Stevens v. Iowa Newspapers, Inc.

• Decision Date: 09 March 2007
• Docket Number: No. 04-0987.,04-0987.
• Citation: 728 N.W.2d 823
• Parties: Todd M. STEVENS, Appellant, v. IOWA NEWSPAPERS, INC., Susan Harman and Erik Brooks, Appellees.
• Court: Iowa Supreme Court

728 N.W.2d 823

Todd M. STEVENS, Appellant, v. IOWA NEWSPAPERS, INC., Susan Harman and Erik Brooks, Appellees.

No. 04-0987.

Supreme Court of Iowa.

March 9, 2007.

Theodore F. Sporer of Sporer & Ilic, P.C., Des Moines, for appellant.

Michael C. Cox of Koley Jessen, P.C., Omaha, Nebraska, for appellees.

LARSON, Justice.

Todd Stevens brought a libel suit against Iowa Newspapers, Inc., as owner, and Susan Harman and Erik Brooks, reporter and editor, respectively, of the Ames Tribune. The district court granted the defendants' motion for summary judgment, and the plaintiff appealed. The court of appeals affirmed in part and reversed in part. We granted further review and now affirm the decision of the court of appeals, reverse the judgment of the district court, and remand.

I. Facts and Prior Proceedings.

The facts, as produced in the summary judgment record, are undisputed. In November 1998 Todd Stevens orally agreed with Iowa Newspapers to provide weekly sports columns to the Tribune to be paid on a per-column basis. He was not an employee of the newspaper, but was considered a freelance journalist subject to the Tribune's editorial policies and decisions.

In June 2002 Susan Harman, the sports section editor, wrote and published a column about the resignation of Iowa State University's associate athletic director, Elaine Hieber. Stevens disagreed with the tone of Harman's article, believing it was too complimentary toward the resigning employee, and drafted his own column expressing his viewpoint. After reviewing Stevens' proffered article, Harman and David Kraemer, the Tribune's managing editor, decided the column would not be published without further discussion with Stevens because of the column's negative comments and implications concerning the quality of the newspaper's investigation and reporting of the incident.

Stevens redrafted his column, toning down his attack on the newspaper's investigation, but Harman and Kraemer still refused to publish it. In the meantime, Stevens read his column on the air on a local sports radio talk program.

Stevens advised Kraemer that he would no longer write for the Tribune and asked to write a "farewell" column. Kraemer consented, and the column was published in the Tribune on June 10, 2002, under the heading "Point Counterpoint — Columnist Opts Out of the Tribune." Directly adjacent to Stevens' column was a response authored by Harman. Three comments in Harman's response became the basis of Stevens' libel action: (1) That Stevens "in fact rarely attended events upon which he wrote columns"; (2) that Stevens' original column on Hieber's resignation "contained numerous factual errors and unsubstantiated claims"; and (3) that Stevens' redraft of his Hieber resignation column "continued to include fatal factual errors and near libelous characterizations."

Stevens sued on a theory of express libel, and the district court found that Stevens also had possibly pled a theory of defamation by implication. Even though the district court was not convinced that defamation by implication existed in Iowa law, it considered that possibility in its ruling.

We begin the discussion of the merits of this appeal by first determining the plaintiff's status — an important consideration in defamation cases. For defamation purposes, a person becomes a public figure in two ways.

In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions.

Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S.Ct. 2997, 3013, 41 L.Ed.2d 789, 812 (1974). Stevens apparently admits, for libel purposes, that he is a public figure.

Stevens, as a public figure, had the burden to show that a reasonable jury could find by clear and convincing evidence that (1) the challenged statements in Harman's column were false and (2) Harman made the statements with "actual malice." See New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 726, 11 L.Ed.2d 686, 706 (1964); Carr v. Bankers Trust Co., 546 N.W.2d 901, 904 (Iowa 1996). The district court ruled that Stevens failed to meet this test and granted the defendants' motion for summary judgment.

The court of appeals affirmed the district court's findings on statements 2 and 3 (quoted above), reversed on statement 1 (that Stevens rarely attended the events upon which he wrote columns), and remanded for trial. The court of appeals, noting a split of authorities on the issue, concluded Iowa would recognize a claim for defamation by implication.

II. Review of Summary Judgment.

The standard of review for summary judgment cases is well settled. We review summary judgment motions for correction of errors at law. Carr, 546 N.W.2d at 903. Summary judgment is appropriate only when the entire record demonstrates that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Id. We review the evidence in the light most favorable to the nonmoving party. Mason v. Vision Iowa Bd., 700 N.W.2d 349, 353 (Iowa 2005).

A party resisting a motion for summary judgment cannot rely on the mere assertions in his pleadings but must come forward with evidence to demonstrate that a genuine issue of fact is presented. The record on summary judgment includes the pleadings, depositions, affidavits, and exhibits presented. Carr, 546 N.W.2d at 903. Unique rules apply in defamation cases because First Amendment rights are implicated. Id. at 904 (holding that the court "must examine the evidence to determine if a rational fact finder could conclude that malice had been established by clear-and-convincing evidence").

III. Defamation by Implication.

The statements at issue, i.e., that Stevens rarely attended the events he covered; that his original column contained numerous factual errors and unsubstantiated claims; and that Stevens' redraft continued to include factual errors and "near" libelous characterizations, were all basically true. It is only when the statements are given the spin that Stevens attributes to them that they may be considered libelous. This raises the initial question of whether we recognize defamation by implication.¹

Defamation by implication arises, not from what is stated, but from what is implied when a defendant

(1) juxtaposes a series of facts so as to imply a defamatory connection between them, or (2) creates a defamatory implication by omitting facts, [such that] he may be held responsible for the defamatory implication, unless it qualifies as an opinion, even though the particular facts are correct.

Dan B. Dobbs, Prosser & Keeton on the Law of Torts § 116, at 117 (Supp.1988). Iowa case law has not expressly adopted the principle of defamation by implication; however, analogous cases suggest that such a cause of action would be recognized. See, e.g., Huegerich v. IBP, Inc., 547 N.W.2d 216, 221 (Iowa 1996) ("In determining what the third person understands the defamatory statement must be viewed in the context of the surrounding circumstances and within the entire communication."); Haas v. Evening Democrat Co., 252 Iowa 517, 528, 107 N.W.2d 444, 451 (1961) ("An innuendo, in the law of slander and libel, is only a word of explanation, an attempt to give a meaning to what was actually expressed."); Salinger v. Des Moines Capital, 206 Iowa 592, 596-97, 217 N.W. 555, 557 (1928) (statement that the decisions of the Iowa Supreme Court were the judgment of one man was libelous as it was "fairly susceptible of the meaning and intendment, attributed to it in the innuendo, that plaintiff was violating his duty as a member of the court"); Kelly v. Iowa State Educ. Ass'n, 372 N.W.2d 288, 295-96 (Iowa Ct.App.1985) (statement in question implies that the state educational administrator was not competent; libel action was permitted based on this implication); see also Restatement (Second) of Torts § 563 cmt. c, at 163 (1965) ("The defamatory imputation may be made by innuendo, by figure of speech, by expressions of belief, by allusion or by irony or satire.").

We now expressly adopt the principle of defamation by implication. Otherwise, by a careful choice of words in juxtaposition of statements in a publication, a potential defendant may make statements that are true yet just as damaging as if they were actually false. Whether we adopt the theory of implied defamation in suits against public officials or public figures such as Stevens, however, presents a closer question. As the Supreme Court has observed, "elected public official[s] ... traditionally have been subject to special rules of libel law." Curtis Publ'g Co. v. Butts, 388 U.S. 130, 144, 87 S.Ct. 1975, 1986, 18 L.Ed.2d 1094, 1105 (1967). In fact, some courts have been reluctant to permit an action for defamation by implication in public-figure or public-official cases. See, e.g., Price v. Viking Penguin, Inc., 881 F.2d 1426, 1432 (8th Cir.1989), cert. denied, 493 U.S. 1036, 110 S.Ct. 757, 107 L.Ed.2d 774, reh'g denied, 494 U.S. 1013, 110 S.Ct. 1312, 108 L.Ed.2d 488 (1990) (suit for implied defamation by FBI agent; court refused to recognize such suits); Diesen v. Hessburg, 455 N.W.2d 446, 452 (Minn.1990) ("[W]e hold an allegedly false implication arising out of true statements is generally not actionable in defamation by a public official...."); De Falco v. Anderson, 209 N.J.Super. 99, 506 A.2d 1280, 1284 (1986) (There can be no libel by innuendo by public figures when the facts in the challenged communication are true.); see also 16B C.J.S. Constitutional Law § 876, at 170 (2005) ("As a general rule, all truthful statements concerning public officials are constitutionally protected even if a false...