Keohane v. Wilkerson

• Decision Date: 08 April 1993
• Docket Number: No. 91CA1840,91CA1840
• Citation: 859 P.2d 291
• Parties: 21 Media L. Rep. 1417 Paul KEOHANE, Plaintiff-Appellee, v. Grover K. WILKERSON, Stephen Stewart, and Terri Campbell, Defendants-Appellants. . I
• Court: Colorado Court of Appeals

Page 291

859 P.2d 291

21 Media L. Rep. 1417

Paul KEOHANE, Plaintiff-Appellee, v. Grover K. WILKERSON, Stephen Stewart, and Terri Campbell,

Defendants-Appellants.

No. 91CA1840.

Colorado Court of Appeals,

Div. I.

April 8, 1993.

Rehearing Denied May 13, 1993.

Certiorari Granted Sept. 20, 1993.

Paul J. Keohane, pro se.

Holland & Hart, A. Bruce Jones, Stephanie D. Welsh, Denver, for defendants-appellants.

Opinion by Judge DAVIDSON.

In this action for defamation, defendants, Stephen Stewart, Terri Campbell, and Grover Wilkerson, appeal from a judgment entered upon a jury verdict in favor of plaintiff, Paul Keohane. We affirm in part and reverse in part.

At the time this action arose, Keohane was serving as a district court judge in Fremont County. In late October and early November of 1988, Keohane presided over a highly publicized trial to the court in which a local anesthesiologist accused of sexually assaulting a teenage patient was found not guilty by reason of impaired mental condition (the Gallagher trial).

Following the verdict in the Gallagher trial, defendant Stewart, a Canon City councilman and spectator at the trial, allegedly approached Dwight Jurgens, a reporter for the Canon City Daily Record, and asked, "What do you think, was he paid off with drugs or money?" and, "Do you think he was paid off in cash or cocaine?" These remarks were not republished, and Jurgens allegedly told no one else but plaintiff of this exchange.

On November 8, 1988, the day of Keohane's retention election, two letters written by defendant Campbell under assumed names were published in the Fremont Observer, a local weekly newspaper. Although neither letter referred to Keohane by name, both referred to collusion and pay-offs between judges and doctors.

Keohane was not retained in the November election, and subsequently, he filed this defamation action against thirteen named defendants, including Stewart, Campbell, and Wilkerson, the editor of the Fremont Observer.

Over the objections of Stewart and Wilkerson, venue was ordered changed to the El Paso County district court. At the conclusion of the trial, only the claims against Stewart, Campbell and Wilkerson were submitted to the jury. The court ruled that Stewart's statements to Jurgens constituted slander per se and instructed the jury accordingly. With respect to Campbell's letters, the court instructed the jury as to libel per quod. The jury then returned a verdict in favor of Keohane, awarding him $15,000 in compensatory damages and $5,000 in punitive damages against Stewart $25,000 in compensatory damages and $1,000 in punitive damages against Campbell, and $25,000 in compensatory damages and $2,500 in punitive damages against Wilkerson. The award of punitive damages against Stewart was subsequently reduced to $2,500 by the trial court.

On appeal, defendants contend, among other things, that (1) neither Stewart's comments nor Campbell's letters could reasonably be interpreted as implying factual assertions; (2) the statements, when considered in context, are not defamatory; (3) Keohane presented insufficient proof of damages; and (4) the trial court erred in ordering venue changed to the El Paso County district court. We determine that Campbell's letters to the editor were constitutionally protected speech and thus are not actionable. Otherwise, we affirm.

I.

In Living Will Center v. NBC Subsidiary (KCNC-TV), Inc., 857 P.2d 514 (Colo.App.1993), we addressed the issue of the actionability of statements for the first time since the U.S. Supreme Court's decision in Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990). However, our opinion in that case was limited to the issue of whether the substance or gist of a television broadcast contained or implied assertions capable of being proved false. Because defendants raise additional issues which we have not yet fully considered in the wake of Milkovich, we must first address the proper standards for determining when a claim for defamation is actionable.

Whether allegedly defamatory language is constitutionally protected is a matter of law for the court to determine. See Sall v. Barber, 782 P.2d 1216 (Colo.App.1989). In order to make sure that the trial court's judgment does not constitute a forbidden intrusion on the field of free expression, a reviewing court must make an independent examination of the entire record. Milkovich v. Lorain Journal Co., supra; see Living Will Center v. NBC Subsidiary (KCNC-TV), Inc., supra.

Prior to Milkovich, statements of "pure" opinion were recognized as having constitutional privilege, and thus were not actionable for defamation in Colorado. See Burns v. McGraw-Hill Broadcasting Co., 659 P.2d 1351 (Colo.1983); Bucher v. Roberts, 198 Colo. 1, 595 P.2d 239 (1979). This privilege was premised on dictum in Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789, 805 (1974), in which the court stated:

Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact.

However, not all statements of opinion enjoyed constitutional privilege. As the Burns court noted, "opinions may lose their constitutional protection when 'the average reader or listener or viewer perceives the comment as essentially an assertion of fact.' " Burns v. McGraw-Hill Broadcasting Co., supra, at 1360.

Accordingly, in considering if the statement was actionable, our supreme court adopted a three-part analysis to determine whether the statement constituted "pure" opinion or a factual assertion: first, the court examined the phrasing of the statement to determine whether it would reasonably be interpreted as rhetorical hyperbole rather than fact; second, the court examined the effect of the entire statement, not just the objectionable word or phrase, in context; and third, the court considered the circumstances surrounding the statement, including the medium through which it was disseminated and the audience to whom it was directed. See Burns v. McGraw-Hill Broadcasting Co., supra; see also Sall v. Barber, supra.

However, in Milkovich, the Supreme Court rejected the constitutional distinction between opinion and fact. In that case, Milkovich, then a high school wrestling coach, had testified at a hearing concerning an altercation that broke out at a high school wrestling meet in which several people were injured. Following the hearing, an article appeared in the local newspaper criticizing the conduct of the coach and stating that: "Anyone who attended the meet or [an] impartial observer, knows in his heart that [Milkovich] lied at the hearing after [having] given his solemn oath to tell the truth." Subsequently, Milkovich commenced a defamation action against the newspaper, alleging that the article accused him of perjury and thereby damaged his reputation.

Noting that statements of opinion may nevertheless imply a false assertion of fact and that, in such cases, expressions of opinion can cause as much damage to reputation as an outright assertion of fact, the court refused to recognize the dichotomy between "fact" versus "opinion" that emerged from Gertz. The court flatly rejected the existence of any "so-called opinion privilege wholly in addition to the protections we have already found to be guaranteed by the First Amendment." (emphasis in original) Milkovich v. Lorain Journal Co., supra, 497 U.S. at 24, 110 S.Ct. at 2708, 111 L.Ed.2d at 21.

However, the court reasoned that in order to ensure "uninhibited, robust, and wide-open" debate on matters of public concern, "a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation," or which "cannot 'reasonably [be] interpreted as stating actual facts' about an individual," continues to receive full constitutional protection. Milkovich v. Lorain Journal Co., supra, 497 U.S. at 20, 110 S.Ct. at 2706, 111 L.Ed.2d at 18-19 (citing Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986) and Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988)). Finding that "the connotation that petitioner committed perjury is sufficiently factual to be susceptible of being proved true or false," and that the language and tenor of the newspaper column did not "negate the impression that the writer was seriously maintaining petitioner committed the crime of perjury," Milkovich v. Lorain Journal Co., supra, 497 U.S. at 21, 110 S.Ct. at 2707, 111 L.Ed.2d at 19, the Supreme Court reversed the opinion of the Ohio Supreme Court which had dismissed the appeal on the grounds that the alleged defamatory statement was opinion and, therefore, not actionable.

Thus, after Milkovich, whether a statement is characterized as a "fact" or "opinion" is no longer a relevant inquiry in determining whether it may be constitutionally privileged. Rather, the relevant inquiry is whether the statement could be reasonably understood as declaring or implying a provable assertion of fact. See Milkovich v. Lorain Journal Co., supra.

Hence, in considering whether a particular statement is actionable as libel or slander, we must first determine whether a reasonable factfinder could conclude that a statement contains or implies an assertion susceptible of being proved false. See Milkovich v. Lorain Journal Co., supra; see also Living Will Center v. NBC Subsidiary (KCNC-TV), Inc., supra. This necessarily requires us to make two separate inquiries: (1) does the statement contain or imply a verifiable fact about the plaintiff, and (2) is the statement reasonably susceptible to being understood as an actual assertion of fact.

In making these inquiries, we are not limited to the literal meaning of the words...