Gordon v. Boyles

• Decision Date: 26 February 2004
• Docket Number: No. 02CA2196.,02CA2196.
• Citation: 99 P.3d 75
• Parties: Bryan GORDON and Betty Gordon, Plaintiffs-Appellants and Cross-Appellees, v. Peter BOYLES and Jacor Broadcasting of Colorado, Inc., a Colorado corporation, Defendants-Appellees and Cross-Appellants.
• Court: Colorado Court of Appeals

99 P.3d 75

Bryan GORDON and Betty Gordon, Plaintiffs-Appellants and Cross-Appellees, v. Peter BOYLES and Jacor Broadcasting of Colorado, Inc., a Colorado corporation, Defendants-Appellees and Cross-Appellants.

No. 02CA2196.

Colorado Court of Appeals, Div. V.

February 26, 2004.

Certiorari Granted October 18, 2004.

Bruno, Bruno & Colin, P.C., Marc F. Colin, Joseph T. Van Horn, Denver, Colorado, for Plaintiffs-Appellants and Cross-Appellees.

Clisham, Satriana & Biscan, LLC, Daniel R. Satriana, Jr., Denver, Colorado; Hall & Evans, L.L.C., Alan Epstein, Denver, Colorado, for Defendants-Appellees and Cross-Appellants.

Opinion by Chief Judge DAVIDSON.

In this action concerning radio broadcasts of allegedly defamatory statements, plaintiffs, Bryan Gordon (Gordon) and Betty Gordon, appeal from the summary judgment entered in favor of defendants, Peter Boyles and Jacor Broadcasting of Colorado, Inc. Defendants cross-appeal the trial court's order of contempt and imposition of sanctions pursuant to C.R.C.P. 37. We affirm in part, reverse in part, and remand for further proceedings.

On February 1, 1997, Denver police officer Ron Thomas was stabbed during a fight in the parking lot of Pierre's Supper Club.

From April 10 through 16, 1997, Boyles made statements on his radio talk show on KHOW, a station owned and operated by Jacor, regarding the fight and the alleged participants. According to plaintiffs, Boyles asserted that Gordon, another Denver police officer, was the person who stabbed Thomas and that Gordon had a history of domestic violence and had engaged in an extramarital affair. During the first three broadcasts, Boyles did not mention Gordon by name, but referred to the assailant as a "son of a high-ranking Denver police woman." However, in the later broadcasts Boyles discussed Gordon's background and identified him by name.

In August 1997, based on the content of these broadcasts, plaintiffs brought this action against defendants, alleging seven counts of defamation, as well as claims for intentional infliction of emotional distress (outrageous conduct), false light, respondeat superior, negligent supervision, and loss of consortium. The full text of the alleged defamation is attached to this opinion as an appendix.

A discovery dispute arose over the applicability of the newsperson's privilege to the identity of Boyles's sources, and the trial court entered a contempt sanction against Boyles for refusal to comply with a particular discovery order. Boyles filed an appeal with this court. Subsequently, upon plaintiffs' motion, the trial court ordered Jacor and Boyles's news supervisor to reveal Boyles's sources, and Jacor and the supervisor petitioned the supreme court pursuant to C.A.R. 21 to vacate this order. Because of the similarity of issues presented, the supreme court consolidated Boyles's earlier appeal with that petition, resolved the newsperson's privilege issue, and remanded the case to the trial court for further proceedings. Gordon v. Boyles, 9 P.3d 1106 (Colo.2000).

On remand, defendants moved for summary judgment on all plaintiffs' claims, which the trial court granted. Plaintiffs then filed this appeal challenging the dismissal of their claims, except their claim for false light.

Summary judgment is appropriate when the moving party can demonstrate that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Burman v. Richmond Homes Ltd., 821 P.2d 913 (Colo.App.1991).

We review a summary judgment de novo. Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d 1251 (Colo.1995). In determining the existence of an issue of material fact, we assess the evidence in the light most favorable to the nonmoving party. Seible v. Denver Post Corp., 782 P.2d 805 (Colo.App.1989). Because this is a defamation case, in applying this standard, we ensure that First Amendment liberties have been respected by undertaking a full, independent examination of the record, see DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318 (1980),

and by requiring the existence of a material fact to be established with convincing clarity. See Reddick v. Craig, 719 P.2d 340, 343 (Colo.App.1985).

I.

Plaintiffs contend the trial court erred in granting summary judgment on their seven defamation claims and concluded as a matter of law that Boyles's statements were not defamatory per se and could not be shown to concern Gordon. We agree in part.

Defamation is a communication holding an individual up to contempt or ridicule that causes the individual to incur injury or damage. Keohane v. Stewart, 882 P.2d 1293 (Colo.1994).

A radio broadcast of defamatory matter is defamation by libel. Restatement (Second) Torts § 568A (1977); see Matherson v. Marchello, 100 A.D.2d 233, 473 N.Y.S.2d 998 (N.Y.App.Div.1984)

; Holley v. WBNS 10TV, Inc., 149 Ohio App.3d 22, 775 N.E.2d 579 (2002).

To be defamation per se, that is, to be actionable without proof of special damages, a libelous statement must be (1) on its face and without extrinsic proof, unmistakably recognized as injurious (defamatory meaning) and (2) specifically directed at the plaintiff (identity). See Lininger v. Knight, 123 Colo. 213, 226 P.2d 809 (1951)

.

A.

Plaintiffs first argue that Boyles's statements are defamatory per se because they allege criminal activity or serious sexual misconduct. We agree.

Whether a statement is defamatory is a question of law. Walker v. Associated Press, 160 Colo. 361, 417 P.2d 486 (1966).

A publication of libel can be either defamatory per se or defamatory per quod, depending upon the certainty of the defamatory meaning of the publication. If a libelous communication is defamatory per se, damage is presumed, and a plaintiff need not plead special damages. See Melcher v. Beeler, 48 Colo. 233, 110 P. 181 (1910)

; see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 112 (5th ed.1984)(in defamation per se, "existence of damage was conclusively presumed or assumed from the publication of the libel itself, without any evidence to show actual harm of any kind"). However, if the statement is defamatory per quod, special damages must be alleged to sustain the claim. See Bernstein v. Dun & Bradstreet, 149 Colo. 150, 368 P.2d 780 (1962); Keeton, supra, § 112.

If defamatory meaning is apparent from the face of the publication, or if the subject matter of the publication falls into one of the traditional slander per se categories, then the publication is defamatory per se. Bernstein v. Dun & Bradstreet, Inc., supra; see also

W. Prosser, Libel Per Quod, 46 Va. L.Rev. 839, 844 (1960).

The traditional categories of slander per se are imputation of (1) a criminal offense; (2) a loathsome disease; (3) a matter incompatible with the individual's business, trade, profession, or office; or (4) serious sexual misconduct. Restatement (Second) of Torts § 570; see Denver Publ'g Co. v. Bueno, 54 P.3d 893, 899 n. 9 (Colo.2002)

; see also Miles v. Nat'l Enquirer, Inc., 38 F.Supp.2d 1226, 1229 (D.Colo.1999) (reference to plaintiff as "pedophile" and "sex offender" was defamatory per se because of allegation of serious sexual misconduct).

However, if the defamatory meaning may be understood only in reference to extrinsic facts known by the recipient, then the publication is defamatory per quod. See Bernstein v. Dun & Bradstreet, supra; Keeton, supra, § 112.

Here, the four publications concerning the alleged stabbing of Officer Thomas are defamatory per se because each imputes a criminal offense. See § 18-3-203(b), C.R.S.2003 (assault in the second degree). The same is true of the two publications alleging domestic violence. See § 18-6-800.3, et seq., C.R.S 2003.

Furthermore, although the authorities traditionally have characterized allegations of extramarital affairs as per se defamatory only when they pertained to women, see, e.g., Biggerstaff v. Zimmerman, 108 Colo. 194, 114 P.2d 1098 (1941), the Restatement (Second) of Torts includes both genders, as well as conduct other than mere "unchastity." See Restatement (Second) of Torts, § 570 cmts. B-C; see also Rejent v. Liberation Publ'ns, Inc., 197 A.D.2d 240, 611 N.Y.S.2d 866, 868-69 (1994)

("Moreover, the notion that while the imputation of sexual immorality to a woman is defamatory per se, but is not so with respect to a man, has no place in modern jurisprudence. Such a distinction, having its basis in a gender-based classification, would violate constitutional precepts.").

Accordingly, we conclude that a statement that any person is engaging in an extramarital affair is an allegation of serious sexual misconduct for this purpose, and, therefore, the publication here alleging that Gordon engaged in an extramarital affair also is defamatory per se.

B.

Plaintiffs contend that the trial court erred in concluding that the statements were not specifically directed at Gordon. In making this argument, plaintiffs assert that extrinsic evidence may be used to establish that the statement is about Gordon without affecting the per se defamatory meaning. We agree.

The determination of identity is distinct from the determination of defamatory meaning. Although defamatory meaning must be apparent from the statement itself for a statement to be defamatory per se, whether the statement is directed at the plaintiff can be established by extrinsic proof without rendering the publication defamatory per quod. See Lininger v. Knight, supra; Switzer v. Anthony, 71 Colo. 291, 206 P. 391 (1922); Inter-State Detective Bureau, Inc. v. Denver Post, Inc., 29 Colo.App. 313, 484 P.2d 131 (1971).

In Denver Publishing Co. v. Bueno, supra, 54 P.3d at 896 n. 3, the supreme court stated that the determination of "libel per se does not include a requirement that the publication be specifically directed at the plaintiff." Plaintiffs urge us to interpret this footnote as eliminating the requirement that to be defamatory per se, the statement must be ...