No. 91CA1840Colorado Court of Appeals.
Decided April 8, 1993. Rehearing Denied May 13, 1993. Certiorari pending 06/22/93 (93SC382).
Appeal from the District Court of El Paso County Honorable Richard V. Hall, Judge
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Paul J. Keohane, Pro Se.
Holland Hart, A. Bruce Jones, Stephanie D. Welsh, for Defendants-Appellants.
Division I.
Opinion by JUDGE DAVIDSON.
[1] 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. [2] 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). [3] 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. [4] 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. [5] 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. [6] 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,Page 295
$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.
[7] 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.
[8] In Living Will Center v. NBC Subsidiary (KCNC-TV), Inc., 857 P.2d 514
(Colo.App. No. 92CA0139, February 11, 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.
(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: [11] “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.” [12] 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. [13] 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. [14] 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
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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.
[15] 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. [16] 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. [17] 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. [18] 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. [19] In making these inquiries, we are not limited to the literal meaning of the words contained in the statement. Although Milkovich eschews fact/opinion terminology, it does not require us to abandon the multi-factored analysis previously employed to determine the actionability of a statement. See Phantom Touring, Inc. v. Affiliated Publications, 953 F.2d 724 (1st Cir. 1992). The factors identified by the Burns court, i.e., the phrasing of the statement, the context in which it appears, and the surrounding circumstances of its publication, are relevant and must be considered in determining whether the statement could reasonably be understood as containing an express or implied assertion of fact. See Sunshine Sportswear Electronics, Inc. v. WSOC Television, Inc., 738 F. Supp. 1499 (D. S.C. 1989). In addition, we must consider the impression created by the words as well as the general tenor of the
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conversation or article from the point of view of the reasonable person See Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 566 N.Y.S.2d 906, 567 N.E.2d 1270 (1991).
[20] If, in light of these factors, a statement does not contain or imply a verifiable fact, it is not actionable. Likewise, if the statement does contain or imply a verifiable fact, but is not reasonably susceptible to interpretation as a declaration of fact, it will receive full constitutional protection and no action for defamation will lie. Conversely, a statement, even if it is phrased as an opinion, will not enjoy constitutional protection if the court concludes that its substance or gist could reasonably be interpreted as declaring or implying an assertion of fact. See Milkovich v. Lorain Journal Co., supra. [21] If the court determines that the statement is actionable, the claim may then be submitted to the factfinder for a determination of whether the statement is defamatory. See Living Will Center v. NBC Subsidiary, (KCNC-TV), Inc., supra (whether a statement makes a factual allegation and whether the statement is defamatory are separate and distinct issues). [22] Bearing these principles in mind, we address the specific issues raised by defendants in this appeal.II.
[23] Defendants first contend that their statements are constitutionally protected under the First Amendment and therefore are not actionable. Thus, they argue, the trial court erred in submitting Keohane’s defamation claim to the jury. We do not agree that Stewart’s statements were privileged. However, we do conclude that Campbell’s letters are constitutionally protected speech and, therefore, are not actionable.
A.
[24] Initially, we disagree with defendants’ contention that Stewart’s statements to Jurgens were ambiguous, open-ended questions which cannot be proven false and which were not asserted as fact.
(“If a speaker says, `In my opinion John Jones is a liar,’ he implies a knowledge of facts which lead to the conclusion that Jones told an untruth.”). [28] The record shows that Stewart was an elected official who occupied a position of trust in the Canon City area. As such, a reasonable person might expect him to have knowledge of the affairs of local government unavailable to the general public. Moreover, Stewart had publicly stated that Keohane was “the best judge money can buy” following an exchange with him during the Gallagher trial. This earlier comment, prior to the verdict in the Gallagher
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trial, would tend to reinforce the view that Stewart was seriously maintaining that Keohane had accepted a bribe, rather than merely positing a speculative explanation for the verdict.
[29] Thus, viewing Stewart’s statements in context, we are persuaded that a reasonable person could conclude that Stewart was implicitly asserting as actual fact that Keohane had accepted a bribe based upon undisclosed facts known to him as a city councilman. See Milkovich v. Lorain Journal Co., supra (newspaper column was written so as to imply that reporter’s presence at certain events made him uniquely situated to draw the inference that the plaintiff had lied); Burns v. McGraw Hill Broadcasting Co., supra, 659 P.2d at 1360 (“[R]easonable people could have believed that the reporter had inside knowledge of the facts which would support her charge that [plaintiff] `deserted’ [her husband].”). [30] Although Jurgens, the only party who heard Stewart make the comments, testified that he was unsure whether Stewart thought that Keohane had accepted a bribe, such testimony is not dispositive. Rather, we must determine whether a reasonable person could conclude that the speaker was seriously maintaining a factual assertion. Because we conclude that a reasonable person could, the trial court did not err in submitting the issue to the jury.B.
[31] Next, defendants contend that Campbell’s letters were not actionable for defamation because they contain no statements or implications reasonably susceptible to interpretation as assertions of fact. The letters, they argue, were “phrased in terms of apparency,” indicating that Campbell was simply “speculating” as to misconduct by Keohane. When considered in context, they contend, the letters are properly seen as “`loose, figurative, and hyperbolic’ expressions of [Campbell’s] disgust for the way prominent figures in the community had behaved.” Finally, they emphasize that the letters appeared in the “letters to the editor” section of the Fremont Observer in the context of a retention election. Thus, they argue, the trial court erred in determining that the letters were actionable. We agree.
1. The “Sick Pillars” Letter
[33] The first of Campbell’s letters, entitled Sick Pillars of the Community, appeared on page 12 of the November 8, 1988, edition of th Fremont Observer. The letter opens with a reference to the Gallagher trial and the trial of another local figure, stating: “The two local `sickies’ in our community that [sic] got caught have not and may never lose their licenses to practice medicine.” The letter then goes on to state:
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Trial to the Court always means the judge has total control of the verdict. Under these circumstances did anyone expect that a guilty verdict would not be rendered?”
[41] Here again, we conclude that this letter contains several statements or implications of verifiable fact about Keohane. For example, on its face, the letter states that a conspiracy to “let off” the defendant existed in the Gallagher trial and that the motive for the conspiracy was money. In addition, the letter implies that Keohane was involved in this conspiracy. Each of these statements or implications is capable of being proved true or false. [42] However, viewing the letter in context, we conclude that it is not reasonably susceptible to an interpretation that it is maintaining factual assertions; rather, the letter can only be reasonably interpreted as suggesting a personal conclusion based upon facts which were accessible and well known to the community at the time of publication. Therefore, we conclude that it is not actionable. [43] When a party makes a speculative or conjectural statement based upon truthful, nondefamatory facts which are disclosed or otherwise generally known to the audience, the statement cannot reasonably be understood as an assertion of fact. See Dunlap v. Wayne, 105 Wn.2d 529, 716 P.2d 842(1986); see also Milkovich v. Lorain Journal Co., supra; Burns v. McGraw-Hill Broadcasting Co., supra; Seible v. Denver Post Corp., 782 P.2d 805 (Colo.App. 1989); Brooks v. Paige, 773 P.2d 1098 (Colo.App. 1988); Restatement (Second) of Torts § 566, comment c (1977). [44] In such a case, the author or speaker does not implicitly assert any firsthand knowledge inaccessible to the audience. To the contrary, if the audience is appraised of the facts underlying a speculative assertion, it is not required to share in the conclusion of the author and may judge the truth of the statement or draw conclusions for itself See Potomac Valve Fitting Inc. v. Crawford Fitting Co., 829 F.2d 1280
(4th Cir. 1987); National Ass’n of Government Employees, Inc. v. Central Broadcasting Corp., 379 Mass. 220, 396 N.E.2d 996 (1979); Dunlap v. Wayne, supra. [45] Such speculative commentary on matters of public concern is critical to the “uninhibited, robust, and wide-open” public debate essential to a democratic society, see New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686, 701 (1964), as it provides “a means of fueling a national discourse” and stimulates “public pressure for answers from those who know more.” Milkovich v. Lorain Journal Co., supra, 497 U.S. at 35, 110 S.Ct. at 2714, 111 L.Ed.2d at 28 (Brennan, J., dissenting). [46] Here, prior to the Gallagher trial, another prominent doctor practicing in Canon City had been accused of sexual misconduct and had left the community. In addition, two local district attorneys, including one who had originally been assigned to the Gallagher case, had been accused of drug-related offenses, prompting the Canon City police chief to call publicly for a grand jury investigation into “the accusations, insinuations and rumors which have been leveled regarding public officials and law enforcement in the past year.” Each of these events had received a great deal of publicity in the community. [47] In addition, the Gallagher trial, which involved a sexual assault by a doctor against his teenage patient, was highly controversial and had also received a great deal of publicity. Thus, it was well known that, following a trial to the court, in which three psychiatrists had testified as to his impaired mental condition, Gallagher was found not guilty by reason of mental impairment, and that, although Gallagher was ordered confined to a mental institution, he received no prison sentence. [48] In her letter, Campbell explicitly refers to the Gallagher trial, and there is ample evidence in the record to indicate that the letter was understood as referring to Keohane and the allegations surrounding other figures in the community. Such references to well-known events would put a reasonable reader on notice that Campbell based her allegations on facts which were generally
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known and available to the community. Thus, to a reasonable reader, Campbell’s statements would be perceived as Campbell’s personal appraisal of generally known facts and not as an assertion of any firsthand knowledge otherwise unavailable to the audience. See Burns v. McGraw-Hill Broadcasting Co., supra; see also Dunlap v. Wayne, supra, 105 Wn.2d at ___, 716 P.2d at 849 (“When a publisher makes a qualified or unqualified assertion of fact based upon true information supplied to the public or equally available to the public, he simply deduces a particular fact about the defamed person from known facts.”). Because the factual premises for Campbell’s conclusions generally were known, and because the letter contained no implied assertion of firsthand knowledge unknown to the audience, the audience remained free to judge the reasonableness, or lack thereof, of Campbell’s conclusions, or to draw their own conclusions.
[49] Moreover, the metaphoric choice of words and vituperative tenor of the letter, together with the placement of the letter, along with others by various authors, in the “letters to the editor” section of a local newspaper, tend to reinforce the conclusion that a reasonable person could not interpret the letter as an assertion of actual known fact. See Sall v. Barber, supra; see also Ollman v. Evans, 750 F.2d 970, 986 (D.C. Cir. 1984) (“The reasonable reader who peruses [a] column on the editorial or Op-Ed page is fully aware that the statements found there are not `hard’ news like those printed on the front page or elsewhere in the news sections of the newspaper.”). As we have previously recognized, letters to the editor are a traditional forum for public debate and the expression of opinion See Sall v. Barber, supra; Reddick v. Craig, 719 P.2d 340 (Colo.App. 1985).2. The “White Collar Crime” Letter
[50] Campbell’s second letter, entitled White Collar Crime, Gold Rush of the ’80’s, appeared on page 14 of the November 8, 1988, Fremont Observer.
It begins: “A trial to the court which means no jury, [sic] is used and only a judge renders a decision seems to be open to suspect [sic].” The letter then describes how a “judge is really in a position to clean up financially,” if “as an example,” the judge approaches an “old buddy, who just committed a heinous crime [and] stands to lose his license to practice law or medicine,” and offers to find “a way out” of his dilemma in exchange for a “home in another state” and “some six figure money.” “If this could be proven,” the letter continues, “it is also called extortion. Using your position, elected or appointed, to line your own pockets is despicable at best and criminal at worst.”
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phrases such as “he can approach his old buddy with a deal” and “if this could be proven.” Although the phrasing of a statement in such “terms of apparency” is not dispositive, it would put the reasonable reader on notice that the inferences contained in the letter are speculative and not based upon the knowledge of the author. See Burns v. McGraw-Hill Broadcasting Co., supra. Thus, the phrasing of the letter also tends to negate the impression that the writer was actually maintaining a factual assertion. See Milkovich v. Lorain Journal Co., supra.
[54] Hence, we conclude that the sum effect of the content, tone, and format of Campbell’s letters are reasonably susceptible to interpretation only as an expression of her point of view, not as an assertion of actual known fact. Therefore, Campbell’s letters were constitutionally protected and the trial court erred in submitting them to the jury on the issue of defamation. III.
[55] Next, defendants argue that, even if the statements were actionable, they were not defamatory, and therefore, the judgment against them must be reversed. Because we have already concluded that Campbell’s letters were not actionable, we need not consider whether they were defamatory. See Living Will Center v. NBC Subsidiary (KCNC-TV), Inc., supra. Therefore, we limit our discussion to the issue of whether the trial court erred in ruling that Stewart’s statements were slanderous per se. We perceive no error in this ruling.
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and the common meaning of the words utilized. See Burns v. McGraw-Hill Broadcasting Co., supra.
[62] Whether a statement is to be considered slander per se or per quod is a question of law. Cinquanta v. Burdett, supra. [63] Here, Stewart’s statements unmistakably relate to the commission of a criminal offense, i.e., accepting a bribe or use of drugs, or to improper conduct in office. In addition, the trial court found that “there is no possibility of confusing who the statement was about.” Based upon these findings, the trial court instructed the jury as to slander per se. We perceive no error in this ruling. [64] It is immaterial whether Jurgens, the party to whom the statements were made, considered the statement defamatory. Rather, “[i]t is enough that the communication would tend to prejudice [plaintiff] in the eyes of a substantial and respectable minority” of the community. Restatement (Second) of Torts § 559, comment e (1977); see also Burns v. McGraw-Hill Broadcasting Co., supra; cf. Cinquanta v. Burdett, supra (whether language is offensive to the recipient does not itself make the words slanderous per se). Moreover, if a statement imputes criminal activity or improper conduct in office, the words are presumed to be defamatory. See Inter-State Detective Bureau, Inc. v. Denver Post, Inc., supra. [65] Further, because it was uncontroverted that Jurgens understood that Stewart’s remarks were directed at Keohane, extrinsic evidence was not required. “A defamatory communication is made concerning the person to whom its recipient correctly, or mistakenly but reasonably, understands that it was intended to refer.” Restatement (Second) of Torts § 564 (1977). Further, because the statements, as a matter of law, unmistakably refer to the criminal conduct of accepting a bribe, extrinsic evidence was not required to establish the defamatory nature of the statements. Therefore, the trial court did not err in instructing the jury as to a theory of slander per se. IV.
[66] Defendants also contend that Keohane, as a public figure plaintiff, should not be permitted to recover actual damages from Stewart on his claim for slander per se because only one person, Jurgens, heard the comment and he did not believe it to be true. We disagree.
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that the jury’s award of damages is not “grossly and manifestly excessive,” and therefore, we will not disturb it on review. See Zertuche v. Montgomery Ward Co., 706 P.2d 424, 428 (Colo.App. 1985).
V.
[71] Finally, defendants contend that the trial court’s order changing venue was procedurally flawed because no formal motion or affidavit had been filed at the time the court granted the motion. These procedural flaws, they contend, obligated the El Paso County district court to return venue to the Fremont County district court, and therefore, the judgment of the trial court must be reversed. Again, we disagree.