Nat'l Police Ass'n v. Gannett Co.
| Docket Number | 22-1639 |
| Decision Date | 31 August 2023 |
| Parties | National Police Association, Inc., Plaintiff-Appellant, v. Gannett Co., Inc., et al., Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
1
National Police Association, Inc., Plaintiff-Appellant,
v.
Gannett Co., Inc., et al., Defendants-Appellees.
No. 22-1639
United States Court of Appeals, Seventh Circuit
August 31, 2023
ARGUED NOVEMBER 30, 2022
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:21-cv-01116-RLM-DLP - Robert L. Miller, Jr., Judge.
Before WOOD, JACKSON-AKIWUMI, and LEE, Circuit Judges.
JACKSON-AKIWUMI, CIRCUIT JUDGE.
The National Police Association ("NPA") is a non-profit organization that describes its purpose as "educat[ing] supporters of law enforcement in how to help police departments accomplish their goals." In 2018 and 2019, a handful of police departments around the country took issue with fundraising mailers the NPA sent residents; the departments characterized the solicitations as deceptive. The Indianapolis Star and the Associated Press
reported on the alerts issued by these police departments. In response, the NPA sued the publishers, alleging their reports were libelous. The organization lost when the district court dismissed its case, but it presses its theory on appeal-one based on a novel interpretation of the Restatement (Second) Torts § 577(2). In short, the NPA suggests the Restatement creates a requirement that internet publishers remove previously published libelous information. The NPA even asks that we certify questions to the Indiana Supreme Court to confirm that such a duty exists in Indiana. But because this alleged duty lacks doctrinal support, we decline to certify the questions and affirm the district court's dismissal of this case.
II
The NPA is a non-profit formed in 2017. It makes public service announcements, publishes various media, and prepares legal filings on behalf of police officers and police departments to help law enforcement agencies.
In May 2018, the Police Department of Germantown, Wisconsin, posted a "scam alert" on its Facebook page flagging NPA solicitations. The Police Department of Trenton, Michigan, did the same in February 2019.
The Indianapolis Star, owned by defendant-appellee Gannett Company, Inc, reported on the police department alerts a month later. The article ran on March 17, 2019, and was titled "This Indianapolis charity says it helps police. Police chiefs say it's a scam." Referencing alerts issued by several police departments, the article focused on whether the money NPA raised truly went to police departments in the municipalities where it mailed solicitations. The article highlighted statements in NPA mailers sent to residents of two towns that
falsely characterized the towns as sanctuary cities. The article quoted nonprofit experts who expressed measured skepticism of the NPA based on publicly available tax filings, and it noted that various Indianapolis police organizations and the national Fraternal Order of Police were generally unaware of the NPA. The Star also sought rebuttal comment from the president of the NPA; spoke to an attorney listed as the NPA's treasurer; and quoted a sheriff the NPA provided to the newspaper as a positive reference, who detailed assistance the organization provided to his department.
The next day-March 18, 2019-the AP published a wire story on the same allegations covered by the Star, titled "Police question authenticity of nonprofit's fundraising." The NPA characterizes the reporting in the AP and the Star stories as defamatory given they insinuate the NPA is a fraudulent or dubious organization.
In the year and a half after the two stories were published, the NPA began a campaign of extracting apparent retractions of the "scam" alerts the Star and the AP reported on. In May 2019, a few months after the articles ran, the Trenton Police Department updated its Facebook post. The revised post acknowledged the NPA "is an official organization". But the revised post also declared that the police department does not receive money from the NPA, and it cryptically advised, "Please do your own homework when donating to any charitable cause or organization." The NPA viewed the revised post as a retraction of the police department's original alert, noting that the reference to a "scam" was removed.
On June 21, 2019, the NPA sued the City of Trenton and two of its officers based on their statements included in the Star's March 17 story. After these lawsuits were filed, the Star
returned to the story, writing a follow-up on July 15 titled, "A pro-police Indianapolis nonprofit is suing 2 police officers." In this subsequent article, the paper recapped its reporting on the initial scam allegations.
As a part of its retraction campaign, the NPA also sued the Germantown Police Department, and extracted from Steven R. Kreklow, Village Administrator of Germantown, a statement noting that although Germantown proper was not a sanctuary city, it was a part of the Milwaukee metro area- where other municipalities had sanctuary policies.[1] The NPA also presents this statement as a retraction of the Germantown police chief's original statement that the mailers were misleading.
With statements in hand from Trenton, Germantown, and the City of Belle Isle, Florida (which also described the NPA mailers as misleading in the original Star story), counsel for the NPA sent a letter to Gannett, the publisher of The Indianapolis Star, and to the AP's Indiana office and general counsel, providing notice under Indiana Code § 34-15-4-2 that the NPA considered the three articles defamatory and intended to sue. The letter sought a retraction and removal of public access to online copies of the stories. Both letters pointed to the legal theory that would drive the suit: "Under the modern rule of continuing publication, a defamatory statement is deemed to be republished if, after becoming aware of its false and defamatory nature, the publisher leaves the publication
on the publisher's website subject to continuing access by third parties." In-house counsel for Gannett and the AP responded to the near-identical letters on February 23 and March 1, 2021, respectively. They disagreed with NPA's claim of defamation and stated they were prepared to defend the stories in potential litigation. The NPA filed its complaint on May 3, 2021.
The district court granted the publishers' motion to dismiss for three reasons. First, it held that the NPA's suit would fail under traditional defamation doctrines, given the organization never alleged "actual malice"-that the publishers were aware of an inaccuracy or had serious doubts about the accuracy of the material-when the stories were first published. Nat'l Police Ass'n, Inc. v. Gannett Co., No. 1:21-CV-1116 RLM-DLP, 2022 WL 594918, at *3 (S.D. Ind. Feb. 28, 2022).
Second, the district court was skeptical of the reasoning underlying the libel claim. The NPA predicated its suit on a novel application of the Restatement (Second) of Torts § 577(2),[2] which imposes liability for landowners who do not remove defamatory content on their property. NPA sought to apply this to the context of internet publications, backed by this court's decision in Tacket v. General Motors Corporation,
which predicted (incorrectly, at least to date) that Indiana would adopt § 577(2). 836 F.2d 1042, 1046 (7th Cir. 1987). The district court held that neither authority applied in this case, as the NPA's proposed "continued publication" rule was an attempt to conflate doctrine relating to a party's adoption of another's statement (the Restatement and Tacket) with a party's failure to retract one's own statement (the scenario here, the district court said). Nat'l Police Ass'n, Inc. v. Gannett Co., 2022 WL 594918, at *4.
Third, the district court determined that absent a basis for liability under § 577(2), the single publication rule, which limits libel liability to the first publication of a work, foreclosed the NPA's claim. Id. The court noted that the NPA failed to provide a limiting principle to its reading of § 577(2): if "failure to retract" created a claim, the court noted, liability could be created at any point after publication, thus undermining the single publication principle. Id.
III
On appeal, the NPA reiterates its claim that the Restatement (Second) of Torts § 577(2) provides a basis for its claims against Gannett and the...
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