Spreadbury v. Bitterroot Pub. Library

• Decision Date: 06 March 2012
• Docket Number: No. CV 11–64–M–DWM–JCL.,CV 11–64–M–DWM–JCL.
• Citation: 40 Media L. Rep. 1947,856 F.Supp.2d 1195
• Parties: Michael E. SPREADBURY, Plaintiff, v. BITTERROOT PUBLIC LIBRARY, City Of Hamilton, Lee Enterprises, Inc., and Boone Karlberg P.C., Defendants.
• Court: U.S. District Court — District of Montana

856 F.Supp.2d 1195

40 Media L. Rep. 1947

Michael E. SPREADBURY, Plaintiff,

v.BITTERROOT PUBLIC LIBRARY, City Of Hamilton, Lee Enterprises, Inc., and Boone Karlberg P.C., Defendants.

No. CV 11–64–M–DWM–JCL.

United States District Court,

D. Montana,

Missoula Division.

March 6, 2012.

Michael E. Spreadbury, Hamilton, MT, pro se.

Natasha Prinzing Jones, Thomas J. Leonard, William L. Crowley, Boone Karlberg, P.C., Anita Harper Poe, Jeffrey Brandon Smith, Garlington, Lohn & Robinson, PLLP, Missoula, MT, for Defendants.

ORDER

DONALD W. MOLLOY, District Judge.

September 28, 2011, Defendant Lee Enterprises, Inc. filed a motion for summary judgment on the counts remaining against it in this matter. United States Magistrate Judge Lynch entered Findings and Recommendations on November 30, 2011, 2011 WL 7462038 (dkt # 181). Both Lee Enterprises and Plaintiff Michael E. Spreadbury filed objections. They are therefore entitled to de novo review of the specified findings or recommendations to which they object. 28 U.S.C. § 636(b)(1). Because the parties are familiar with the facts, they will not be restated here except as necessary to explain the Court's decision.

As a preliminary matter, I do not address Spreadbury's objections which concern issues not connected to his claims against Lee Enterprises—for example, the constitutionality of Spreadbury's dealings with the City Defendants or the incorporation status of Hamilton, Montana—because they are not relevant to the motion under consideration. Nor do I address Spreadbury's new allegations, the objections to issues that have already been settled by this Court, or the objections that are not responsive to specific findings or recommendations made by Judge Lynch on November 30, 2011 (dkt # 181).

Though Spreadbury argues that summary judgment is not appropriate at this time because he expects additional facts to emerge through interrogatories (dkt # 188, 14), he has not met the standard necessary for a continuance under Rule 56(d) of the Federal Rules of Civil Procedure. He has not identified specific facts he hopes to obtain or made any showing that the facts he hopes to obtain actually exist. Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir.2008) (citation omitted). Accordingly, it is proper to consider Lee Enterprises's summary judgment motion. Id.

The following recommendations are adopted: Lee Enterprises's motion for summary judgment on Spreadbury's defamation per se, negligence, and tortious interference with prospective economic advantage claims is denied to the extent the claims are predicated on Lee Enterprises's incorrect publication that Spreadbury was convicted of disturbing the peace when he was actually convicted of criminal trespass. Summary judgment is granted in favor of Lee Enterprises as to Spreadbury's other legal claims for the reasons discussed below. I disagree with Judge Lynch's recommendation to deny summary judgment on the claim for punitive damages. In my view, Spreadbury has failed to produce any evidence of malice.

A. Communications Decency Act

Lee Enterprises is entitled to summary judgment on the claims that arose from comments posted by third parties on its website. Spreadbury's contention that the Communications Decency Act applies only to “internet service providers such as AOL, Yahoo, or Matchmaker,” dkt # 188, 11, is incorrect.

The Communications Decency Act protects “providers of interactive computer services against liability arising from content created by third parties.” Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1162 (9th Cir.2008). “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). “Interactive computer services” include websites that encourage users to submit public “comments.” E.g. Id. at 1174 (website where subscribers can post housing opportunities); Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) (website offering a listserv or message board); Carafano v. Metrosplash.com. Inc., 339 F.3d 1119 (9th Cir.2003) (internet dating service); Collins v. Purdue U., 703 F.Supp.2d 862, 878 (N.D.Ind.2010) (newspaper website providing opportunities for users to post comments about articles).

Through its website, Lee Enterprises provides an “interactive computer service,” 47 U.S.C. § 230(e)(3), that “enables computer access by multiple users to a computer server.” Collins, 703 F.Supp.2d at 878 (holding that a newspaper cannot be held liable for postings by third parties on its website)(quoting DiMeo v. Max, 248 Fed.Appx. 280, 282 (3rd Cir.2007)). The website is a “neutral tool” and offers a “simple generic prompt” for subscribers to comment about articles. Fair Housing Council, 521 F.3d at 1162, 1174. Lee Enterprises does not develop or select the comments, require or encourage readers to make defamatory statements, or edit comments to make them defamatory. See Collins, 703 F.Supp.2d at 878;Miles v. Raycom Media, Inc., Slip Copy, 2010 WL 3419438, *2–3 (Aug. 26, 2010 S.D.Miss.) (holding that a newspaper is not liable for comments posted by third parties on its website). Accordingly, I agree with Judge Lynch that Lee Enterprises is entitled to summary judgment on Spreadbury's claims that are predicated on third-party comments.

B. Defamation

I also agree that Lee Enterprises is entitled to summary judgment on Spreadbury's defamation claims, which are based on statements about his civil proceedings against various Hamilton officials. These statements were published in an August 9, 2010 article.

Certain publications are privileged and do not constitute defamation. Montana law provides that a “privileged publication” includes “a fair and true report [made] without malice of a judicial, legislative, or other public official proceeding or of anything said in the course thereof.” Mont.Code Ann. § 27–1–804(4). If a statement is not privileged, the plaintiff must support a claim of defamation by establishing that the statement exposed him “to hatred, contempt, ridicule, or obloquy.” Mont.Code Ann. § 27–1–802.

Most of the statements Spreadbury challenges constitute a fair and true report of his civil proceedings. The record supports the reported amount of damages sought by Spreadbury. Similarly, the transcript supports the article's account of arguments made by an attorney at the August 6, 2010 hearing. Spreadbury has not shown show how Lee Enterprises's report that he stated a law student was supervised by an assistant county attorney exposed him “to hatred, contempt, ridicule, or obloquy.” Mont.Code Ann. § 27–1–802. Nor does Spreadbury show in his objections any grounds for his argument that reporting quotations from the proceedings “out of context” resulted in an unfair report.

Judge Lynch was correct in finding that Spreadbury failed to present any evidence from which a jury could conclude that Lee Enterprises published any of its news articles with malice. Dkt # 181, 9 n. 3. His bare allegations of malice do not suffice to defeat summary judgment. “A plaintiff must put forth ‘sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.’ ” Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1168 (9th Cir.2009) (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968)). Spreadbury has not shown any evidence of malice behind any of the statements that he challenges.

Accordingly, summary judgment on Spreadbury's defamation claims is granted in favor of Lee Enterprises.

C. Defamation per se

The August 9, 2010 article also stated that Spreadbury was convicted of the crime of disturbing the peace. In fact, he was convicted of criminal trespass. Spreadbury's claim regarding this statement survives Lee Enterprises's summary judgment motion because the statement may constitute defamation per se. However, the jury must decide whether Spreadbury was a limited public figure or a private figure at the time the statement was published.

Under Montana law, defamation per se exists when a private actor falsely accuses an individual of committing a crime. Blue Ridge Homes, Inc. v. Thein, 345 Mont. 125, 191 P.3d 374, 378, 382 (2008); McCusker v. Roberts, 152 Mont. 513, 452 P.2d 408, 414 (1969); Keller v. Safeway Stores, Inc., 111 Mont. 28, 108 P.2d 605, 608–09 (1940). The plaintiff need not prove damages; they are presumed. McCusker, 452 P.2d at 414. A defendant may be liable for defamation per se where it reports that a person was convicted of one crime, but the person was convicted of a different crime. See e.g. Towle v. St. Albans Publg. Corp., Inc., 122 Vt. 134, 165 A.2d 363, 368 (1960).

Here, Lee Enterprises incorrectly reported that Spreadbury was convicted of disturbing the peace. The standard of care Lee Enterprises must be held to depends on whether Spreadbury is a private figure or a limited public figure. Limited public figures are people who have voluntarily injected themselves into a particularpublic controversy; they become public figures for that limited range of issues. Kurth v. Great Falls Tribune Co., 246 Mont. 407, 804 P.2d 393, 394 (1991) (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974)). If Spreadbury was a private figure at the time of publication, a negligence standard applies. See Madison v. Yunker, 180 Mont. 54, 589 P.2d 126, 132–33 (1978).

Under Montana law, the public figure analysis applies to defamation per se as well as to defamation. In Kurth v. Great Falls Tribune Co., the Great Falls Tribune incorrectly reported that the plaintiff was sought for at least nine criminal charges. 804 P.2d at 394. A false accusation that a person is charged with a crime constitutes defamation per se under Montana law. McCusker, 452 P.2d at 414. Though dealing with defamation per se, the...