Opinion
No. 64852-7-I.
March 28, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for rung County, No. 09-2-20437-3, Michael J. Trickey, J., entered December 29, 2009.
Affirmed by unpublished opinion per Cox, J., concurred in by Dwyer, C.J., and Leach, J.
Paul Brecht appeals the trial court's summary judgment dismissal of his defamation action against Fisher Communications, Inc., John and Jane Doe Carlson, and Ken and Jane Doe Schram (collectively "the Fisher defendants"). This action also named as defendants other individuals who are not involved in this appeal. Because Brecht is a limited public figure and fails in his burden to show actual malice by the Fisher defendants, we affirm.
Richard Pope, an attorney, ran for King County Council against incumbent Jane Hague in 2007. The race was heated and received substantial media attention. Hague had been charged with DUI, and Pope had run unsuccessfully for a number of public offices in prior years.
Paul Brecht was a prominent endorser of the Pope campaign. In October 2007, the Pope campaign distributed a mailer featuring an endorsement from Brecht.
The Hague campaign responded by distributing a mailer that stated:
VOTER ALERT
Paul Brecht tops Pope's endorsement list. Brecht also tops law enforcement's list with multiple domestic violence arrests and at least one assault conviction.
Clerk's Papers at 306.
On October 29, 2007, Brecht filed a defamation lawsuit against Hague and her campaign for publishing these statements in the campaign mailer. Pope represented Brecht in that action.
Brecht v. Hague, No. 07-2-34389-02 SEA (King County Superior Court).
The Seattle Post Intelligencer ran a story about the campaign and the lawsuit on the morning of October 30, 2007. Later that same morning, Fisher Communication's local radio station KVI 570 aired its morning talk show, "The Commentators," on the topic of the Pope/Hague campaign. The show's hosts, Ken Schram and John Carlson, invited both Pope and Hague to appear on the show. Only Pope accepted, and he was interviewed as a guest on the show.
See Neil Modie, Jane Hague Faces Defamation Suit by Richard Pope Supporter, Seattle P.I., Oct. 30, 2007, available at http://www.seattlepi.com/local/337352_hague30.html.
During the course of the show, Carlson read to Pope a section of the Hague mailer that appears to have been the subject of Brecht's lawsuit and the October 30, 2007, article in the Seattle Post Intelligencer. Carlson questioned Pope about it. We discuss in more detail later in this opinion the exact exchange between Carlson and Pope. We will also discuss comments made by Schram, the co-host of the show, as well as two listeners who called in with comments during the broadcast.
Based on comments during the broadcast by Carlson, Schram, and the two callers, Brecht sued for defamation. The trial court granted the Fisher defendants' motion for summary judgment.
Brecht appeals.
DEFAMATION
Brecht argues that the trial court erred in granting summary judgment. We disagree.
A motion for summary judgment presents a question of law that this court reviews de novo. "`[T]he function of the trial court in ruling on a defense motion for summary judgment in a defamation action is to determine if the plaintiff's proffered evidence is of a sufficient quantum to establish a prima facie case with convincing clarity. Unless the plaintiff has done so, the motion must be granted.'"
Osborn v. Mason County, 157 Wn.2d 18, 22, 134 P.3d 197 (2006).
Mark v. Seattle Times, 96 Wn.2d 473, 486, 635 P.2d 1081 (1981) (quoting Sims v. KIRO, Inc., 20 Wn. App. 229, 237, 580 P.2d 642 (1978)).
A defamation plaintiff must show four essential elements: (1) falsity, (2) an unprivileged communication, (3) fault, and (4) damages. "The burden of proof on the element of fault depends on the nature of the defamed party." When the defamed party is a public figure or public official, he or she must establish actual malice. If, on the other hand, the defamed party is a private figure, only negligence need be shown. To make out a prima facie case for purposes of avoiding summary judgment, the plaintiff must allege as to each element facts that would raise a genuine issue of material fact for the jury.
Demopolis v. Peoples Nat. Bank of Wash., 59 Wn. App. 105, 108, 796 P.2d 426 (1990) (citing LaMon v. Butler, 112 Wn.2d 193, 197, 770 P.2d 1027 (1989)).
Id. at 108 n. 1.
Id.
Mark, 96 Wn.2d at 486.
Neither party challenges the elements of fault or damages, which we assume are established for purposes of our review. Thus, our focus is on whether Brecht has established any genuine issue of material fact regarding actual malice, material falsity, or the unprivileged nature of the statements that are at issue in this appeal.
Actual Malice
The primary issue in this appeal is whether Brecht met his burden of proof to show actual malice.
As a preliminary matter, we first address whether Brecht is a public figure for the purposes of this action. Brecht does not directly challenge his status as a limited public figure in his opening brief. In fact, he devotes 21 pages of that brief to a discussion of actual malice, a principle that only applies to public officials and public figures. In his reply brief, he devotes an additional 11 pages to the principle. Even then, he does not argue against his status as a limited public figure. He merely questions the application of the status to him, "an endorser of a candidate." For the following reasons, we conclude that Brecht is a limited public figure under the facts of this case.
The Supreme Court addressed who qualifies as a public figure inGertz v. Robert Welch, Inc. The Court concluded that a plaintiff may become a public figure through "either of two alternative [means]."
418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974).
Id. at 351.
In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions.
Id.
Here, Brecht fits into the second category of public figures outlined in Gertz. He became a limited public figure for the purposes of the Pope/Hague campaign and the context of this defamation action by injecting himself into the campaign through his prominent endorsement of Pope. Moreover, the Hague campaign's response to that endorsement in its "voter alert" mailed to voters drew him further into what was already a contentious campaign. The subsequent media coverage of his campaign involvement and defamation lawsuit against the Hague campaign further supports his status as a limited public figure. The Seattle Post Intelligencer's October 30, 2007 story on the campaign prominently featured Brecht's involvement in the campaign, the Hague campaign mailer, and Brecht's subsequent defamation lawsuit against Hague. The discussion about Brecht during the public radio broadcast that is the subject of this action further supports the conclusion that Brecht is a limited public figure due to the "nature and extent of [his] participation in the particular controversy giving rise to the defamation."
See Neil Modie, Jane Hague Faces Defamation Suit by Richard Pope Supporter, Seattle P.I., Oct. 30, 2007, available at http://www.seattlepi.com/local/337352_hague30.html.
Gertz, 418 U.S. at 352.
A public figure who sues for defamation may not recover damages without showing that the defamatory statement was made with "actual malice" — that is, made with knowledge of its falsity or with reckless disregard to its truth or falsity. The Supreme Court defined "reckless disregard" inSt. Amant v. Thompson:
Herron v. KING Broadcasting Co., 112 Wn.2d 762, 775, 776 P.2d 98 (1989) (quoting New York Times v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964)).
"Reckless disregard," it is true, cannot be fully encompassed in one infallible definition. . . . In Garrison v. Louisiana, [ 379 U.S. 64, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964)] . . . the opinion emphasized the necessity for a showing that a false publication was made with a "high degree of awareness of . . . probable falsity." Mr. Justice Harlan's opinion in Curtis Publishing Co. v. Butts, [ 388 U.S. 130, 153, 87 S. Ct. 1975, 1991, 18 L. Ed. 2d 1094 (1967)], stated that evidence of either deliberate falsification or reckless publication "despite the publisher's awareness of probable falsity" was essential to recovery by public officials in defamation actions. These cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.
Id. (emphasis added).
A defamation plaintiff must show actual malice with convincing clarity. Accordingly, the plaintiff must offer evidence sufficient to permit a reasonable trier of fact to find clear and convincing proof of actual malice.
Richmond v. Thompson, 130 Wn.2d 368, 385-86, 922 P.2d 1343 (1996).
Id.
Statements by Callers to Radio Talk Show
The next issue is whether the Fisher defendants may be held liable for "republishing" the statements of the anonymous callers "Mark" and "Chris." We conclude that they may not.
During the course of the Pope interview, Carlson and Schram accepted several calls from listeners, including "Mark" and "Chris."
"Mark" made several statements about Brecht:
I think that this is an odd individual in Richard Pope. And the fact that he chose, as his primary endorser, a man who had been convicted of domestic violence is just bizarre to me.
Mr. Brecht was convicted of domestic violence, Mr. Pope, and you know that's the truth because you are his lawyer, like you are for a lot of men who rough up their wives. He was convicted of domestic violence. Is that true or untrue?
. . . .
And he's your main endorser, and the guy has a domestic violence conviction and he is vouching in that mail piece for your integrity.
Clerk's Papers at 257-59.
"Chris" made similar statements:
I was just listening to [Pope] talk about his top three issues, which are transportation, affordable housing, and public safety. The funny thing is Jane Hague is endorsed by the transit union drivers, the Affordable Housing Council, and the jail guards. Pope doesn't seem to have a leg to stand on anything. He's got no endorsements but for this one guy, Paul Brecht. . . . So not only is [Pope] running around with this guy, he's got him working on his campaign, and he's pretty much a woman beater. Now we can debate the finer points of actually his conviction, or you know. . . .
. . . .
But [Brecht] is not exactly upstanding. And it's just — it's so illustrative of Richard's whole career that — look at the people he runs with. . . .
Clerk's Papers at 264-65.
Brecht argues that these statements include materially false information of a defamatory nature and that the Fisher defendants should be held liable for publishing them on the Commentators. Whether a broadcaster may be liable for defamatory statements made by a caller to a radio talk-show is at issue.
Few cases address the liability of broadcasters for publishing the allegedly defamatory statements of callers to a radio talk-show. But in three cases involving substantially similar factual situations, courts in other jurisdictions have held that a radio station does not act with actual malice in publishing the allegedly defamatory statements of callers to a radio talk-show. Adams v. Frontier Broadcasting Co. is instructive. There, an anonymous person called into a talk radio program broadcast by Frontier and stated that Adams, an Insurance Commissioner, had been discharged for dishonesty. Adams sued the radio station for defamation, arguing that the station should have used a "tape delay" system in order to pre-screen the caller's comment prior to publishing it on-air. Frontier moved for summary judgment, arguing that the Commissioner could not demonstrate that it had acted with actual malice in publishing the defamatory comment. The trial court granted summary judgment in favor of Frontier, concluding that there were no facts showing actual malice and that the failure to use an electronic delay system did not constitute reckless disregard.
See Pacella v. Milford Radio Corp., 18 Mass. App.Ct. 6, 462 N.E.2d 355 (1984); Nat'l Ass'n of Gov't Emp., Inc. v. Central Broadcasting Corp., 379 Mass. 220, 396 N.E.2d 996 (1979); Adams v. Frontier Broadcasting Co., 555 P.2d 556 (Wyo. 1976).
555 P.2d 556 (Wyo. 1976).
Id. at 558.
Id.
Id.
Id.
The Wyoming Supreme Court affirmed:
The standard of actual malice assumes in both of its aspects (publication with actual knowledge of falsity or publication while entertaining serious doubts as to truth) an opportunity on the part of the publisher to evaluate the matter to be published and form some conclusion as to falsity or doubts as to truth. By not using the electronic delay system, which resulted in instantaneous publication of the offending remark, Frontier deprived itself of any opportunity to evaluate the information published and form a conclusion as to falsity or a doubt with respect to truth. The legal effect in an action such as this is that this combination of circumstances makes it impossible for Adams to factually establish the actual malice required to show a violation of the constitutional standard. This Court must resolve the question as to which party must bear the impact of the injury resulting from such a combination of circumstances and why is the burden to be so assigned. While factually distinguishable, New York Times Co. v. Sullivan, and other cases which hold that failure to investigate is insufficient to demonstrate reckless disregard suggest that simply depriving oneself of the opportunity to evaluate the information and form a conclusion with respect to falsity or doubt as to truth does not amount to reckless disregard under the Times rule. We hold that Adams must be foreclosed from recovery under these circumstances.
This result is supported by the same factors which were relied upon in the development of the federal rule with respect to liability founded in the Times doctrine. . . . In the law generally and within this area particularly there has developed a strong policy against censorship. We use the term "censorship" to connote all factors which would inhibit the freedom and spontaneity of the public dialogue. It includes administratively imposed requirements, judicially mandated requirements, and those limitations which voluntarily are imposed by those involved in disseminating the public dialogue. The history of the federal approach in this particular area is outlined in Red Lion Broadcasting Co. v. F.C.C.
For our purposes the approach taken, as recognized by the Supreme Court of the United States, is summarized by the following language:
It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee. . . . It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here.
Another key to resolution of this issue is suggested by the following language, more general in application, from New York Times:
Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it well may include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.
It is in this context that we are urged by Adams to decide that failure to use an electronic delay device meets the constitutional standard of `reckless disregard,' at least to the extent that a factual issue requiring trial is present.
. . . .
Recognizing clearly the possibility for defamation to occur on open microphone talk shows . . . we hold that the commitment to `uninhibited, robust, and wide-open' public debate must, in the balance, outweigh the common law right of an individual who is a public official or public figure to be free from defamatory remarks. Programs such as this are the modern version of the town meeting in vogue earlier in our country's history, and they are utilized in a similar way to afford every citizen an opportunity to speak his mind on any given issue.
Id. at 564-66 (internal citations and quotation marks omitted).
The facts of Adams are substantially similar to the facts at issue here and control the disposition in this case. "Mark" and "Chris" were both anonymous callers to the talk-show broadcast by Fisher and hosted by Schram and Carlson. Both Carlson and Schram submitted declarations stating that they did not know either "Mark" or "Chris" and that they had no idea what the callers would say prior to placing them on the air. Brecht did not submit any declarations or affidavits to contest their testimony.
As discussed in Adams, the lack of opportunity for Carlson and Schram to evaluate the statements of "Mark" and "Chris" prior to publication, or to form some conclusion as to the truth or falsity of those statements, precludes Brecht from making the factual showing necessary to demonstrate actual malice. "The standard of actual malice assumes in both of its aspects (publication with actual knowledge of falsity or publication while entertaining serious doubts as to truth) an opportunity on the part of the publisher to evaluate the matter to be published and form some conclusion as to falsity or doubts as to truth."
Id. at 564.
Two courts in Massachusetts have reached the same conclusion. In National Association of Government Employees, Inc. v. Central Broadcasting Corp., the Massachusetts Supreme Court dismissed the plaintiff's defamation action based on an allegedly defamatory comment made by an anonymous caller to a radio talk-show. It held that the plaintiff failed to provide clear and convincing evidence that the radio station host adopted the caller's statement with knowledge that it was false or with reckless disregard.
379 Mass. 220, 396 N.E.2d 996 (1979).
Id. at 230-32.
Likewise, in Pacella v. Milford Radio Corp., the Massachusetts Court of Appeals concluded that a radio station host's failure to terminate an anonymous caller did not render the host or radio station liable for the caller's defamatory comments because there was no evidence that the host acted with reckless disregard for the statement's truth or falsity. The court reasoned:
18 Mass. App.Ct. 6, 462 N.E.2d 355 (1984).
Id. at 16.
Of particular importance here is "the medium by which the statement is disseminated and the audience to which it is published." The defendants organized a program concerning an upcoming election, asked the candidates to present statements, and afforded the public the opportunity to question the candidates freely.
. . . .
Unlike the commercial advertisement in New York Times which can be checked for accuracy prior to publication, a statement called into a talk-show cannot be verified within the seven seconds afforded by electronic equipment. . . .
Moreover, the role of a talk-show host differs from that of a reporter or newscaster. His function is not to discover the news but to moderate the public debate. "It is one thing to require a newspaper to check the accuracy of an interview. But it may be another matter to hold a TV newsperson responsible for the spontaneous live utterance of an interview."
Id. at 13-14 (internal citation omitted).
Brecht argues that the Fisher defendants should be held liable for republishing the statements of "Mark" and "Chris" because the hosts agreed with the statements and failed to publish any exculpatory information to correct the false impression caused by the statements. Neither argument demonstrates actual malice, as legally defined by the cases. Accordingly, Brecht failed to produce any evidence to demonstrate that Carlson or Schram knew what the callers would say prior to publication or had the opportunity to form a conclusion as to the truth or falsity of the statements prior to publication. Without such a showing, Brecht fails in his burden to show actual malice with respect to the statements of the anonymous callers.
Further, the most reasonable reading of the radio broadcast transcript shows that neither host adopted the allegedly defamatory statements of the anonymous callers. The hosts' responses to "Mark" are as follows:
Mr. Carlson: Yes.
. . . .
Mr. Carlson: All right. Well, let's give [Mr. Pope] a chance —
. . . .
Mr. Carlson: — to respond. Richard?
. . . .
Mr. Schram: All right. Let's give Mr. Pope a chance to respond now.
Clerk's Papers at 257-60.
The hosts' responses to "Chris" were similar.
Mr. Carlson: Right.
. . . .
Mr. Carlson: All right. Richard?
Clerk's Papers at 264-65.
Read in context, the responses of "yes," "all right" and "right" do not demonstrate agreement or endorsement. Rather, these comments appear to be colloquial responses acknowledging the speakers' statements.
Further, as discussed in the next section of this opinion, the hosts were under no obligation to otherwise research or provide exculpatory information to "correct" any misimpression about Brecht created by the callers' comments.
Under the persuasive reasoning of Adams, Central Broadcasting, and Pacella, neither a radio talk-show host nor the broadcasting station may be held liable for the allegedly defamatory comments of an anonymous caller. To impose such liability would inhibit the First Amendment protection of "uninhibited, robust, and wide-open" public debate.
Sullivan, 376 U.S. at 376.
Finally, Brecht's unsupported allegations of a conspiracy — that Carlson and Schram knew "Mark" and "Chris," and knew what they were going to say on the air — are pure conjecture. As we already noted, he did not provide any declarations or affidavits based on personal knowledge to refute the testimony of Carlson and Schram. The nonmoving party may not rely on speculation or "mere allegations, denials, opinions, or conclusory statements" to establish a genuine issue of material fact.
Int'l Ultimate, Inc. v. St. Paul Fire Marine Ins. Co., 122 Wn. App. 736, 744, 87 P.3d 774 (2004).
Statements by Carlson and Schram
The next question is whether Carlson or Schram acted with actual malice. We conclude that Brecht fails to establish that they did.
The questions that we must address are, first, did either host have actual, subjective knowledge that any of the statements were false? And second, did Brecht produce any evidence from which a jury could conclude that Carlson or Schram acted with reckless disregard for the truth? Brecht's arguments generally do not distinguish between the two methods of proving actual malice, but appear to focus primarily on whether Carlson and Schram acted with reckless disregard for the truth.
Brecht points primarily to the following statements by Carlson as the basis for his defamation action against the hosts. First, Carlson asked Pope:
And Jane Hague has sent out a flyer: "Voter alert, Paul Brecht tops Richard Pope's endorsement list. Brecht also tops law enforcement's list with multiple domestic violence arrests and at least one assault conviction."
He has been arrested for domestic violence, but I guess it's questionable whether he's got the convictions, is that it?
Clerk's Paper at 252.
Second, Carlson asked Pope:
All right. Here, basically is what your opponent is saying about you. You're a nut. You're unstable. Uh, you don't like women. You're volatile. You're unqualified. What do you say to that?
Clerk's Papers at 248.
Brecht offers several theories to support his argument that Carlson and Schram acted with actual malice in republishing the Hague mailer. First, he argues that Carlson acted with reckless disregard for the truth because the circumstantial evidence shows that he was motivated to defame Brecht. He also argues that Carlson and Schram were involved in a conspiracy to defame him. These arguments are unsupported by any declaration by Brecht and are not persuasive. The only evidence that Brecht points to in support of his claim that Carlson was motivated to defame him is the deposition testimony of Brett Bader, Hague's campaign manager. He argues that because Bader and Carlson knew each other and had previously worked together, they must have hatched a plan to help the Hague campaign. But Carlson specifically denied agreeing to help Bader in any way. The fact that Carlson knew Bader is not sufficient evidence for a reasonable jury to conclude that Carlson was motivated to defame Brecht. Likewise, Brecht's elaborate allegations of conspiracy are not supported by any facts in evidence. And a prima facie case, sufficient to defeat summary judgment, must consist of specific, material facts.
LaMon, 112 Wn.2d at 197.
Brecht also claims that Carlson and Schram acted with actual malice in republishing the campaign mailer because the information in the mailer came from Bader, who was a questionable source. This argument also fails because Brecht does not support his claim with facts to show that either Carlson or Schram knew that Bader created the mailer.
Brecht next argues that Carlson's admission of previous "run-ins" with Pope supports his claim that Carlson was biased against Brecht. But again, this is not supported by the record. At most, Carlson acknowledged that Pope had previously criticized his political views. This is unsurprising, given the fact that both Pope and Carlson appear to be vocal about their political positions. It is not evidence that Carlson acted with actual malice during the course of the radio show at issue in this lawsuit.
Brecht also argues that Carlson and Schram's failure to undertake appropriate investigation into the allegations contained in the Hague mailer demonstrates reckless disregard for the truth. This is not supported by the law.
Brecht cites Church of Scientology v. Time Warner, Inc. for the proposition that failure to adequately investigate combined with bias on the part of the publisher can give rise to an inference of actual malice. First, as discussed above, Brecht fails to show that either Carlson or Schram was biased against him. Second, courts generally will not find that failure to investigate or failure to verify information is evidence of actual malice. The court in Scientology appears to have reached its conclusion based only on the combination of bias and failure to investigate.
903 F. Supp. 637 (S.D.N.Y. 1995).
Id. at 641.
See, e.g., St. Amant, 390 U.S. at 733 (failure to investigate not indicative of actual malice); Edwards v. Nat'l Audubon Soc'y, Inc., 556 F.2d 113, 120 (2d Cir. 1977) (rejecting plaintiffs' argument that obtaining some information from plaintiffs but not conducting fuller investigation was evidence of actual malice);New York Times Co. v. Connor, 365 F.2d 567, 576 (5th Cir. 1966) ("Although accuracy and objectivity in reporting are goals for which all responsible news media strive, the protection of the first amendment is not limited to statements whose validity are beyond question or which reflect an objective picture of the reported events. While verification of the facts remains an important reporting standard, a reporter, without a `high degree of awareness of their probable falsity,' may rely on statements made by a single source even though they reflect only one side of the story without fear of libel prosecution by a public official."); Hardin v. Santa Fe Reporter, Inc., 745 F.2d 1323, 1324 (1984) (investigatory failures are insufficient to satisfy the malice requirement).
Brecht also argues that Carlson and Schram acted with reckless disregard by ignoring potentially exculpatory language from Brecht's complaint for defamation against Hague, filed the day before the show aired. He further argues that Carlson and Schram were on notice that he contested the statements in the mailer because the Seattle Post Intelligencer ran a story covering his defamation lawsuit against Hague the morning of the show. This argument is insufficient to defeat summary judgment.
First, as discussed above, failure to investigate is generally insufficient for a court to find actual malice. Second, knowledge that Brecht had filed a defamation lawsuit against Hauge claiming that the statements in the campaign mailer were false is also not sufficient to show actual malice. Mere knowledge of a public figure's denial does not demonstrate "actual malice."
See Harte-Hanks Comm'n v. Connaughton, 491 U.S. 657, 692 n. 37, 109 S. Ct. 2678, 105 L. Ed. 2d 562 (1989) ("Of course, the press need not accept `denials, however vehement; such denials are so commonplace in the world of polemical charge and countercharge that, in themselves, they hardly alert the conscientious reporter to the likelihood of error.'").
Brecht also argues that Carlson and Schram's knowledge of his prior name change is probative evidence of actual malice. He appears to argue that because they must have found out about his name change from court records, they must also have known other details about his past that are included in court records, including potentially exculpatory facts. But Brecht offers no evidence of how Carlson or Schram knew of his name change. And he offers no logical reason that knowledge of his name change also meant that Carlson and Schram knew that the allegedly defamatory statements were false.
Brecht cites Mark v. Seattle Times for the proposition that "`inaccurate and defamatory reports of facts' drawn from judicial proceedings are not deserving of First Amendment protection." But, as explained above, neither Carlson nor Schram ever purported to undertake any investigation into court records to confirm the content of the mailer or otherwise investigate the story. And they were under no obligation to do so.
96 Wn.2d 473, 635 P.2d 1081 (1981).
Id. at 493.
See St. Amant, 390 U.S. at 733;Edwards, 556 F.2d at 120; Connor, 365 F.2d at 576; Hardin, 745 F.2d at 1324.
In sum, Brecht has failed to show actual malice, a necessary element of his defamation claim. This failure makes other factual disputes for the remaining elements of his defamation claim immaterial for summary judgment purposes.
We affirm the summary judgment order of dismissal.
WE CONCUR.