Reykdal v. Espinoza ( 2020 )

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
IN CLERK’S OFFICE OCTOBER 22, 2020
SUPREME COURT, STATE OF WASHINGTON
OCTOBER 22, 2020
SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
CHRIS REYKDAL,
Respondent,
NO. 98731-9
v.
EN BANC
MAIA ESPINOZA,
Appellant, Filed: October 22, 2020
KIM WYMAN, Secretary of State,
Nominal Defendant.
STEPHENS, C.J.⸺Incumbent Superintendent of Public Instruction Chris
Reykdal sued to have the Thurston County Superior Court order the removal of one
allegedly defamatory line in the voters’ guide pamphlet from challenger Maia
Espinoza’s candidate statement. The superior court agreed that there was a
substantial likelihood Reykdal could succeed in a defamation suit based on
Espinoza’s statement. Using a supervisory power conferred by RCW
Reykdal v. Espinoza, 98731-9
29A.32.090(3)(b), the superior court ordered the secretary of state to edit out the
offending line. Espinoza sought accelerated direct review, which this court granted.
Because Reykdal is a public figure, he must show “actual malice” to succeed
in a defamation suit. The superior court made no findings regarding actual malice,
and thus granted Reykdal’s request in error. Because there is no likelihood that
Reykdal could succeed in a defamation suit, the superior court erred in its application
of the statute.1
FACTS
The legislature passed a law—by request of Reykdal—requiring every public
school to provide age-appropriate “comprehensive sexual health education” to each
student at all grade levels by the 2022-23 school year. LAWS OF 2020, ch. 188, § 1.
The law tasks the superintendent and the Department of Health with making the
appropriate learning standards and guidelines available to school districts and
teachers on their websites. Id. § 1(3). The law also requires that the superintendent
develop and publish a list of curricula as a resource for schools, teachers, and other
1
Espinoza also argues that the statute is unconstitutional as applied here because
the court’s prior restraint of political speech violates free speech principles. But our
decision rests on the proper application of the statute, and thus there is no need to consider
the constitutionality of the statute at this time. See Tunstall v. Bergeson, 141 Wash. 2d 201,
210, 5 P.3d 691 (2000) (“Where an issue may be resolved on statutory grounds, the court
will avoid deciding the issue on constitutional grounds.”).
-2-
Reykdal v. Espinoza, 98731-9
organizations. Id. § 1(4). Schools are encouraged to review the curricula and choose
a curriculum from the provided list of resources. Id. § 1(6)(a).
Consistent with the law, the superintendent’s website provides a list of sexual
health education resources. One of the resources listed includes a fourth grade
curriculum from Advocates for Youth. See RIGHTS, RESPECT, RESPONSIBILITY:
A K-12 Sexuality Education Curriculum, ADVOCATES FOR YOUTH,
https://3rs.org/3rs-curriculum (3Rs Curriculum). This particular curriculum
includes a handout for parents and guardians that refers users to additional resources,
including the book It’s Perfectly Normal: Changing Bodies, Growing Up, Sex, and
Sexual Health, by Robie H. Harris. The handout referencing the book states, “These
resources all provide important, age-appropriate information about puberty and how
our bodies change during this time. Please review these before sharing with your
child so you feel ready to answer any questions they may have.” 3Rs Curriculum,
4th Grade Lesson 1, Making Sense of Puberty, at 32; Clerk’s Papers (CP) at 96. The
book includes various illustrations of sexual health education material, including two
pages with depictions of a couple having sexual intercourse in different positions.
Espinoza is one of six candidates who entered the 2020 primary for the
superintendent of public instruction position. The secretary of state publishes a
voters’ guide pamphlet for all elections involving statewide offices. RCW
-3-
Reykdal v. Espinoza, 98731-9
29A.32.010. Candidates for the superintendent position may submit a candidate
statement and photograph for publication in the pamphlet. Id. at .031. The
statements may not exceed 200 words. Id. at .121. The published voters’ guide
pamphlets include a disclaimer on every page stating that candidate statements are
printed as submitted and not edited for factual or grammatical accuracy.
Espinoza submitted a candidate statement that includes the sentence, “The
incumbent ignored parents and educators by championing a policy that teaches
sexual positions to 4th graders!” Candidate Statement of Maia Espinoza, Office of
the Secretary of State: 2020 Primary Voters’ Guide (Aug. 2020),
https://voter.votewa.gov/genericvoterguide.aspx?e=865&c=99#/candidates/57367/
70643; see also CP at 20. The secretary of state notified Reykdal of Espinoza’s
candidate statement, and Reykdal filed a petition in Thurston County Superior Court
to bar Espinoza and the secretary of state from publishing this sentence pursuant to
RCW 29A.32.090.2 Reykdal included a declaration stating that while he supported
the new comprehensive sexual health education law, he had never advocated for the
teaching of sexual positions to fourth graders. Espinoza responded, explaining that
2
The secretary of state is only a nominal party in this lawsuit. RCW
29A.32.090(3)(d).
-4-
Reykdal v. Espinoza, 98731-9
her statement was based on the curriculum handout’s reference to two pages in the
It’s Perfectly Normal book.
The court held that the sentence in Espinoza’s candidate statement is untrue,
in part because of its specificity, and that there is a very substantial likelihood that
Reykdal would prevail in a defamation action based on this sentence. The court
granted Reykdal’s petition and ordered the sentence deleted from all voters’ guide
pamphlets. Espinoza sought direct expedited review, which this court granted.
Because of the deadlines for timely publishing the general election voters’ guide
pamphlets, the court considered the matter without oral argument and issued an order
with this decision to follow.
ANALYSIS
At issue here is the application of RCW 29A.32.090. This law allows a person
to petition the court for a judicial determination that a candidate statement “may be
rejected for publication or edited to delete the defamatory statement.” RCW
29A.32.090(3)(a). The court may edit a candidate statement only when “it concludes
that the statement is untrue and that the petitioner has a very substantial likelihood
of prevailing in a defamation action.” Id. at (3)(b).3 Here, the superior court erred
3
The legislature added this defamation requirement to the statute following this
court’s decision in Rickert v. Pub. Disclosure Comm’n, 161 Wash. 2d 843, 168 P.3d 826
(2007). See LAWS OF 2009, ch. 222, § 1.
-5-
Reykdal v. Espinoza, 98731-9
because there is little possibility that a public figure like Reykdal could prevail in a
defamation action against Espinoza. Our review of the statutory language is de novo,
Castro v. Stanwood Sch. Dist. No. 401, 151 Wash. 2d 221, 224, 86 P.3d 1166 (2004),
and review of the trial court’s decision is also de novo as it is the equivalent of a
summary judgment. Troxell v. Rainier Pub. Sch. Dist. No. 307, 154 Wash. 2d 345,
350, 111 P.3d 1173 (2005). In a general defamation claim, the plaintiff must
establish (1) falsity, (2) an unprivileged communication, (3) fault, and (4) damages.
Mohr v. Grant, 153 Wash. 2d 812, 822, 108 P.3d 768 (2005) (plurality opinion). Here,
Reykdal cannot establish either falsity or damages.
I. ESPINOZA’S STATEMENT IS NOT DEMONSTRABLY FALSE
There is no substantial likelihood that Reykdal could meet his burden to
demonstrate that Espinoza’s statement is false. See Mohr, 153 Wash. 2d at 822-23.
Reykdal argues that it is ridiculous to suggest he would support teaching sexual
positions to fourth graders and that the handout is not specifically listed as part of
the teaching curriculum. Neither argument is availing.
Reykdal’s first argument is flawed because he mistakenly assumes the word
“teaches” in the candidate statement means that some form of classroom instruction
by a school teacher is required for the statement to be true. Instead, the handout
encourages parents and guardians to review the materials before sharing them with
-6-
Reykdal v. Espinoza, 98731-9
children to be ready to answer any questions their children may have. Thus, the
handout clearly implies that the parent or guardian reviewing the material should
share it with children after appropriate preparation. This indicates that the 3Rs
Curriculum intends that fourth graders view and learn from the It’s Perfectly Normal
book with their parents or guardians as a supplement to classroom instruction.
Indeed, the handout encourages it. And while the record does not show that Reykdal
personally intended to teach sexual positions to fourth graders, Espinoza’s candidate
statement criticized Reykdal’s policy and its results, not his personal teaching.
Reykdal’s argument that the handout is not part of the curriculum is also
flawed. While it is true that the handout’s book reference is not specifically listed
in the curriculum, this does not break the logical chain of Espinoza’s statement: the
policy requires the superintendent to recommend curricula, the 3Rs Curriculum
includes the informative handout, the handout encourages parents and guardians to
read and share the book with their children, and the book includes depictions of a
couple having intercourse in two different positions. It is unlikely but truthful that
the policy could result in unintentionally exposing fourth graders to depictions of,
and thus “teaching” them, different sexual positions.
Defamation can also occur by implication when “the defendant juxtaposes a
series of facts so as to imply a defamatory connection between them, or creates a
-7-
Reykdal v. Espinoza, 98731-9
defamatory implication by omitting facts.” PROSSER AND KEETON ON THE LAW OF
TORTS § 116, at 117 (W. Page Keeton ed., 5th ed. 1984) (footnote omitted). But
Reykdal does not argue the defamation allegedly caused by Espinoza’s statement is
merely implied—to the contrary, he argues the statement is so obviously defamatory
that it rises to the level of defamation per se. Accordingly, we express no opinion
as to whether Espinoza’s statement carried a defamatory implication.
Because the reference materials included in the 3Rs Curriculum provided on
the superintendent’s website could inform fourth graders of different sexual
positions, Reykdal has failed to meet his threshold burden of proving Espinoza’s
statement is false.
II. REYKDAL HAS NOT DEMONSTRATED THE ACTUAL MALICE REQUIRED TO
SUCCEED IN A DEFAMATION ACTION
Reykdal’s invocation of RCW 29A.32.090 also fails because he is a public
official and therefore less likely to prevail in any defamation action. The First
Amendment to the United States Constitution is more protective of speech criticizing
public officials because such speech is essential to citizens’ ability to thoughtfully
engage in public debate and the democratic process. The public good that arises
from sharp criticism and examination of public officials’ records requires laws and
policies that will not chill such speech. Accordingly, to succeed in any defamation
-8-
Reykdal v. Espinoza, 98731-9
action, a public official must establish something the average defamation plaintiff
need not establish: “actual malice.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-
80, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). As a public official, Reykdal may not
recover 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.” Id. A
“reckless disregard” means either that there was a high degree of awareness of
probable falsity or that the defendant in fact entertained serious doubts about the
truth of the statement. Herron v. KING Broad. Co., 109 Wash. 2d 514, 523, 746 P.2d
295 (1987), adhered to on reh’g, 112 Wash. 2d 762, 776 P.2d 98 (1989).
The standard of proof for such a defamation claim is also higher in cases
involving a public official. To succeed, Reykdal must show “clear and convincing
evidence” that Espinoza made the statement with actual malice. Duc Tan v. Le, 177
Wash. 2d 649, 300 P.3d 356 (2013). The more lenient “preponderance of the evidence”
standard from most civil tort litigation does not apply. Id.
Here, the superior court made no findings of actual malice. And there is
nothing in the record to suggest that Espinoza made her statement knowing it was
false or with a “reckless disregard” of its veracity. As discussed above, the statement
is not demonstrably false, and Espinoza could have reasonably relied on the logical
-9-
Reykdal v. Espinoza, 98731-9
chain of events arising from the policy leading to children viewing the It’s Perfectly
Normal book and learning about sexual positions. Whether Espinoza’s critique is
fair—and whether Reykdal’s policy is sound—is for the voters to decide.
Espinoza’s statement is inflammatory, but it does not defame Reykdal under the New
York Times standard.
It is of no help to Reykdal that the statute contains a reference to defamation
per se. RCW 29A.32.090(2) (the statement is “‘libel or defamation per se’ if [it]
tends to expose the candidate to hatred, contempt, ridicule, or obloquy, or to deprive
him or her of the benefit of public confidence or social intercourse, or to injure him
or her in his or her business or occupation”). This language arises from defamation
law concerning the proof of damages.
Generally, a plaintiff must prove and may recover only the “actual damages”
caused by defamation. Haueter v. Cowles Publ’g Co., 61 Wash. App. 572, 578, 811
P.2d 231 (1991). But when the communication is “defamatory per se,” there is no
requirement to prove “actual damages.” Id. Nothing in this “per se” exception to
the general rule, however, affects the applicability of the New York Times standard
requiring public officials to prove actual malice. That standard is grounded in First
Amendment principles that do not evaporate simply because the speech subjects the
public official to particularly heinous ridicule. Indeed, presumptive damages for the
-10-
Reykdal v. Espinoza, 98731-9
alleged defamation of public officials is specifically barred by New York Times. 376
U.S. at 283-84 (“Such a presumption is inconsistent with the federal rule.”). Reykdal
does not—and indeed cannot—meet his burden to show actual malice (which is an
element not present in normal defamation cases) by proving defamation per se
(which satisfies the damages element in normal defamation cases). Reykdal has
therefore not shown he is likely to succeed in a defamation suit as required by RCW
29A.32.090.
CONCLUSION
Because Reykdal is a public official, he cannot succeed in a defamation action
without proving actual malice. The superior court did not find actual malice, and
this record does not support such a finding. Accordingly, the superior court order
barring publication of Espinoza’s statement is reversed. The secretary of state shall
publish Espinoza’s original statement in the voters’ guide pamphlet.
-11-
Reykdal v. Esp inoza, 98731-9
WE CONCUR:
Johnson, J. Gordon McCloud, J.
Madsen, J.
Owens, J.
Whitener, J.
-12-
Reykdal v. Espinoza, No. 98731-9 (González, J., dissenting)
No. 98731-9
GONZÁLEZ, J. (dissenting) — A government of the people depends on
regular, free, and fair elections. To be fair, voters must have access to truthful
information about the candidates for office. In Washington State, every household
and every public library receives a voters’ pamphlet that contains the candidates’
own statements about why a voter should trust them with a vote. RCW
29A.32.010, .031. The voters’ pamphlet is a state-funded, limited public forum
and the people, through their legislature, have the power to impose reasonable,
viewpoint neutral rules on the candidates’ statements. See Cogswell v. City of
Seattle, 347 F.3d 809, 814 (9th Cir. 2003). The people of our state have imposed
the modest requirement that candidates not use the voters’ pamphlet as a vehicle to
make false or misleading statements about their opponents. RCW 29A.32.090(2).
To protect the free speech rights of candidates, the law imposes a heavy
burden on anyone seeking to remove language from the voters’ pamphlet. RCW
1
Reykdal v. Espinoza, No. 98731-9 (González, J., dissenting)
29A.32.090. Relevantly, a court must “conclude[] that the statement is untrue and
that the petitioner has a very substantial likelihood of prevailing in a defamation
action.” RCW 29A.32.090(3)(b). In this case, Superintendent Chris Reykdal has
challenged his opponent’s assertion that he “ignored parents and educators by
championing a policy that teaches sexual positions to 4th graders!” Clerk’s
Papers (CP) at 20. Because I agree with the trial judge that Reykdal has made the
requisite showing, I respectfully dissent.
I offer some background for context. Since 2008, Washington State has
required that public schools providing sexual health education ensure that the
information is medically and scientifically accurate and age appropriate. LAWS OF
2007, ch. 265, § 2, codified as RCW 28A.300.475. Recently, the legislature heard
testimony that only a little more than half of the state’s school districts were
providing comprehensive sexual health education. Hr’g on Engrossed Substitute
S.B. 5395 Before the H. Education Comm., 66th Leg., Reg. Sess. (Wash. Feb. 20,
2020), video recording by TVW, Washington State’s Public Affairs Network,
http://www.tvw.org/watch/?eventID=2020021250. This year, the legislature
passed an update to RCW 28A.300.475, Engrossed Substitute Senate Bill 5395
(ESSB 5395), at the request of the Office of the Superintendent of Public
2
Reykdal v. Espinoza, No. 98731-9 (González, J., dissenting)
Instruction (OSPI). See LAWS OF 2020, ch. 188; CP at 28-33. 1 Under ESSB 5395,
schools would be required to offer medically and scientifically accurate, age
appropriate sexual health education that includes material on affirmative consent
and bystander training. ESSB 5395, § 1, codified at RCW 28A.300.475(1). OSPI
is tasked with developing “a list of sexual health education curricula that are
consistent with the 2005 guidelines for sexual health information and disease
prevention.” RCW 28A.300.475(4). This list is intended to be a resource for local
school districts and teachers. Id. OSPI makes it clear that it does not, however,
approve or recommend curricula or instructional materials and that school districts
are encouraged to do their own independent review. “Inclusion of a title in a
review does not constitute ‘approval’ for district use.” CP at 136. School districts
are not limited to the curricula on the list. RCW 28A.300.475(5).
One of the curricula that OSPI found consistent with the 2005 guidelines is
called “Rights, Respect, Responsibility: A K-12 Sexuality Education Curriculum.”
CP at 91-100. This curriculum was created by the organization Advocates for
Youth, an outside organization not associated with OSPI. Nine other curricula
were found consistent with the guidelines for grades 4-5. As part of its packet of
materials in a lesson for fourth graders, the curriculum includes a handout designed
1
The bill has not gone into effect because a referendum has been filed and will be before the
voters this November. https://www.sos.wa.gov/elections/initiatives/referendum.aspx?y=2020.
3
Reykdal v. Espinoza, No. 98731-9 (González, J., dissenting)
for parents and other caregivers. The supplemental handout for parents references
a book titled It’s Perfectly Normal. CP at 51-52. The book contains cartoon
images of couples engaged in intercourse. This book is not part of the teaching
curriculum, and this record is bereft of any hint OSPI is recommending teachers
use it to teach. This is the basis for Maia Espinoza’s claim that Reykdal is
“championing a policy that teaches sexual positions to 4th graders!” CP at 20.
Espinoza herself acknowledges that this is a “trail of bread crumbs” that led
her to conclude Reykdal champions teaching sexual positions to fourth graders.
CP at 43. It is also simply not a reasonable or even plausible interpretation of the
facts. The fact that an outside organization reviewed this book, found that it was
age appropriate, and recommended it to parents as one of many resources that they
might find helpful in talking to their own children about puberty simply does not
amount to Reykdal championing teaching sexual positions to fourth graders. The
trail of bread crumbs is just too faint. Accordingly, I respectfully disagree with the
majority that the trial court erred in finding the statement was false.
Because Reykdal is a public official, he must also show that there is actual
malice or that the defendant knows the statement was false or “[was made] with
reckless disregard of whether it was false or not.” Duc Tan v. Le, 177 Wash. 2d 649,
681, 300 P.3d 356 (2013) (Johnson, J., dissenting) (alteration in original) (quoting
N.Y. Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S. Ct. 710, 11 L. Ed. 2d 686
4
Reykdal v. Espinoza, No. 98731-9 (González, J., dissenting)
(1964)). I recognize that the trial judge’s two page order does not make a specific
finding of malice. Nor does it make a finding of an unprivileged communication
or fault which are also elements of a defamation claim. See Mohr v. Grant, 153
Wash. 2d 812, 822, 108 P.3d 768 (2005) (plurality opinion); see also N.Y. Times, 376
U.S. at 279-80. Such findings are necessarily subsumed in its conclusion that
Reykdal has met his burden.
In my view, Reykdal has met this burden by showing that the “allegations
are so inherently improbable that actual malice may be inferred from the act of
putting such extreme statements in circulation.” Duc Tan, 177 Wash. 2d at 669
(citing Margoles v. Hubbart, 111 Wash. 2d 195, 201, 760 P.2d 324 (1988)). The
allegation that a public official would champion a policy teaching sexual positions
to fourth graders, based on a faint trail of bread crumbs reaches the level of
improbability to establish actual malice.
Reykdal is not required to show actual damages under the statute because
the statement is defamatory per se under RCW 29A.32.090(2). The statute
provides that
a false or misleading statement shall be considered “libel or defamation per
se” if the statement tends to expose the candidate to hatred, contempt,
ridicule, or obloquy, or to deprive him or her of the benefit of public
confidence or social intercourse, or to injure him or her in his or her business
occupation.
5
Reykdal v. Espinoza, No. 98731-9 (González, J., dissenting)
RCW 29A.32.090(2). Comments on the Seattle Times article contained in the
record demonstrate that Espinoza’s statement has already deprived him of at least
some of the public’s confidence. This is sufficient to meet the standard set forth in
RCW 29A.32.090(2). I respectfully disagree with the majority that Reykdal has
not met his statutory burden.
I also find no constitutional infirmity in this statute. First, I would join those
courts that have held voters’ pamphlets are limited public forums. See Cogswell,
347 F.3d at 814 (citing Kaplan v. County of Los Angeles, 894 F.2d 1076, 1080 (9th
Cir. 1990)). Only by the intentional action of “opening a nontraditional forum for
public discourse” can a government entity create a designated forum, not by
“inaction or by permitting limited discourse.” Cornelius v. NAACP Legal Def. &
Educ. Fund, Inc., 473 U.S. 788, 802, 105 S. Ct. 3439, 87 L. Ed. 2d 567 (1985).
The State has not taken any intentional action to create a public forum via the
voters’ pamphlet and, in fact, has set limitations on what speech may be included.
Since the voters’ pamphlet is a limited public forum, the government may
establish “any reasonable restriction to ensure that the forum will be reserved for
its intended purpose.” Sprague v. Spokane Valley Fire Dep’t, 189 Wash. 2d 858, 879,
409 P.3d 160 (2018) (citing City of Seattle v. Mighty Movers, Inc., 152 Wash. 2d 343,
361, 96 P.3d 979 (2004)). The restrictions “must only be viewpoint neutral and
‘reasonable in light of the purposes served by the forum.’” City of Lakewood v.
6
Reykdal v. Espinoza, No. 98731-9 (González, J., dissenting)
Willis, 186 Wash. 2d 210, 217-18, 375 P.3d 1056 (2016) (plurality opinion) (internal
quotation marks omitted) (quoting Rosenberger v. Rector & Visitors of Univ. of
Va., 515 U.S. 819, 829, 115 S. Ct. 2510, 132 L. Ed. 2d 700 (1995)). The
restriction on false and defamatory speech gives candidates the opportunity to
introduce themselves to voters while creating a mechanism to avoid exposing the
secretary of state to legal liability for publishing actionable defamation. See
Cogswell, 347 F.3d at 811; RCW 29A.32.090(3)(d). The restriction applies
equally to all candidates whose statements are challenged as false and defamatory
under the statute, and is therefore viewpoint neutral. See Cogswell, 347 F.3d at
816 (holding that restrictions on candidate statements in the voters’ pamphlet are
viewpoint neutral because they are “equally applicable to all candidates”).
Because the restrictions are reasonable and viewpoint neutral, it does not constitute
an unconstitutional infringement on speech.
The voters’ pamphlet provides a vital, government-sponsored service: a
neutral source for voter information. The citizens of Washington have expressed a
strong public interest in not allowing the voters’ pamphlet be a forum for false or
misleading statements about a candidate’s opponent. See RCW 29A.32.090(2).
Espinoza’s statement was false and misleading, and Reykdal met the heavy burden
established by the statute to have that statement removed.
I respectfully dissent.
7
Reykdal v. Espinoza, No. 98731-9 (González, J., dissenting)
____________________________
Gonzalez, J.
Yu, J.
Montoya-Lewis, J.
8