If you’ve ever applied for a federal security clearance, you know that the government requires you to list personal verifiers for almost everything you’ve done in the last ten years. That means a lot of people talking about you – and a lot of opportunities for those people to say something damaging (unintentionally or intentionally) to investigators.
So what can you do if you discover that someone provided your security clearance investigator with derogatory information? Can you sue for defamation if your clearance is denied? Like much else in the law, the answer is “it depends.”
To start, understand that libel and slander laws can vary significantly by state; there is no federal defamation law. That being said, you would generally have to prove all of the following:
- That the speaker made a false statement of fact about you. Opinion statements – e.g. “I think Joe is lazy” – are not actionable.
- That the speaker “published” the statement about you (told a third party – whether by speaking the statement or writing it).
- That the speaker knew, or should reasonably have known, that the statement was false. A good faith belief that the statement was true is generally a defense, however the key words here are “good faith.” A reckless disregard for the truth (i.e. repeating an unsubstantiated rumor without first investigating it’s veracity) can be enough for a lawsuit.
- That the statement was not privileged. Many jurisdictions have heightened protections against defamation lawsuits (or bar them altogether) in situations where public policy requires complete candor in communication (e.g. in a courtroom during trial). Employment references often receive “qualified privilege” under the law, which means that the speaker is protected so long as he or she did not act with malice. I’m not aware of any case law specifically in the security clearance context, but a security clearance background investigation would likely be viewed in the same context because a security clearance is typically a condition of employment.
- That you suffered harm because of the statement. There are certain types of statements where harm is generally presumed (e.g. statements that you committed a crime, have a sexually transmitted disease, or lack the skills necessary for your profession). Unless the defamatory statement falls under one of these “per se” categories, the burden is on you to prove harm. That means showing that you would have otherwise been granted a security clearance but for the defamatory statement. In light of the inherently subjective nature of security clearance adjudications, this could be very challenging absent receiving a Statement of Reasons (SOR) with the sole reason for denial being the statement at issue. Of course, the harm doesn’t always just have to be a clearance denial. If you do receive such an SOR and are victorious in fighting it either through responses to the interrogatories or via a formal hearing, the “harm” can be the costs you incurred in taking those extra steps.
In theory, it’s not impossible to win a defamation lawsuit against someone who provides derogatory information to security clearance investigators, but it certainly wouldn’t be easy – and probably for good reason. Even though no one likes hurtful things being said about them, the government needs to know the good, the bad, and the ugly about who it is entrusting with the nation’s secrets.
As for those of you providing references for friends of co-workers’ security clearance, as long as you are honest and not acting with malice, you shouldn’t need to worry about your comments coming back to you in the form of a lawsuit. When in doubt, you can always decline to answer an investigator’s specific question.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.
