Salyer v. The Southern Poverty Law Ctr. Inc

• Decision Date: 07 December 2009
• Docket Number: Civil Action No. 3:09-CV-44-H.
• Parties: Robert E. SALYER, Plaintiffv.THE SOUTHERN POVERTY LAW CENTER, INC., Defendant.
• Court: U.S. District Court — Western District of Kentucky

701 F.Supp.2d 912

Robert E. SALYER, Plaintiffv.THE SOUTHERN POVERTY LAW CENTER, INC., Defendant.

Civil Action No. 3:09-CV-44-H.

United States District Court,

W.D. Kentucky,

at Louisville.

Dec. 7, 2009.

Thomas E. Carroll, Carroll & Turner, PSC, Monticello, KY, for Plaintiff.

James L. Adams, Jon L. Fleischaker, Dinsmore & Shohl LLP, Louisville, KY, Kimberly Bessiere Martin, Michael P. Huff, Bradley Arant Boult Cummings LLP, Huntsville, AL, Russell B. Morgan, Bradley Arant Boult Cummings, LLP, Nashville, TN, for Defendant.

MEMORANDUM OPINION

JOHN G. HEYBURN, II, District Judge.

Plaintiff, Robert E. Salyer, brought this action in Jefferson County (Kentucky) Circuit Court alleging that Defendant, The Southern Poverty Law Center, Inc., published defamatory statements about him in its 2006 “Intelligence Report,” which was published in a print magazine and online. Plaintiff filed suit on December 18, 2008. Defendant removed the case to this Court on diversity grounds.

The pending motions raise novel and interesting issues concerning allegedly defamatory statements on the internet and what might constitute republication of them. Specifically, the parties dispute the narrow issue of whether the one year statute of limitations applicable to defamation actions in Kentucky bars Plaintiff's claim. Because the article was originally published more than one year before commencement of this action, the critical question for the Court is whether the article was “republished” within that one year window. Additionally, Plaintiff seeks leave to amend the Complaint to assert a false light invasion of privacy claim.

I.

The relevant facts of this case are undisputed. Plaintiff is an attorney practicing primarily in Kentucky. On July 7, 2006, Defendant posted its “Intelligence Report,” a comprehensive examination of extremist groups in the military, on its website. The report contained an article entitled “A Few Bad Men,” which alleged that Plaintiff, among others, was a member of an extremist group and was dishonorably discharged from the military and disbarred from practicing before military courts as a result. The report, including the article, was then published in a print version on August 14, 2006 and mailed to various subscribers. Plaintiff alleges that the statements in the article relating to him were defamatory.

While the article remained accessible on Defendant's website indefinitely, it was not altered until July 21, 2008, when, at Plaintiff's request, Defendant removed all mention of Plaintiff's name. Several articles published on Defendant's website between the original publication of “A Few Bad Men” and the removal of Plaintiff's name referenced the article and included hyperlinks ¹ to its original version. Those referencing articles were published on July 21, 2006, July 25, 2006, September 1, 2006, November 23, 2006 and July 18, 2008. Additionally, Defendant's Winter 2008 quarterly print edition contained an article that referred to “A Few Bad Men.” ² Finally, at some time in 2008, Defendant mailed an unedited copy of the August 14, 2006 print publication to a researcher at his request. Plaintiff alleges that these actions constituted republication of the article for purposes of the statute of limitations.

II.

In an April 23, 2009 Memorandum Opinion (DN # 19), this Court found that all actions for defamation in Kentucky must be brought within one year of the defamatory material's publication date. See KRS § 413.140(1)(d); Caslin v. Gen. Elec. Co., 608 S.W.2d 69, 70 (Ky.App.1980). The Court further predicted that Kentucky would follow the “single publication rule” for all mass publications of allegedly defamatory materials, including those materials published on the internet.³ That rule provides that “any form of mass communication or aggregate publication ... is a single communication and can give rise to only one action for libel.” (Memorandum Opinion April 23, 2009, DN # 19.) On its face, the single publication rule bars this action. The lawsuit was filed on December 18, 2008 and the allegedly defamatory statements were originally published on July 7, 2006 on the internet and August 14, 2006 in print.

However, a narrow exception to the single publication rule called “republication,” could provide a way for Plaintiffs to avoid dismissal. As the Court previously noted,

Republishing material in a new edition, editing and republishing it, or placing it in a new form resets the statute of limitations. This exception protects Plaintiff by providing a remedy where the defendant edits and retransmits the defamatory material, or distributes the defamatory material for a second time with the goal of reaching a new audience.

(Memorandum Opinion April 23, 2009, DN # 19.) Therefore, if Defendant republished the article within one year of commencement of Plaintiff's action, the claim is not time barred.

Plaintiff argues, in essence, that two Defendant's actions each constitute republication: (1) the posting of articles referencing and hyperlinking to “A Few Bad Men,” and (2) the mailing of an additional copy of the “Intelligence Report” to a researcher in 2008. With discovery on the issue now complete and all parties having sufficiently briefed the issue, the Court can now fully address the issues.

III.

The difficulty here is applying the traditional republication exception in the context of material published on the internet, a form of communication certainly not envisioned when the republication and single publication rules were created. Very little case law, either from Kentucky or other jurisdictions, directly addresses these issues. Thus, the Court found its analysis on two important principles: (1) conforming with the basic purpose of the single publication rule, and (2) applying analogous examples of traditional republication law.

As the Court held in its April 23, 2009, Memorandum Opinion, “[u]nder the single publication rule, the statement is considered published and the statute of limitations runs as soon as the communication enters the stream of commerce.” (DN # 19.) The Court went on to explain that the single publication rule satisfies numerous purposes: to avoid multiplicity of actions; to protect the defendant from excessive liability based on a single publication run; to allow the plaintiff to recover all of his damages at once; and to reduce the chilling effect that the common-law rule might have on the mass communication of ideas. Moreover, the single publication rule is designed to prevent “endless retriggering of the statute of limitations.” Firth v. State of New York, 98 N.Y.2d 365, 747 N.Y.S.2d 69, 775 N.E.2d 463, 466 (2002). As the New York Court of Appeals held, in the absence of the single publication rule “the statute of limitations would never expire so long as a copy of such book remained in stock and is made [available to] the public. Such a rule would thwart the purpose of the Legislature to bar [actions filed after the limitations period had run].” Id. at 465, 747 N.Y.S.2d 69, 775 N.E.2d 463.

IV.

Plaintiff first argues that posting new articles referencing and hyperlinking to “A Few Bad Men” republished the article for purposes of the statute of limitations. The referencing articles were published July 21, 2006, July 25, 2006, September 1, 2006, November 23, 2006 and July 18, 2008.⁴ The first four of these articles are irrelevant to the pending motion as each was published more than one year before Plaintiff commenced this action. Even if those 2006 articles with hyperlinks did republish “A Few Bad Men,” this lawsuit would still be time barred. Therefore, only the July 18, 2008 article need be discussed.

Plaintiff does not contend that the new articles, including the references to “A Few Bad Men” themselves, were defamatory. The new articles made no specific mention of Plaintiff. Rather, Plaintiff contends only that by referencing and hyperlinking to “A Few Bad Men,” the new articles republished the defamatory statements contained therein. Plaintiff cites no case law finding that referencing or hyperlinking to a previous statement republishes that statement. However, that fact alone does not foreclose plaintiff's argument. The Court's research has found a significant dearth of case law on republication generally, as the term is used in this context, and specifically with regard to republication by reference or hyperlink. In analyzing the issue, the Court will examine both the reference and the hyperlink.

A.

The reference itself is not a republication of the original article. This Court has been unable to find any Kentucky or Sixth Circuit law directly on point. In 1946, the New York Court of Appeals did address the question directly in Klein v. Biben, 296 N.Y. 638, 69 N.E.2d 682 (1946). There, the defendant published an article in its May 12, 1944 publication and referenced that article in a subsequent article published on June 23, 1944. Asked the certified question, “Does the publication of June 23, 1944, republish the libel published on May 12, 1944, by specific reference thereto,” the court simply stated that “question[ ] certified [is] answered in the negative.” Id. at 682. The Court agrees with the answer given by New York's highest Court.

Republication, at its core, includes actions such as “publishing a second edition [of] a book or periodical, editing and republishing defamatory material, or placing it in a new form.” Davis v. Mitan, 347 B.R. 607, 611 (W.D.Ky.2006) (citing Restatement (Second) of Torts § 577A). The republication “exception provides the plaintiff with a remedy where the defendant edits and retransmits the defamatory material, or distributes the defamatory material for a second time with the goal of reaching a new audience.” Id. (citing Firth, 775 N.E.2d at 466-67). It appears that the common thread of traditional republication is that it presents the material, in its entirety, before a new audience. A mere reference to a previously published article does not do that. While it...