455, 548 P2d

1223, 1228-29 (1976) (refusing to extend absolute privilege

to police officers and stating that “[t]he police should never

act with malice or ill will against the citizens of this state

without being called to account for their actions,” and “[a]

qualified privilege will sufficiently insulate police officers

and insure the vigorous enforcement of the law”); Stukuls,

42 NY at 278, 366 NE2d at 833, 397 NYS2d at 744 (conclud-

ing that qualified privilege would adequately protect lower-

level officials because “to cloak public officers who do not

have such a need with the privilege to wrongfully vilify oth-

ers with impunity while their critics remain fully liable for

their own tortious communications[ ] would tend to squelch

criticism of government by its citizens while serving no suf-

ficiently countervailing public purpose”).

In summary, we reject defendant’s argument that

we already have extended or should extend the absolute

privilege to all public employees acting within the course

96 Lowell v. Medford School Dist. 549C

and scope of their duties. As noted, defendant does not argue

that it is entitled to the benefit of that defense because its

employees are “officers” equivalent to the university depart-

ment head in Shearer. Consequently, defendant was not enti-

tled to claim the affirmative defense of absolute privilege,

and the trial court erred in granting it summary judgment

on that basis.

The decision of the Court of Appeals is reversed.

The judgment of the circuit court is reversed, and the case

is remanded to the circuit court for further proceedings.