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

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Tribune’s managing editor, decided the column would not be published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.