Opinion
No. 5-732 / 04-0987
Filed January 19, 2006
Appeal from the Iowa District Court for Story County, William J. Pattinson, Judge.
Todd Stevens appeals from the order granting summary judgment and dismissing his defamation action against the owner of a newspaper and the newspaper's sports editor. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Theodore F. Sporer of Sporer Ilic, P.C., Des Moines, for appellant.
Michael Cox and Elizabeth M. Callaghan of Koley Jessen, P.C., Omaha, for appellee.
Heard by Huitink, P.J., and Mahan and Hecht, JJ.
Todd Stevens appeals from the order granting summary judgment and dismissing his defamation action against Iowa Newspapers, Inc., the owner of a newspaper for which he formerly provided freelance writing, and its sports editor, Susan Harman. We affirm in part, reverse in part, and remand.
I. Background Facts and Proceedings.
In 1998 Stevens and Iowa Newspapers, Inc. came to an agreement whereby Stevens would provide the Ames Tribune with two sports-related columns per week. The parties agreed he would be considered a freelance journalist, although still subject to Iowa Newspapers's editorial policies and decisions, and not an employee of the newspaper.
In June of 2002, Harman wrote a column about the resignation of Elaine Hieber from her position as Iowa State University's associate athletic director. Stevens disagreed with the tone of Harman's article, finding it too complimentary toward Hieber, and drafted a column containing his contrary view. Stevens's article asserted that Hieber had hired a previous women's basketball coach, Theresa Becker, producing disastrous results, and questioned why Harman's article had not included comments from several of the university's male coaches.
After reviewing Stevens's submission, Harman conferred with the paper's managing editor, Dave Kraemer, and decided the column would not be published. Upon learning that his column had been rejected, Stevens contacted Kraemer who informed Stevens that he and Harman were concerned that his column questioned the quality of the paper's investigation and reporting on the Hieber resignation. (Harman and Kraemer also believed that Max Urick, a former Iowa State athletic director, had hired Becker, not Hieber.)
Stevens later attempted to redraft the column after learning Harman had unsuccessfully attempted to receive comment from women's basketball coach Bill Fennelly. However, to a large degree the column remained unchanged. Still, Harman and Kraemer refused to publish the column, and in the meantime, Stevens read the rejected column on the air during a local sport radio program. Dissatisfied with the newspaper's refusal to run the column, Stevens informed Kraemer he would no longer write for the Ames Tribune and asked whether the newspaper would publish a "farewell" column. Kraemer agreed to publish Stevens's farewell column, but decided that Harman would also write a column outlining the newspaper's position and that it would be presented in a "point-counterpoint" fashion.
In his farewell column, Stevens claimed he had been censored and that his First Amendment rights had been abridged. Harman's response made the following assertions: (1) Stevens rarely attended the events upon which he wrote columns; (2) Stevens's rejected column "contained numerous factual errors and unsubstantiated claims"; and (3) Stevens's redraft of that column "continued to include fatal factual errors and near libelous characterizations. . . ."
In August of 2002, Stevens filed a petition claiming Iowa Newspapers and Harman defamed him in Harman's column. The petition alleged the three representations from Harman's column, which are noted above, constituted defamation in that they impugned his public credibility and damaged his professional reputation. Iowa Newspapers and Harman later moved for summary judgment.
Following a hearing, the district court granted the summary judgment motion and dismissed Stevens's action. The court concluded (1) Stevens was a "limited public figure," thus requiring Stevens to establish "actual malice"; (2) Harman's statements were either true, not calculated falsehoods, or protected opinion; and (3) Stevens failed to generate a fact question on his "defamatory implication" claim. Stevens appeals.
II. Scope of Review.
Our review of a grant or denial of summary judgment is at law. Iowa R. App. P. 6.4.
III. Summary Judgment Standards in a Defamation Case.
Generally speaking, summary judgment is appropriate only when the entire record including pleadings, discovery, and affidavits on file shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Iowa R. Civ. P. 1 .981(3). A "genuine" issue of material fact exists if a reasonable jury could return a verdict for the nonmoving party based on the evidence. Fees v. Mutual Fire Auto. Ins. Co., 490 N.W.2d 55, 57 (Iowa 1992). A fact is "material" only if its determination might affect the outcome of the case. Baratta v. Polk County Health Servs., 588 N.W.2d 107, 109 (Iowa 1999). When reviewing the grant or denial of a motion for summary judgment, we examine the evidence in a light most favorable to the nonmoving party. Mewes v. State Farm Auto. Ins. Co., 530 N.W.2d 718, 721 (Iowa 1995). We must determine if "reasonable minds would differ on how the issue should be resolved." Fettkether v. City of Readlyn, 595 N.W.2d 807, 813 (Iowa Ct.App. 1999).
Summary judgment is afforded a unique role in defamation cases, however, and a more stringent test applies to avoid summary judgment here. See Carr v. Banker's Trust Co., 546 N.W.2d 901, 905 (Iowa 1996). "Because of courts' solicitude for First Amendment rights, the role of summary judgment in defamation cases is rather unique: the court must examine the evidence to determine if a rational fact finder could conclude that malice has been established by clear-and-convincing evidence." Id. (emphasis added) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202, 215-216 (1986)).
IV. Defamation.
The gist of an action for libel is the publication of written statements which tend to injure a person's reputation and good name. Lara v. Thomas, 512 N.W.2d 777, 785 (Iowa 1994). A libel "per se" occurs when a defamatory statement implicates one's incompetence in his or her profession. Barreca v. Nickolas, 683 N.W.2d 111, 116 (Iowa 2004); see also Lara v. Thomas, 512 N.W.2d 777, 785 (Iowa 1994) (recognizing "[s]landerous imputations affecting a person in his or her business, trade, profession, or office" as slander per se).
The district court found, and the parties apparently agree, that Stevens is a "limited public official" and that he must therefore prove the defamatory statement was published with "actual malice." In Barreca, our supreme court abandoned the old common law "improper purpose" definition of actual malice in favor of the New York Times test, see New York Times v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 726, 11 L. Ed. 2d 686, 706 (1964), which focuses upon whether the defendant published the statement with a knowing or reckless disregard of its truth. Barreca, 683 N.W.2d at 123.
[R]eckless conduct is not measured by whether a reasonably prudent person 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. . . . [T]he actual malice standard require[s] a high degree of awareness of . . . probable falsity.
Caveman Adventures UN, Ltd. v. Press-Citizen Co., Inc. 633 N.W.2d 757, 762 (Iowa 2001) (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323, 1325, 20 L. Ed. 2d 262, 267 (1968) and Garrison v. Louisiana, 379 U.S. 64, 74, 85 S. Ct. 209, 216, 13 L. Ed. 2d 125, 135 (1964)). "[T]o avoid a `chilling effect' on the exercise of First Amendment rights, the media must be allowed `breathing space.'" Behr v. Meredith Corp., 414 N.W.2d 339, 344 (Iowa 1987) (citing Hopkins v. Keith, 348 So.2d 999, 1002 (La.Ct.App. 1979)).
V. Merits
As noted, Stevens claims he was defamed by the following statements published by Harman and Iowa Newspapers: (1) that he "in fact, rarely attended events upon which he wrote columns"; (2) that his revised unpublished column "contained numerous factual errors and unsubstantiated claims"; and (3) that his revised column "continued to include fatal factual errors and near libelous characterizations." As to these statements, the district court analyzed them as a "direct defamation as opposed to implied defamation" and concluded that a reasonable jury could not find clear and convincing evidence in the summary judgment record tending to prove that Harman and Iowa Newspapers made the statements knowing them to be false or while entertaining serious doubts as to their accuracy. The court further assumed without deciding that "defamation by implication" is actionable in Iowa, but concluded Stevens failed to meet "his constitutional burden to establish actual malice." We will address each allegedly defamatory statement in turn.
A. "Rarely attended events."
With respect to this statement, the district court concluded "the Court does not believe that a reasonable jury could find, by clear and convincing evidence, that this particular statement was untrue or that Ms. Harman published the same knowing it to be untrue or with serious doubts as to its accuracy." In his deposition, Stevens admitted that he attended only eighteen percent of the over 300 events of which he wrote. Accordingly, the district court found Harman's statement was substantially true and, thus, not directly defamatory. See Hovey v. Iowa State Daily Publ'n Bd., Inc., 372 N.W.2d 253, 256 (Iowa 1985) ("[I]f an allegedly defamatory statement is substantially true, it provides an absolute defense to an action for defamation."). We agree with the district court's conclusion that Harman's statement was literally true and therefore not "directly defamatory."
The district court first addressed the question of whether the literal or direct meaning of the statement was capable of defamatory meaning. The court characterized this inquiry as a determination of whether Harman's statements were directly defamatory.
However, Stevens asserts that, although literally true, Harman's statement also carried an underlying implication that was defamatory. In particular, Stevens contends the assertion that "he rarely attended events on which he wrote columns," when read in context with the rest of Harman's article, implied that he fabricated the information upon which his columns were based, that he was lazy, or that he was an "incompetent and hence incredible writer." Harman denied that she intended to communicate such an implied meaning, and specifically referenced two of Stevens's columns which she claimed were characterized by certain factual inaccuracies that would have been discovered by the author if he had had done more "legwork." As noted above, at this summary judgment stage we must view the record in the light most favorable to Stevens.
The district court essentially assumed without deciding that defamation by implication is actionable in Iowa, but found no clear and convincing evidence tending to prove that Harman published the statement with actual malice. Some jurisdictions have specifically recognized the tort of defamation by implication, while others have rejected it. See Hawkins v. Mercy Health Services, Inc., 583 N.W.2d 725, 732 (Mich.Ct.App. 1998) (recognizing a claim for defamation by implication in Michigan, albeit with "severe constitutional hurdles"); but see Price v. Viking Penguin, Inc., 881 F.2d 1426, 1432 (8th Cir. 1989) ("We do not recognize defamation by implication."); cf. Pietrofeso v. D.P.I., Inc., 757 P.2d 1113, 1115-16 (Colo.Ct.App. 1988) (holding "there can be no libel by innuendo if the challenged communication is true and concerns public officers and public affairs even though a false impression may reasonably be drawn by the public").
Stevens contends "defamation by implication" occurs when a published statement, although literally true, carries an underlying implication that is false and defamatory.
Because we are not convinced that statements bearing a false implication are more worthy of legal protection than those capable of direct or literal defamatory meaning, we conclude Stevens's claim does not fail as a matter of law because it was literally true and not "directly defamatory." Iowa case law has long directed courts to look at the totality of the circumstances to determine whether an allegedly libelous statement is actionable. See Jones v. Palmer Commc'n, Inc. 440 N.W.2d 884, 891 (Iowa 1989) (overruled on other grounds). Further, our supreme court has stated that whether a publication is understood as defamatory "must be determined by giving to the subject-matter thereof, as a whole, that meaning which naturally belongs to the language used." Sheibley v. Ashton, 130 Iowa 195, 198, 106 N.W. 618, 619 (1906). It is for the court to determine whether the defendant's words were capable of a defamatory meaning, and for the jury to determine whether they had a defamatory meaning in the case before the court. Brown v. First Nat'l Bank, 193 N.W.2d 547, 552 (Iowa 1972). These undertakings can be accomplished whether the defamatory meaning is directly or indirectly communicated.
Other courts have similarly concluded defamation is actionable whether accomplished directly or by implication. See Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1092-93 (4th Cir. 1993) (concluding defamatory meaning may be communicated by direct reference or by implication); Thomas v. Los Angeles Times Commc'ns, L.L.C., 189 F.Supp.2d 1005, 1013 (C.D. Cal. 2002); Howard v. Antilla I, 191 F.R.D. 39, 44 (D.N.H. 1999) (recognizing that claim for libel by implication focuses "not on the explicit statements but rather on the implicit underlying defamatory inference, which may be a malicious calculated falsehood. . . ."); MacLeod v. Tribune Publishing, Co., 343 P.2d 36, 43 (Cal. 1959) (noting that "[T]o constitute a libel it is not necessary that there be a direct and specific allegation of improper conduct . . . The charge may be either expressly stated or implied. . . ."); Carwile v. Richmond Newspapers, 82 S.E.2d 588, 592 (Va. 1954) (same).
Our survey of authorities from other jurisdictions convinces us that claims asserting implied defamation are appropriately adjudicated under the well-established principles of defamation law. We reject the defendants' claim that Stevens's failure to specifically plead such an implied defamation claim is fatal. Therefore, we believe that here, Stevens must establish the allegedly defamatory statement was capable of communicating a defamatory implication and that it was materially false in its implication. See Hawkins, 583 N.W.2d at 732. Keeping these principles in mind, we look to the facts presented in the summary judgment record to determine whether Stevens has met his burden on these questions at the summary judgment stage.
As we have already noted, when asked why she published the assertion that Stevens rarely attended events about which he wrote, Harman claimed she intended to convey the notion that Stevens "very often would not do the legwork to support the columns, whether it be attending events or making the necessary phone calls, talking to players, talking to coaches." Although Harman claimed her statement was not intended as a comment on Stevens's credibility, she conceded it was intended to express that "he often offered opinions that did not have a basis in fact or a basis in his research." In addition, Harman admitted personal attendance at the events was not essential for an "opinion" or "issue" columnist like Stevens.
At the summary judgment stage, we must view the evidence in a light most favorable to Stevens. When viewed in such a light, we conclude the inferences and implications of Harman's statement could bear a defamatory meaning. A reasonable person could find that while Harman knew journalistic standards do not require issue columnists to attend the events they write about, her opinion implied the opposite. We also believe a reasonable juror could find Harman intended to convey to readers the message that Stevens was professionally incompetent or otherwise incredible. Such an intended meaning could constitute libel "per se" because it implicates incompetence in Stevens's profession. See Barreca, 683 N.W.2d at 116. Moreover, when viewed in the light most favorable to Stevens, a reasonable fact-finder could find Harman published the statement with a knowing or reckless disregard for its truth. Id. at 123. Accordingly, we conclude the district court erred in holding that Harman's statement that Stevens "rarely attended events" is not capable of defamatory meaning.
B. "Numerous factual errors."
We now turn to the question of whether Harman's assertion that Stevens's rejected column contained "numerous factual errors" was capable of defamatory meaning. In her deposition, Harman claimed Stevens's column contained multiple errors, including (1) that Elaine Hieber, and not athletic director Max Urick, hired Theresa Becker, and (2) that the paper failed to obtain comments from women's basketball coach Bill Fennelly regarding Hieber's resignation. Harman, who had long written about Iowa State athletics, gave deposition testimony affirming her strong belief that Urick, and not Hieber, hired Becker. Kraemer testified that he trusted Harman's judgment on this matter and consequently believed that Urick had done the hiring. In addition, Max Urick unequivocally and emphatically declared in his deposition the he hired Becker. Urick stated that he personally interviewed Becker and that he made the final hiring decision, not Hieber.
In addition, the first version of Stevens's rejected column questioned "if Hieber is to be remembered fondly as some scribes are insisting, then where are all the glowing comments from ISU's most recognizable coaches — Dan McCarney, Lary Eustachy, Bill Fennelly, and Bobby Douglass." Harman and Kraemer interpreted this statement to imply that the Tribune had not contacted any of these individuals who should have been interviewed. Harman testified such an implication was factually erroneous because she had indeed sought comment from Fennelly, albeit unsuccessfully.
The actual malice standard applied in defamation cases brought by public figures focuses on the defendant's subjective state of mind and asks whether the defendant published the statement with actual knowledge that the statement was false or with reckless disregard for whether the statement was false. See McCarney v. Des Moines Register and Tribune, 239 N.W.2d 152, 155 (Iowa 1976). Here, Harman's belief that Stevens's column contained factual errors is fully supported by Urick's testimony and Harman's unchallenged assertion that she sought Fennelly's reaction to Hieber's departure. Accordingly, we concur in the district court's conclusion that a reasonable juror could not view the evidence on this issue to clearly and convincingly demonstrate that Harman authored the challenged statement knowing it to be false or strongly suspecting so. Therefore, summary judgment on this statement was proper.
C. Near libelous characterizations.
Harman's counterpoint column claimed Stevens's rejected column contained near libelous characterizations. This characterization was intended by Harman as a response to (1) Stevens's contention that the hiring process of Theresa Becker was a "fiasco which smacked thickly of bias and discrimination," and (2) Stevens's assertion that Hieber had conducted a "Christian witch hunt" at Baylor University.
The record suggests the Baylor incident involved Iowa State University athletic department objections to religious rituals performed by Baylor athletes during intercollegiate athletic events.
We concur in the district court's judgment that this phrase does not contain any provably false assertions as there is simply no way to prove or disprove that something is near libelous. See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777, 106 S. Ct. 1558, 1564, 89 L. Ed. 2d 783, 793 (1986) (holding that the First Amendment requires a plaintiff in a defamation case to bear the burden of proving falsity). Accordingly, we affirm that part of the district court's summary judgment order dismissing Stevens's libel claim based on this statement.
VI. Conclusion.
A reasonable juror could find that, because Harman knew attendance at events was not an essential duty of issue or opinion columnists, her statement that Stevens rarely attended events about which he wrote was intended to convey the implied message that Stevens violated professional standards, fabricated information presented in his columns, or was lazy and shiftless. It is undisputed that the implied message was directed by Harman against Stevens in his professional capacity as a journalist. The message is capable of defamatory meaning. We therefore reverse the district court's ruling in part and remand for further proceedings consistent with our opinion. We affirm in all other respects. Costs are assessed equally.