Todd M. Stevens Vs. Iowa Newspapers, Inc., Susan Harman And Erik Brooks ( 2007 )

IN THE SUPREME COURT OF IOWA
No. 78 / 04-0987
Filed March 9, 2007
TODD M. STEVENS,
Appellant,
vs.
IOWA NEWSPAPERS, INC., SUSAN HARMAN and ERIK BROOKS,
Appellees.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Story County, William J.
Pattinson, Judge.
Plaintiff in libel case appeals from summary judgment for defendants.
COURT OF APPEALS DECISION AFFIRMED; DISTRICT COURT
JUDGMENT REVERSED; CASE REMANDED.
Theodore F. Sporer of Sporer & Ilic, P.C., Des Moines, for appellant.
Michael C. Cox of Koley Jessen, P.C., Omaha, Nebraska, for appellees.
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LARSON, Justice.
Todd Stevens brought a libel suit against Iowa Newspapers, Inc., as
owner, and Susan Harman and Erik Brooks, reporter and editor,
respectively, of the Ames Tribune. The district court granted the defendants’
motion for summary judgment, and the plaintiff appealed. The court of
appeals affirmed in part and reversed in part. We granted further review
and now affirm the decision of the court of appeals, reverse the judgment of
the district court, and remand.
I. Facts and Prior Proceedings.
The facts, as produced in the summary judgment record, are
undisputed. In November 1998 Todd Stevens orally agreed with Iowa
Newspapers to provide weekly sports columns to the Tribune to be paid on a
per-column basis. He was not an employee of the newspaper, but was
considered a freelance journalist subject to the Tribune’s editorial policies
and decisions.
In June 2002 Susan Harman, the sports section editor, wrote and
published a column about the resignation of Iowa State University’s
associate athletic director, Elaine Hieber. Stevens disagreed with the tone
of Harman’s article, believing it was too complimentary toward the resigning
employee, and drafted his own column expressing his viewpoint. After
reviewing Stevens’ proffered article, Harman and David Kraemer, the
Tribune’s managing editor, decided the column would not be published
without further discussion with Stevens because of the column’s negative
comments and implications concerning the quality of the newspaper’s
investigation and reporting of the incident.
Stevens redrafted his column, toning down his attack on the
newspaper’s investigation, but Harman and Kraemer still refused to publish
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it. In the meantime, Stevens read his column on the air on a local sports
radio talk program.
Stevens advised Kraemer that he would no longer write for the
Tribune and asked to write a “farewell” column. Kraemer consented, and
the column was published in the Tribune on June 10, 2002, under the
heading “Point Counterpoint—Columnist Opts Out of the Tribune.” Directly
adjacent to Stevens’ column was a response authored by Harman. Three
comments in Harman’s response became the basis of Stevens’ libel action:
(1) That Stevens “in fact rarely attended events upon which he wrote
columns”; (2) that Stevens’ original column on Hieber’s resignation
“contained numerous factual errors and unsubstantiated claims”; and
(3) that Stevens’ redraft of his Hieber resignation column “continued to
include fatal factual errors and near libelous characterizations.”
Stevens sued on a theory of express libel, and the district court found
that Stevens also had possibly pled a theory of defamation by implication.
Even though the district court was not convinced that defamation by
implication existed in Iowa law, it considered that possibility in its ruling.
We begin the discussion of the merits of this appeal by first
determining the plaintiff’s status⎯an important consideration in defamation
cases. For defamation purposes, a person becomes a public figure in two
ways.
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.
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Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S. Ct. 2997, 3013, 41
L. Ed. 2d 789, 812 (1974). Stevens apparently admits, for libel purposes,
that he is a public figure.
Stevens, as a public figure, had the burden to show that a reasonable
jury could find by clear and convincing evidence that (1) the challenged
statements in Harman’s column were false and (2) Harman made the
statements with “actual malice.” See New York Times Co. v. Sullivan, 376
U.S. 254, 279-80, 84 S. Ct. 710, 726, 11 L. Ed. 2d 686, 706 (1964); Carr v.
Bankers Trust Co., 546 N.W.2d 901, 904 (Iowa 1996). The district court
ruled that Stevens failed to meet this test and granted the defendants’
motion for summary judgment.
The court of appeals affirmed the district court’s findings on
statements 2 and 3 (quoted above), reversed on statement 1 (that Stevens
rarely attended the events upon which he wrote columns), and remanded
for trial. The court of appeals, noting a split of authorities on the issue,
concluded Iowa would recognize a claim for defamation by implication.
II. Review of Summary Judgment.
The standard of review for summary judgment cases is well settled.
We review summary judgment motions for correction of errors at law. Carr,
546 N.W.2d at 903. Summary judgment is appropriate only when the entire
record demonstrates that no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. Id. We review the
evidence in the light most favorable to the nonmoving party. Mason v.
Vision Iowa Bd., 700 N.W.2d 349, 353 (Iowa 2005).
A party resisting a motion for summary judgment cannot rely on the
mere assertions in his pleadings but must come forward with evidence to
demonstrate that a genuine issue of fact is presented. The record on
summary judgment includes the pleadings, depositions, affidavits, and
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exhibits presented. Carr, 546 N.W.2d at 903. Unique rules apply in
defamation cases because First Amendment rights are implicated. Id. at
904 (holding that the court “must examine the evidence to determine if a
rational fact finder could conclude that malice had been established by
clear-and-convincing evidence”).
III. Defamation by Implication.
The statements at issue, i.e., that Stevens rarely attended the events
he covered; that his original column contained numerous factual errors and
unsubstantiated claims; and that Stevens’ redraft continued to include
factual errors and “near” libelous characterizations, were all basically true.
It is only when the statements are given the spin that Stevens attributes to
them that they may be considered libelous. This raises the initial question
of whether we recognize defamation by implication. 1
Defamation by implication arises, not from what is stated, but from
what is implied when a defendant
(1) juxtaposes a series of facts so as to imply a defamatory
connection between them, or (2) creates a defamatory
implication by omitting facts, [such that] he may be held
responsible for the defamatory implication, unless it qualifies
as an opinion, even though the particular facts are correct.
Dan B. Dobbs, Prosser & Keeton on the Law of Torts § 116, at 117 (Supp.
1988). Iowa case law has not expressly adopted the principle of defamation
by implication; however, analogous cases suggest that such a cause of
action would be recognized. See, e.g., Huegerich v. IBP, Inc., 547 N.W.2d
216, 221 (Iowa 1996) (“In determining what the third person understands,
the defamatory statement must be viewed in the context of the surrounding
1We reject the defendants’ argument that Stevens may not maintain a suit based on
this theory because he failed to expressly plead it; it is clear under notice pleading that a
specific theory of a claim need not be alleged. See, e.g., Soike v. Evan Matthews & Co., 302
N.W.2d 841, 842 (Iowa 1981).
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circumstances and within the entire communication.”); Haas v. Evening
Democrat Co., 252 Iowa 517, 528, 107 N.W.2d 444, 451 (1961) (“An
innuendo, in the law of slander and libel, is only a word of explanation, an
attempt to give a meaning to what was actually expressed.”); Salinger v.
Des Moines Capital, 206 Iowa 592, 596-97, 217 N.W 555, 557 (1928)
(statement that the decisions of the Iowa Supreme Court were the judgment
of one man was libelous as it was “fairly susceptible of the meaning and
intendment, attributed to it in the innuendo, that plaintiff was violating his
duty as a member of the court”); Kelly v. Iowa State Educ. Ass’n, 372 N.W.2d
288, 295-96 (Iowa Ct. App. 1985) (statement in question implies that the
state educational administrator was not competent; libel action was
permitted based on this implication); see also Restatement (Second) of Torts
§ 563 cmt. c, at 163 (1965) (“The defamatory imputation may be made by
innuendo, by figure of speech, by expressions of belief, by allusion or by
irony or satire.”).
We now expressly adopt the principle of defamation by implication.
Otherwise, by a careful choice of words in juxtaposition of statements in a
publication, a potential defendant may make statements that are true yet
just as damaging as if they were actually false. Whether we adopt the
theory of implied defamation in suits against public officials or public
figures such as Stevens, however, presents a closer question. As the
Supreme Court has observed, “elected public official[s] . . . traditionally
have been subject to special rules of libel law.” Curtis Publ’g Co. v. Butts,
388 U.S. 130, 144, 87 S. Ct. 1975, 1986, 18 L. Ed. 2d 1094, 1105 (1967).
In fact, some courts have been reluctant to permit an action for defamation
by implication in public-figure or public-official cases. See, e.g., Price v.
Viking Penguin, Inc., 881 F.2d 1426, 1432 (8th Cir. 1989), cert. denied, 493
U.S. 1036, reh’g denied, 494 U.S. 1013 (1990) (suit for implied defamation
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by FBI agent; court refused to recognize such suits); Diesen v. Hessburg,
455 N.W.2d 446, 452 (Minn. 1990) (“[W]e hold an allegedly false implication
arising out of true statements is generally not actionable in defamation by a
public official . . . .”); De Falco v. Anderson, 506 A.2d 1280, 1284 (N.J. 1986)
(There can be no libel by innuendo by public figures when the facts in the
challenged communication are true.); see also 16B C.J.S. Constitutional Law
§ 876, at 170 (2005) (“As a general rule, all truthful statements concerning
public officials are constitutionally protected even if a false implication may
be drawn by the public, the defense of truth as against a charge of
defamation being constitutionally required.” (Footnotes omitted.)); Robert
D. Sack, Libel, Slander, and Related Problems § 5.5.1, at 5064 (3d ed. 1999)
(“[I]mplication perceived in a statement but not intended by the speaker
cannot be actionable in public official or public figure cases.”).
Some jurisdictions, on the other hand, have not hesitated in holding
that defamation by implication is a permissible claim for public figure
plaintiffs. See, e.g., Toney v. WCCO Tel., 85 F.3d 383, 393 (8th Cir.), cert.
denied, 479 U.S. 883 (1986) (concluding that Minnesota would recognize
defamation by implication); Chapin v. Knight-Ridder, Inc., 993 F.2d 1087,
1092-93 (4th Cir. 1993) (plaintiff was a public figure, yet the court noted
that defamatory meaning may be communicated by direct reference or by
implication); Saenz v. Playboy Enter., Inc., 841 F.2d 1309, 1314 (7th Cir.
1988) (concluding that nothing in Supreme Court cases justifies denying a
public official a cause of action premised on defamatory innuendo); Thomas
v. Los Angeles Times Commc’ns, LLC, 189 F. Supp. 2d 1005, 1012 (C.D. Cal.
2002), aff’d, 30 Media L. Rep. 2438 (9th Cir. 2002), cert. denied, 537 U.S.
1172 (2003) (court noted that neither California nor the ninth circuit had
ever held that being a public figure is a bar to a defamation by implication
claim).
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As one writer has noted,
[d]isallowing defamation by implication ignores the reality of
human discourse. Communication, rarely composed of
transparent assertions, is a nexus of suggestions, cues,
allusions, presumptions and intimations. What speech leaves
unsaid is often more potent than what it makes explicit: “it is
the thought conveyed, not the words, that does the harm.”
Nicole Alexandra LaBarbera, The Art of Insinuation: Defamation by
Implication, 58 Fordham L. Rev. 677, 701 (1990) [hereafter LaBarbera]
(quoting Turner v. Brien, 184 Iowa 320, 326, 167 N.W. 584, 586 (1918)).
Further, as LaBarbera notes, denying a public figure the right of redress in
the face of implied defamation is unfair.
Precluding a plaintiff from recovering for defamation that
is cleverly couched in implication is inequitable. It rewards a
defendant for having the foresight or literary facility to secrete a
“classic and coolly-crafted libel” in the overtones of a facially
neutral statement. It may provide a loophole through which
media defendants can escape liability for “high-profile”
defamatory stories by insinuating what they may not state.
Id. The seventh circuit has stated:
[W]e believe that an official should not be allowed to transform
governmental criticism into personal defamation where none
exists. We also do not believe, however, that a publisher may,
without impediment of law, trammel a public official by
“surreptitious and insidious implication” under the pretense of
governmental critique. To deny a public official the
opportunity to demonstrate the defamatory innuendo of a
publication, even one critical of governmental conduct, is to
open Pandora’s Box from which countless evils may spring. A
legal fiction denying the existence of clearly discernable,
though not explicit charges, exposes public officials to baseless
accusations and public mistrust while promoting an
undisciplined brand of journalism both unproductive to society
and, as we see it, unprotected by constitutional considerations.
Saenz, 841 F.2d at 1317. Also,
[s]uch a draconian approach [denying cause of action for
defamation by implication] would invite a publisher who
deliberately seeks to harm the reputation of a public person to
manipulate statements purposefully or to omit critical facts
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with the design of implying a false, defamatory meaning. A
literal and accurate report of specific facts could be used to
destroy reputation deliberately. In other words, a form of
calculated falsehood would be placed beyond the reach of the
law of defamation.
C. Thomas Dienes & Lee Levine, Implied Libel, Defamatory Meaning, and
State of Mind: The Promise of New York Times Co. v. Sullivan, 78 Iowa L.
Rev. 237, 308 (1993).
We conclude that, despite Stevens’ status as a public figure, he may
maintain a suit based on alleged defamation by implication. Whether he
has sustained his burden of showing a genuine issue of material fact, for
summary judgment purposes, remains at issue.
IV. The Merits of the Plaintiff’s Claim.
We noted in Carr that New York Times Co. v. Sullivan “significantly
restricted the power of courts to grant damage awards in defamation cases
brought by public officials.” Carr, 546 N.W.2d at 903-04. As the Supreme
Court said in New York Times:
The constitutional guarantees require, we think, a federal
rule that prohibits a public official from recovering damages for
a defamatory falsehood relating to his official conduct unless
he proves that the statement was made with “actual malice”—
that is, with knowledge that it was false or with reckless
disregard of whether it was false or not.
376 U.S. at 279-80, 84 S. Ct. at 726, 11 L. Ed. 2d at 706. Malice must be
shown with “convincing clarity” or clear and convincing evidence. Id. at
285-86, 84 S. Ct. at 728-29, 11 L. Ed. 2d at 710. (While New York Times
involved a public official, its holding has been extended to cover public-
figure plaintiffs as well. Curtis Publ’g Co., 388 U.S. at 155, 87 S. Ct. at
1992, 18 L. Ed. 2d at 1111).
Under New York Times a plaintiff’s proof that the statement in
question is false is insufficient to establish defamation. In addition to
showing falsity, a plaintiff must show actual malice, i.e., the statement was
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made with knowledge that it was false or with reckless disregard as to
whether it was true or false. Carr, 546 N.W.2d at 904. Reckless disregard
means a “high degree of awareness of their probable falsity.” Garrison v.
Louisiana, 379 U.S. 64, 74, 85 S. Ct. 209, 216, 13 L. Ed. 2d 125, 134
(1964).
The New York Times analysis requires a plaintiff resisting a motion for
summary judgment to do more than show a genuine issue of material fact;
he must produce evidence from which a fact finder could reasonably find
malice by clear and convincing evidence. As the Court stated in Anderson v.
Liberty Lobby, Inc.,
where the New York Times “clear and convincing” evidence
requirement applies, the trial judge’s summary judgment
inquiry as to whether a genuine issue exists will be whether the
evidence presented is such that a jury applying that evidentiary
standard could reasonably find for either the plaintiff or the
defendant. Thus, where the factual dispute concerns actual
malice, clearly a material issue in a New York Times case, the
appropriate summary judgment question will be whether the
evidence in the record could support a reasonable jury finding
either that the plaintiff has shown actual malice by clear and
convincing evidence or that the plaintiff has not.
477 U.S. 242, 255-56, 106 S. Ct. 2505, 2514, 91 L. Ed. 2d 202, 216 (1986).
It is for the court to determine whether the defendants’ words were
capable of a defamatory meaning and for the jury to determine whether they
actually had that effect on the reader. According to the Restatement,
(1) The court determines
(a) whether a communication is capable of bearing a
particular meaning, and
(b) whether that meaning is defamatory.
(2) The jury determines whether a communication, capable of
a defamatory meaning, was so understood by its recipient.
Restatement (Second) of Torts § 614, at 311 (1965).
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The burden of showing that a communication is defamatory in
character is substantial. The Supreme Court has stated:
A “reckless disregard” for the truth [under the New York Times]
requires more than a departure from reasonably prudent
conduct. “There must be sufficient evidence to permit the
conclusion that the defendant in fact entertained serious
doubts as to the truth of his publication.” The standard is a
subjective one—there must be sufficient evidence to permit the
conclusion that the defendant actually had a “high degree of
awareness of . . . probable falsity.” As a result, failure to
investigate before publishing, even when a reasonably prudent
person would have done so, is not sufficient to establish
reckless disregard.
Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 688, 109 S. Ct.
2678, 2696, 105 L. Ed. 2d 562, 589 (1989) (citations omitted). “Actual
malice” under the New York Times’ analysis is not satisfied merely through
a showing of ill will or “ ‘malice’ in the ordinary sense of the term.” Id. at
666, 109 S. Ct. at 2685, 105 L. Ed. 2d at 576.
V. Application of Legal Principles.
Keeping in mind the principles just discussed, we review the plaintiff’s
allegations of libel as supported by his resistance to the summary judgment
motion.
A. The defendant’s statements regarding Stevens’ failure to attend
events. Stevens claims that Harman defamed him by writing that Stevens
“rarely attended events upon which he wrote columns.” This was literally
true; Stevens admitted he attended only approximately eighteen percent of
the events about which he expressed opinions. However, as defendant
Harman admitted in her deposition, personal attendance at sporting events
is not required by professional standards for a sports opinion, as opposed to
a news story. Stevens contends that the statement about his lack of
personal attendance implied that he fabricated the columns he wrote. Such
a suggestion, he claims, is tantamount to stating that he was untruthful.
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As we have noted, the initial decision as to whether a statement is
capable of bearing a defamatory meaning is for the court to decide, and the
jury determines whether a communication, if capable of a defamatory
meaning, was so understood by the reader. In determining whether a
genuine issue of fact is generated on the question of malice or reckless
disregard for the truth under the New York Times standard,
the appropriate summary judgment question will be whether
the evidence in the record could support a reasonable jury
finding either that the plaintiff has shown actual malice by
clear and convincing evidence or that the plaintiff has not.
Anderson, 477 U.S. at 255-56, 106 S. Ct. at 2514, 91 L. Ed. 2d at 216.
The article stated that Stevens rarely attended events about which he
wrote, without revealing to the reader what defendant Harman knew—that
personal attendance was not required by professional standards. As the
Supreme Court said in Harte-Hanks, “[a]lthough failure to investigate will
not alone support a finding of actual malice, the purposeful avoidance of the
truth is in a different category.” 491 U.S. at 692, 109 S. Ct. at 2698, 105
L. Ed. 2d at 591 (citation omitted). When the evidence in the summary
judgment record is viewed in the light most favorable to the resisting party,
we conclude that a reasonable jury could find by clear and convincing
evidence that this statement was false in its implication and was made with
reckless disregard for the truth under the New York Times standard. We
therefore affirm the court of appeals and reverse the district court on this
issue.
B. Other statements by the defendants. The defendants’ column also
stated that Stevens’ article contained “numerous factual errors” and
contained “near libelous characterizations.” Harman’s statement that
Stevens’ article contained numerous factual errors was based in part on
Stevens’ statement that the athletic director, Max Urick, had not hired
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Elaine Hieber. However, deposition testimony, including testimony from
Urick himself, uniformly showed that Urick had, in fact, hired Hieber. This
statement by Harman in her article (that Stevens’ account of the issue was
factually incorrect) was true. Another “factual error” to which the Harman
article referred was Stevens’ suggestion that key coaches at Iowa State had
not been contacted regarding the Hieber matter. The undisputed evidence
was that this was not true; Harman had indeed sought comment, though
unsuccessfully, from one of them. Again, the defendants’ observation that
Stevens’ column contained factual errors was true.
Because there were, in fact, factual errors in the Stevens article, the
Tribune statements to that effect were accurate. Further, there was no
evidence that even impliedly suggested that facts were withheld in the
Tribune article (as in the Tribune’s statement about Stevens not attending
events about which he wrote) that could make the “factual errors” statement
libelous.
The Tribune article also characterized Stevens’ statements as “near
libelous characterizations.” We agree with the district court and the court
of appeals that the “near libelous” statement is so nebulous it is incapable,
as a matter of law, of bearing a defamatory meaning. We therefore affirm on
that issue. We affirm the court of appeals and reverse the district court as
to its ruling on statement 1, and remand for trial on that issue.
COURT OF APPEALS DECISION AFFIRMED; DISTRICT COURT
JUDGMENT REVERSED; CASE REMANDED.
All justices concur except Hecht and Appel, JJ., who take no part.