Pipkin v. Acumen , 2020 UT App 111 ( 2020 )

2020 UT App 111THE UTAH COURT OF APPEALS
LYNDA PIPKIN, JANICE LEGLER, BENJAMIN THOMPSON, ROBERT
MCENTEE, ELIZABETH CARLIN, ARTURO MORALES LLAN,
AND PAUL COZZENS,
Appellants,
v.
DARYL ACUMEN,
Appellee.
Opinion
No. 20190378-CA
Filed July 30, 2020
Second District Court, Farmington Department
The Honorable David M. Connors
No. 180700948
Seth D. Needs, Attorney for Appellants
Todd D. Weiler, Attorney for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS
concurred.
ORME, Judge:
¶1 During the period relevant to this lawsuit, Lynda Pipkin,
Janice Legler, Benjamin Thompson, Robert McEntee, Elizabeth
Carlin, Arturo Morales Llan, and Paul Cozzens (collectively,
Plaintiffs) were members or former members of the State Central
Committee (SCC), the governing body of the Utah Republican
Party (URP). After the SCC adopted a controversial bylaw, Daryl
Acumen, who strongly opposed it, sent emails to URP members
and posted on social media challenging the bylaw and
suggesting its illegality. In these communications, Acumen also
alleged that Plaintiffs either supported the bylaw or voted in its
Pipkin v. Acumen
favor. Plaintiffs filed a complaint against Acumen claiming,
among other things, defamation and electronic communications
harassment. The district court granted summary judgment in
Acumen’s favor on all their claims, and we affirm.
BACKGROUND 1
¶2 This case takes place within the larger context of the
controversy surrounding the creation of a signature path to the
Republican primary ballot—a hotly debated issue within the
URP. To make a long story short,2 in 2014 the Legislature passed
SB54 which, when enacted, created a signature-gathering path
for candidates to the primary election ballot as an alternative to
state nominating conventions and prevented any political party
from restricting access to its primary ballot solely to candidates
who won nomination through the convention process. See Utah
Code Ann. § 20A-9-101(12)(c) (LexisNexis 2019) (stating that a
qualified political party must allow members “to seek the
registered political party’s nomination for any elective office by
the member choosing to seek the nomination by either or both
. . . (i) seeking the nomination through the registered political
party’s convention process . . . or (ii) seeking the nomination by
collecting signatures”); Utah Republican Party v. Cox, 2016 UT 17,
¶ 12, 373 P.3d 1286 (per curiam) (concluding that the statute
1. “In reviewing a district court’s grant of summary judgment,
we view the facts and all reasonable inferences drawn therefrom
in the light most favorable to the nonmoving party and recite the
facts accordingly.” Ockey v. Club Jam, 2014 UT App 126, ¶ 2 n.2,
328 P.3d 880 (quotation simplified).
2. For a more detailed summary of the events surrounding this
public debate, see Utah Republican Party v. Cox, 892 F.3d 1066,
1072–75 (10th Cir. 2018).
20190378-CA 2 2020 UT App 111Pipkin v. Acumen
“requires that, to be a [qualified political party], a registered
political party must permit its members to seek access to
nomination for electoral office by either or both the
signature-gathering method or the convention method”).
Although the Legislature was “comprised of overwhelming
Republican majorities in both the State House and State Senate,”
see Utah Republican Party v. Cox, 892 F.3d 1066, 1073 (10th Cir.
2018), the URP opposed this legislation.
¶3 On February 24, 2018, after the URP lost two lawsuits
challenging SB54’s signature provision—and while the appeal
from the second suit was pending before the United States Court
of Appeals for the Tenth Circuit—the SCC adopted the relevant
bylaw (the Bylaw). As the district court stated, “The gist of the
Bylaw was that Republican candidates who chose to seek the
party’s nomination through the signature path allowed by
[SB54] would not be allowed to present themselves on the ballot
as the Republican party’s nominees.” 3 The parties agree that
3. Oddly, the text of the Bylaw does not appear in the record on
appeal. A news article in the record, however, quotes the Bylaw
as stating,
in part, that candidates in the 1st and 2nd
congressional districts “who attempt to qualify for
the primary ballot through any method not
explicitly defined in the Utah Republican Party
Constitution and these bylaws will automatically
forfeit their party membership in conjunction with
the state designated candidate filing-period
deadline.”
See Dennis Romboy, Surprise GOP Bylaw Change Targets
Candidates Who Gather Signatures, Deseret News (Feb. 26,
2018), https://www.deseret.com/2018/2/26/20640616/surprise-gop
-bylaw-change-targets-candidates-who-gather-signatures [https:
//perma.cc/C9DZ-839W].
20190378-CA 3 2020 UT App 111Pipkin v. Acumen
several local media outlets suggested that the Bylaw was
possibly illegal.
¶4 Although no official record was made of the vote, and the
total number of votes in favor of the Bylaw was unclear, the SCC
passed it by a two-thirds majority vote of members who were
present at the meeting called to consider the Bylaw. 4 Plaintiffs
are members or former members of the SCC who purportedly
either voted for or supported the Bylaw. 5
¶5 Acumen, a former SCC member and the chair of the Utah
Black Republican Assembly, vehemently opposed the Bylaw. On
March 5, 2018, he sent an email with the subject “Keep the GOP
on the ballot!” to URP members. With the exception of links to
certain news articles that Acumen included, the email stated as
follows:
An Important Message
Read if you want to keep the GOP on the ballot
Hello [name],
As you may have heard, on February 24th a small
group of delegates to the [SCC] voted to enact a
bylaw that currently threatens to disqualify the
[URP] from the 2018 General Election ballot. The
4. Local media reported that “[a]bout 80 of the committee’s 180
members attended [the February 24, 2018 meeting], but fewer
than that were there to vote on the [Bylaw].” Id.
5. Plaintiffs never expressly acknowledged or denied supporting
or voting in favor of the Bylaw. Instead, they stated that Acumen
“could not have known who voted for the Bylaw because the
votes were not made an official record.”
20190378-CA 4 2020 UT App 111Pipkin v. Acumen
bylaw states that Republican candidates who
choose to seek our party’s nomination through the
signature path allowed by current election law will
be “kicked out” of the Republican Party. Because
the bylaw violates the rules for a “Qualified
Political Party” (QPP) under Utah state law, the
[URP] (along with all our Republican candidates)
will almost certainly be removed from the ballot in
November as a consequence . . . this is not a joke!
The move by a group known as the #GangOf51[6]
was taken during a “special” meeting of the SCC
called with minimal notice in the hope that few
regular committee members would be able to
attend. Davis County Republican Party Secretary
Brady Jugler proposed the bylaw intentionally to
create a legal standoff with the Lt. Governor’s
office and to place the party’s QPP status at risk.
These actions violate the [URP] platform, which
states “We support the ‘Rule of Law’ and believe
in upholding the law of the land.”
Because this stunt flouts current election law, it
constitutes a class B misdemeanor under section
6. Acumen at times referred to the “Gang of 51.” The origin of
the phrase is not entirely clear from the record. In an affidavit,
Acumen asserted that he borrowed the term from local media
coverage and explained that “[t]he ‘51’ comes from the number
of members who called for a special SCC meeting in December
2017.” But in its summary judgment order, the district court
stated that “[b]oth parties acknowledge [that the term] refer[s] to
the majority of SCC members who voted in favor of the Bylaw.”
In any event, Acumen numbered Plaintiffs among the members
of the “Gang of 51.”
20190378-CA 5 2020 UT App 111Pipkin v. Acumen
20A of Utah State Code, punishable by up to six (6)
months in jail and a $1,000 fine.
Because the bylaw initially applies only to the 1st
and 2nd Congressional races (excluding the 3rd and
4th), it violates the 14th Amendment to the United
States Constitution, which requires the equal
application of election laws. The bylaw also
therefore runs afoul of the National Republican
Party Platform which urges us to uphold the
constitution and proclaims that “. . . the
Constitution was written not as a flexible
document, but as our enduring covenant.”
The Utah State Legislature is currently considering
HB485 which would seek to repair the damage by
directing the Lt. Governor’s office to ignore
mid-election bylaw changes by political parties,
however the Utah Democratic Party has already
signaled that it will challenge this guidance in
court and will seek to force the Lt. Governor to
recognize the bylaw as written [and] thus
disqualify every Republican from the ballot in
2018.
The [URP] has three (3) functions:
• Recruit Republicans
• Drive Republicans to the polls
• Elect Republicans
While certain extremists within our party are
under the delusion that the primary focus of our
party should be to fight against a signature path to
the ballot, the vast majority of Republican voters in
20190378-CA 6 2020 UT App 111Pipkin v. Acumen
Utah and every single Republican leader in the
United States disagrees.
By jeopardizing our place on the 2018 ballot, our
SCC representatives have acted illegally,
irresponsibly, recklessly, and against our
interests. They have violated our trust and I believe
they should be held accountable.
If you agree with me, please contact the SCC
members responsible for this action by sending an
email expressing your thoughts and opinions on
the matter to GangOf51@UtahGOP.org.
Alternatively you can simply reply to this email
and your response will be directed to those
responsible.
Thank you for your attention.
The bottom of the email also contained an “Unsubscribe here”
link.
¶6 Two weeks later, on March 19, 2018, Acumen sent out a
similar email with the subject line “Important Information for
Caucus Night.” This email contained a link to a website that
listed the alleged members of the Gang of 51, including
Plaintiffs. Acumen also posted on social media, “If you want to
let the #GangOf51 know how you feel about their illegal activity,
you can email them all . . . . I encourage everyone reading this to
send them a quick note letting them know exactly what you
think!”
¶7 In an affidavit, Acumen stated that he “sent a total of
67,660 emails to party members and only 12,870 of them were
opened[,] . . . generat[ing] about 600 responses that were
20190378-CA 7 2020 UT App 111Pipkin v. Acumen
redirected to Plaintiffs and other members of the ‘Gang of 51.’”
This statement was essentially undisputed by Plaintiffs. 7
¶8 In September 2018, Plaintiffs filed their lawsuit against
Acumen, asserting claims of electronic communications
harassment, defamation, false light, and intentional infliction of
emotional distress (IIED). Acumen moved to dismiss their
complaint. Following oral argument, the district court converted
Acumen’s motion to dismiss into a motion for summary
judgment on the ground that Acumen’s motion and Plaintiffs’
reply memorandum raised “matters outside the pleading.” See
Utah R. Civ. P. 12(b) (“If . . . matters outside the pleading are
presented to and not excluded by the court, the motion shall be
treated as one for summary judgment[.]”).
¶9 After providing the parties with a “reasonable
opportunity to present all material made pertinent to such a
motion,” id., the court granted summary judgment in Acumen’s
favor. The court first addressed Plaintiffs’ electronic
7. Pipkin stated in her affidavit that Acumen’s “actions caused
[her] and the other Plaintiffs to receive hundreds, if not
thousands, of emails over a several day period from individuals
responding to [Acumen’s] . . . emails.” As a result, Pipkin
claimed that their “email systems were overloaded and [they]
were effectively unable to use [their] email or conduct [their]
business as normal.” She also stated that Acumen “ignored
[their] requests to stop with the emails.” The district court,
however, did not credit these statements and noted that “[g]iven
the[] very general responses by [Pipkin to Acumen’s affidavit],
for purposes of its review of the present motion [for summary
judgment,] the Court considers the numbers asserted by . . .
Acumen (67,660 email recipients, 12,870 emails opened, and 600
responses directed to Plaintiffs) to not be subject to genuine
dispute.”
20190378-CA 8 2020 UT App 111Pipkin v. Acumen
communications harassment claim, noting that “[t]he 600
responses that were directed to the Plaintiffs came from their
constituents, not from . . . Acumen.” But “[e]ven if all 600
responses were copied to every member of the Plaintiff group,
which is unclear,” the court “conclude[d], as a matter of law, that
[Acumen’s] action in sending his email to Plaintiffs’ constituents
was not intended to, and did not actually, ‘cause[] disruption,
jamming, or overload of an electronic communication system.’”
See Utah Code Ann. § 76-9-201(2)(d) (LexisNexis 2017).
Furthermore, the court concluded that the subject matter of
Acumen’s email communications “falls squarely within the
statutory exception for communications made for legitimate
business purposes.” See id. § 76-9-201(5)(b).
¶10 Addressing Plaintiffs’ claims for defamation, false light,
and IIED, the court noted that the claims “all rely fundamentally
on Plaintiffs’ assertion that [Acumen] accused Plaintiffs of
committing a crime by voting for the Bylaw.” It concluded that
those claims failed as a matter of law because Acumen “at most
. . . asserted that the SCC action of adopting the contested Bylaw
would be a Class B misdemeanor violation of a law prohibiting
interference with the electoral process,” and he did not “assert
that any individual plaintiff violated any criminal law.” Thus,
although the court “hasten[ed] to indicate that it does not
condone the statements made by [Acumen], particularly the
implication that there may have been something ‘illegal’ going
on,” it dismissed Plaintiffs’ complaint on the ground that
Acumen’s emails and social media post “were not actionable.”
¶11 Plaintiffs appeal.
ISSUES AND STANDARDS OF REVIEW
¶12 Plaintiffs challenge the district court’s grant of summary
judgment in favor of Acumen on their defamation, false light,
20190378-CA 9 2020 UT App 111Pipkin v. Acumen
IIED, and electronic communications harassment claims.
Generally, “we review a trial court’s legal conclusions and
ultimate grant or denial of summary judgment for correctness,
viewing the facts and all reasonable inferences drawn therefrom
in the light most favorable to the nonmoving party,” and we
apply this standard to Plaintiffs’ electronic communications
harassment claim. Heartwood Home Health & Hospice LLC v.
Huber, 2020 UT App 13, ¶ 11, 459 P.3d 1060 (quotation
simplified).
¶13 But “the First Amendment demands a subtle
although significant variation in the treatment of inferences
drawn from undisputed facts” for Plaintiffs’ defamation,
false light, and IIED claims. See Jacob v. Bezzant, 2009 UT 37,
¶ 18, 212 P.3d 535 (quotation simplified). See also id. ¶ 21
(“A false light claim is closely allied with an action for
defamation, and the same considerations apply to each.”)
(quotation simplified); Davidson v. Baird, 2019 UT App 8, ¶ 57,
438 P.3d 928 (“Where an [IIED] claim is based on the same
facts as a claim for defamation, appropriate concern for the
First Amendment rights of the parties must be considered.”)
(quotation simplified). “To accommodate the respect we
accord its protections of speech, the First Amendment’s presence
merits altering our customary rules of review by denying a
nonmoving party the benefit of a favorable interpretation of
factual inferences.” Bezzant, 2009 UT 37, ¶ 18 (quotation
simplified). See Cox v. Hatch, 761 P.2d 556, 561 (Utah 1988)
(stating that the First Amendment favors “disposing of
[defamation] cases on motion and at an early stage when it
appears that a reasonable jury could not find for the plaintiffs”).
Accordingly, whether a challenged statement is susceptible to a
defamatory interpretation is a question of law that we consider
de novo without “indulging inferences in favor of the
nonmoving party.” O’Connor v. Burningham, 2007 UT 58, ¶ 27,
165 P.3d 1214.
20190378-CA 10 2020 UT App 111Pipkin v. Acumen
ANALYSIS
¶14 Summary judgment is appropriate when (1) “there is no
genuine dispute as to any material fact” and (2) “the moving
party is entitled to judgment as a matter of law.” Utah R. Civ. P.
56(a). Because Plaintiffs do not challenge the district court’s
ruling on the first prong,8 we limit our review to whether
Acumen was “entitled to judgment as a matter of law” on each
of Plaintiffs’ claims.
I. Defamation
¶15 “Defamation is the act of harming the reputation of
another by making a false statement to a third person.” 9 Jensen v.
8. Concerning their electronic communications harassment
claim, Plaintiffs assert that there is a factual dispute as to
whether the 600 emails they received overloaded their email
systems. The district court concluded, “as a matter of law,” that
the emails “did not actually ‘cause disruption, jamming, or
overload of an electronic communication system.’” And in any
event, because we conclude that the “legitimate business
purpose” exemption applies to this case, this alleged factual
dispute is immaterial to our resolution of the issue. See infra
section II.
9. Defamation encompasses both libel and slander, which are
distinguished by the manner of an actionable statement’s
publication. Jensen v. Sawyers, 2005 UT 81, ¶ 33 n.6, 130 P.3d 325.
“Slander consists of the publication of defamatory matter by
spoken words, transitory gestures or by any form of
communication other than libel. Libel consists of the publication
of defamatory matter by written or printed words in physical
form or by any other form of communication that has the
potentially harmful qualities characteristic of written or printed
(continued…)
20190378-CA 11 2020 UT App 111Pipkin v. Acumen
Sawyers, 2005 UT 81, ¶ 35, 130 P.3d 325. See West v. Thompson
Newspapers, 872 P.2d 999, 1008 (Utah 1994) (“At its core, an
action for defamation is intended to protect an individual’s
interest in maintaining a good reputation.”). A false statement
harms an individual’s reputation if it “impeaches [the]
individual’s honesty, integrity, virtue, or reputation and thereby
exposes the individual to public hatred, contempt, or ridicule.”
West, 872 P.2d at 1008. But the First Amendment, which “was
fashioned to assure unfettered interchange of ideas for the
bringing about of political and social changes desired by the
people,” New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964)
(quotation simplified), significantly limits the tort, see Jensen,
2005 UT 81, ¶ 50 (“Defamation claims always reside in the
shadow of the First Amendment.”). Over time, the tension
between the First Amendment and laws designed to protect
individual reputation has resulted in the development of “a
considerable assortment of defenses, privileges, heightened
burdens of proof, and particularized standards of review.” Id.¶16 To prevail on a claim of defamation, a plaintiff must show
that “(1) the defendant published the statements [in print or
orally] concerning [the plaintiff]; (2) the statements were false;[10]
(…continued)
words.” Id. (quotation simplified). See also Utah Code Ann.
§ 45-2-2(1)–(2) (LexisNexis 2018) (defining libel as “a malicious
defamation, expressed either by printing or by signs or pictures
or the like,” and slander as “any libel communicated by spoken
words”).
10. Falsity is usually presumed, and truth is an affirmative
defense that the defendant bears the burden of proving to defeat
the claim on this basis. Davidson v. Baird, 2019 UT App 8, ¶ 25
n.3, 438 P.3d 928. “But where the plaintiff is a public figure or the
statement involves a matter of public concern, it is the plaintiff
(continued…)
20190378-CA 12 2020 UT App 111Pipkin v. Acumen
(3) the statements were not subject to privilege; (4) the
statements were published with the requisite degree of fault; and
(5) the statements resulted in damages.” DeBry v. Godbe, 1999 UT
111, ¶ 8, 992 P.2d 979. See West, 872 P.2d at 1007–08. But before
the matter may proceed to the trier of fact, the court must
initially determine whether, as a matter of law, the challenged
statement “is capable of conveying a defamatory message.” Cox
v. Hatch, 761 P.2d 556, 561 (Utah 1988). In making this
determination, a court cannot limit its analysis to isolated words
or sentences. Instead, it “must weigh competing definitions and
make sense of context” without “indulging inferences in favor of
the nonmoving party,” O’Connor v. Burningham, 2007 UT 58,
¶ 27, 165 P.3d 1214, and decide whether the statement tends “to
injure [the plaintiff’s] reputation in the eyes of its audience,”
West, 872 P.2d at 1008.
¶17 Plaintiffs assert, with our emphasis, that Acumen
“accused the Gang of 51 of acting criminally for voting for the
(…continued)
who must shoulder the burden in his case-in-chief of proving the
falsity of the challenged statement.” Id. (quotation simplified).
Here, Plaintiffs contend that they were private figures and not
public officials or public figures. We do not address this
particular issue because the Bylaw, which expressly governed a
political candidate’s ability to be listed on a ballot as a member
of a major political party, is unquestionably a matter of public
concern. Cf. Wayment v. Clear Channel Broad., Inc., 2005 UT 25,
¶ 35, 116 P.3d 271 (“If the issue was being debated publicly and
if it had foreseeable and substantial ramifications for
nonparticipants, it was a public controversy.”) (quotation
simplified). In any event, we assume that the challenged
statements were false and do not base our decision on this
prong. See infra ¶ 17.
20190378-CA 13 2020 UT App 111Pipkin v. Acumen
Bylaw.” 11 In support of this contention, they quote Acumen’s
emails in which he “stated that the Gang of 51’s actions or ‘stunt
flouts current election law, it constitutes a class B misdemeanor
under section 20A of Utah State Code, punishable by up to six
(6) months in jail and a $1,000 fine,’” and that “the ‘SCC
representatives have acted illegally, irresponsibly, recklessly,
and against our interests.’” They also point to a social media post
in which Acumen stated, “If you want to, let the #GangOf51
know how you feel about their illegal activity[.]” We assume,
without deciding, that the challenged statements were false. But
having carefully considered the context in which Acumen sent
the emails and posted on social media, and the statements
contained therein, we conclude that the challenged statements
were not susceptible to defamatory interpretation.
¶18 Acumen’s emails and social media post were
unquestionably political speech, which “enjoys the broadest
protection under the First Amendment.” See Jacob v. Bezzant,
2009 UT 37, ¶ 29, 212 P.3d 535. See also Sullivan, 376 U.S. at270–72 (stating that “debate on public issues should be
uninhibited, robust, and wide-open” and that “erroneous
statement is inevitable in free debate, and . . . it must be
protected if the freedoms of expression are to have the breathing
space that they need to survive”) (quotation simplified). Acumen
published the challenged statements within the larger context of
a hotly debated public issue—the signature path to the primary
ballot. At that time, the URP had initiated and lost two
challenges to SB54’s signature-gathering provision and emotions
11. Plaintiffs argue that although Acumen “did provide a few
news articles that mentioned only the possibility of the Bylaw
being illegal, . . . those articles never once mentioned the
possibility that voting for the Bylaw was criminal or illegal
conduct,” as they contend Acumen had alleged.
20190378-CA 14 2020 UT App 111Pipkin v. Acumen
were undoubtedly high. See Utah Republican Party v. Cox, 892
F.3d 1066, 1073–75 (10th Cir. 2018). And Plaintiffs implicitly
acknowledge that the Bylaw was a well-known issue within
URP circles, stating that even without Acumen’s second email
containing a link to a list of members of the Gang of 51, Plaintiffs
“were [already] widely known throughout the [URP] as
members of the Gang of 51 during the time that [Acumen] sent
his emails.”
¶19 Acumen’s emails critiqued the propriety of the Bylaw
allowing the URP to expel party members who made it onto the
URP primary ballot via the signature-gathering route. Thus,
Acumen’s readers would have been aware that the challenged
statements were a continuation of the signature-path debate.
And given the readers’ understanding that Acumen’s emails and
social media post were part of that heated public debate, they
would have taken them “with a grain of salt,” regarding them
“as exaggerated and polemicized.” See Mast v. Overson, 971 P.2d
928, 932–33 (Utah Ct. App. 1998).
¶20 Additionally, Acumen sent the emails in the familiar
format of a political email, similar to those that political
candidates or parties send attacking their opponents and seeking
contributions. 12 The political nature of the emails was clear from
the subject line of the emails: “Keep the GOP on the ballot!” and
“Important Information for Caucus Night.” The body of the
emails contained large headings set against a backdrop stating,
“An Important Message: Read if you want to keep the GOP on
the ballot,” and “Background Information for Caucus Attendees:
How to protect the Republican Party from Extremists,”
respectively. The liberal use of bold font, inclusion of links to
news articles, and other formatting choices in the emails likewise
12. This may explain why only 12,870 out of 67,660 recipients of
the emails even opened them.
20190378-CA 15 2020 UT App 111Pipkin v. Acumen
alerted their readers to their overtly political nature. Finally, the
bottom of each email contained a link labeled “Unsubscribe
here.” Given the readily apparent political nature of the emails,
readers would expect exaggerated commentary and accusations,
rendering them less likely to take the statements at face value.
See West, 872 P.2d at 1010 (stating that readers expect
exaggerated commentary and criticism of public officials in
editorial articles “and are therefore less likely to rely on [such
articles] in forming their opinions”).
¶21 Taken as a whole, the context of the vigorous debate
concerning the signature path to the ballot and the format of the
challenged statements would have placed readers on notice that
the emails contained exaggerated commentary, rendering it
unlikely that the challenged statements would cause the readers
to “form a personal animus towards” Plaintiffs. See Mast, 971
P.2d at 932.
¶22 Furthermore, we agree with the district court that
Acumen “never accused any individual of committing a crime”
because, with our emphasis, “at most, [Acumen] asserted that the
SCC’s action of adopting the contested Bylaw would be a Class B
misdemeanor violation of a law prohibiting interference with the
electoral process.” The emails stated that “a small group of
delegates to the [SCC],” 13 whom Acumen referred to later in the
emails as the Gang of 51, “voted to enact a bylaw” that “violates
the rules for a ‘Qualified Political Party’ . . . under Utah state
law.” He also stated that “[b]ecause this stunt flouts current
election law, it constitutes a class B misdemeanor under section
20A of Utah State Code, punishable by up to six (6) months in
jail and a $1,000 fine.” But the “stunt” to which Acumen referred
was the SCC’s adoption of the Bylaw, not any member’s individual
13. In his second email, Acumen referred to the Gang of 51 as “a
small group of extremists on the [SCC].”
20190378-CA 16 2020 UT App 111Pipkin v. Acumen
vote in favor thereof. No reasonable reader would understand
the emails to suggest that the mere vote in favor, irrespective of
whether the Bylaw ultimately passed, would constitute a class B
misdemeanor or otherwise be illegal conduct. Rather, at most, it
was the SCC majority’s adoption of the Bylaw that could
potentially be construed as the illegal activity, although it is
more likely that readers would understand the emails to suggest
that the actual enforcement of the Bylaw would be what
allegedly “flout[ed] current election law.”
¶23 Plaintiffs also point out that Acumen asserted that “[b]y
jeopardizing our place on the 2018 ballot, our SCC
representatives have acted illegally, irresponsibly, recklessly,
and against our interests,” and that he authored a social
media post in which he stated, “If you want to, let the
#GangOf51 know how you feel about their illegal activity[.]” As
stated above, however, courts do not limit their analysis to
isolated words or sentences when determining whether a
publication is capable of sustaining a defamatory interpretation.
Acumen stated in his emails that SCC representatives acted
illegally “[b]y jeopardizing our place on the 2018 ballot.” Clearly
then, his readers would not understand the individual act of
voting in favor of the Bylaw to be illegal because this alone
would not have “jeopardiz[ed] [the URP’s] place on the 2018
ballot” if the SCC had ultimately not adopted the Bylaw. Given
the larger context in which Acumen sent the emails and the text
of the emails taken as a whole, these statements cannot be
construed to suggest that any individual vote in favor of the
Bylaw was “illegal.” Rather, at most, the statements were yet
another reference to the SCC majority’s collective adoption of the
Bylaw.
¶24 For the reasons stated above, we conclude that the
challenged statements in Acumen’s emails and social media post
were not susceptible to defamatory interpretation as a matter of
20190378-CA 17 2020 UT App 111Pipkin v. Acumen
law. The district court therefore properly granted summary
judgment in Acumen’s favor on this claim. 14
II. Electronic Communications Harassment
¶25 A person commits electronic communications harassment
if, “with intent to intimidate, abuse, threaten, harass, frighten, or
disrupt the electronic communications of another, the person,”
among other things, “causes disruption, jamming, or overload of
an electronic communication system through excessive message
traffic or other means utilizing an electronic communication
device” or, “after the recipient has requested or informed the
person not to contact the recipient, . . . the person repeatedly or
14. Because Plaintiffs’ false light and IIED claims are also
premised on the assertion that Acumen falsely accused them of
acting illegally by voting in favor of the Bylaw, we likewise
affirm the district court’s grant of summary judgment in
Acumen’s favor on those claims. Concerning the false light
claim, because Acumen at most accused the SCC of acting
illegally in adopting the Bylaw, and because local media outlets
reporting on the Bylaw had already suggested that it was
“possibly illegal,” Plaintiffs cannot establish that Acumen, a
layperson, “knew or recklessly disregarded the falsity of the
publicized matter.” See Jacob v. Bezzant, 2009 UT 37, ¶ 21, 212
P.3d 535.
The same reasoning applies to Plaintiffs’ IIED claim, which
fails because Acumen did not actually engage in the conduct that
Plaintiffs claim. Furthermore, even assuming that Acumen had
accused Plaintiffs of acting criminally by voting in favor of the
Bylaw, such conduct does not, in this robust political context,
“evoke outrage or revulsion” and therefore cannot “reasonably
be regarded as so extreme and outrageous as to permit
recovery.” See Chard v. Chard, 2019 UT App 209, ¶ 57, 456 P.3d
776 (quotation simplified).
20190378-CA 18 2020 UT App 111Pipkin v. Acumen
continuously . . . causes an electronic communication device of
the recipient to ring or to receive other notification of attempted
contact by means of electronic communication.” 15 Utah Code
Ann. § 76-9-201(2)(a), (d) (LexisNexis 2017). The statute also
provides an exemption, stating that it “does not create a civil
cause of action based on electronic communications made for
legitimate business purposes,” id. § 76-9-201(5)(b), but does not
define the key phrase, “legitimate business purposes.”
¶26 Plaintiffs contend that Acumen’s emails to URP members
and social media post do not fall under the business purpose
exemption. Citing Black’s Law Dictionary, they argue that “a
business purpose would involve those actions related to one’s
livelihood or earning a profit.” See Business, Black’s Law
Dictionary 239 (10th ed. 2014) (defining “business” as “[a]
commercial enterprise carried on for profits; a particular
occupation or employment habitually engaged in for livelihood
or gain”). And because Acumen never stated “that he sent his
emails for purposes related to his livelihood or earning of
profit,” Plaintiffs contend that he could not have sent the emails
for a legitimate business purpose. 16 We decline to adopt such a
narrow definition of “legitimate business purposes.”
15. We note that the United States District Court for the District
of Utah recently concluded that the electronic communications
harassment statute—a criminal statute—does not authorize a
private cause of action. See Nunes v. Rushton, 299 F. Supp. 3d
1216, 1237–38 (D. Utah 2018). Utah appellate courts have yet to
address this issue, and because we conclude that the legitimate
business exemption applies to Acumen’s emails and social
media post in any event, we do not reach it here.
16. Plaintiffs also argue that “a legitimate purpose would
generally be described as doing something that is legal and
(continued…)
20190378-CA 19 2020 UT App 111Pipkin v. Acumen
¶27 Even assuming, without deciding, that the 600 emails
URP members sent to Plaintiffs can be attributed to Acumen
under the statute, Plaintiffs’ argument is unavailing because
Acumen’s emails and social media post clearly concerned URP
business—even absent economic implications. Although the
definition of “business,” as Plaintiffs point out, often involves
profit and livelihood, it is not the only definition of the term.
“Business” can likewise be defined as “an activity that someone
is engaged in,” “a person’s concern,” and “work that has to be
done or matters that have to be attended to.” Business, New
Oxford American Dictionary 237 (3d ed. 2010). See Business,
Merriam-Webster Online, https://www.merriam-webster.com/
dictionary/business [https://perma.cc/7PZB-2Q4F] (defining
“business” as a “role [or] function,” “an immediate task or
objective,” and “a particular field of endeavor”).
¶28 Here, the SCC, acting as the representative body of the
URP, adopted the Bylaw—a document typical of business.
Acumen then sent the emails to the SCC’s constituents 17 and
posted on social media discussing what he believed to be the
Bylaw’s harmful implications. This content dealt directly with
the “business” of the SCC and the URP and therefore falls
squarely within the statutory “legitimate business purpose”
exemption. Otherwise, under Plaintiffs’ limited definition, all
leaders of campaigns encouraging constituents to contact their
elected officials to urge them to vote in a certain manner, or to
(…continued)
proper,” which Acumen’s publications could not have been
because they were defamatory. But as discussed in section I,
Acumen’s emails and social media post were not defamatory as
a matter of law, and this argument therefore fails.
17. Generally, SCC members are elected at URP county
conventions.
20190378-CA 20 2020 UT App 111Pipkin v. Acumen
criticize an official’s recent vote, would be subject to liability
under the electronic communications harassment statute. Such
an interpretation of the statute would raise serious constitutional
questions, and we therefore decline to read Plaintiffs’ desired
definition into the statute. See Castro v. Lemus, 2019 UT 71, ¶ 54,
456 P.3d 750 (“Under the canon of constitutional avoidance,
courts may reject one of two plausible constructions of a statute
on the ground that it would raise grave doubts as to the statute’s
constitutionality. . . . In applying the canon of constitutional
avoidance, we presume that the legislature either prefers not to
press the limits of the Constitution in its statutes, or it prefers a
narrowed (and constitutional) version of its statutes to a statute
completely stricken by the courts.”) (quotation simplified).
¶29 For this reason, the district court properly granted
summary judgment in Acumen’s favor on Plaintiffs’ electronic
communications harassment claim.
CONCLUSION
¶30 The district court did not err in granting summary
judgment in favor of Acumen on Plaintiffs’ defamation, false
light, and IIED claims because, given the context and format in
which Acumen sent his emails and made his social media post
and based on an examination of the publications as a whole,
Acumen could not reasonably be said to have accused Plaintiffs
of illegal activity simply for voting in favor of the Bylaw.
Plaintiffs’ claim for electronic communications harassment
likewise fails because Acumen sent the emails and made the
social media post for a legitimate business purpose.
¶31 Affirmed.
20190378-CA 21 2020 UT App 111