Day on Torts
In Winslow v. Saltsman, No. M2014-00574-COA-R3-CV (Tenn. Ct. App. Oct. 21, 2015), plaintiff brought claims against two defendants, a political candidate and his campaign advertising consultant, alleging false light and defamation. Finding that the defendants negated the element of actual malice, the Court of appeals affirmed summary judgment for defendants.
Plaintiff was Chief of Staff for the Tennessee Republican Party (TRP) and was given an employment agreement by his boss before she resigned to run for Congress. The new TRP chair offered plaintiff a different position, but instead plaintiff chose to negotiate a severance based on his employment agreement and leave his employment with the party. Shortly thereafter, he began working for his old boss’s campaign. The defendant democratic candidate for the Congress seat hired the defendant consultant for advertising, and at some point the consultant obtained copies of a financial review of the TRP, plaintiff’s employment agreement, and a document drafted by plaintiff while negotiating his severance. These documents showed that the TRP had extensive debt and overdrafts.
Before the primary elections, the democratic campaign ran advertisements on TV and in print stating that the opposing candidate and former TRP chair “left the state Republican party over $100,000 in debt” and “gave her future Congressional campaign staff lavish bonuses.” In a radio interview, defendant consultant stated that plaintiff “was paid out of Republican Party funds for three months while he was working for [his former boss’s] campaign,” and that such an arrangement was “at worse, illegal and, at best, just plain wrong.” The democratic campaign also launched a website where they published the TRP financial records, records showing payments to plaintiff, plaintiff’s employment agreement and the document he drafted when negotiating his severance. Based on these statements, plaintiff filed suit against the democratic candidate and his consultant for false light.
To prove his claim, plaintiff had to show that the false light he was placed in “would be highly offensive to a reasonable person” and that defendants “acted in reckless disregard as to the falsity of the publicized matter and the false light in which [plaintiff] would be placed.” Importantly, here plaintiff conceded that he was at least a limited public figure, so the standard for his false light claims was actual malice. “Actual malice exists where the defendant publishes or makes a statement with knowledge that it was false or with reckless disregard of whether it was false or not.” (internal quotations and citation omitted). Failure to investigate information alone, however, is not enough to establish actual malice.
Here, the Court looked at each defendant’s motion for summary judgment individually. As to the consultant, in his statement of undisputed facts, the consultant asserted that he “believed that the factual elements of the statements in issue that he made…were true or substantially true;” that he did not endorse any statement “with knowledge that such statement was false;” that he “had a good faith belief that the statements and advertisements…were true as reflected by news reports and articles, [financial] reports, plaintiff’s employment agreement, and the financial information concerning the TRP;” that he received no information suggesting his statements were false; and that he “acted in good faith and without malice.” The Court found that these assertions were enough to negate the essential element of actual malice, and that the consultant had shifted the burden to plaintiff to show genuine issues of material fact related to actual malice.
In plaintiff’s response to consultant, he apparently spent almost half of his paragraphs detailing a history of conflict and ill-feelings between himself and consultant. In direct response to consultant’s facts, plaintiff produced responses that were “largely argumentative and unresponsive to the particular facts relied upon by [consultant] as pertinent to the issue of actual malice.” Plaintiff’s response contained statements such as consultant “does not understand and has not presented the factual elements,” “[t]his statement is itself false and compound,” and consultant’s “subjective state of mind is not a ‘fact.’” The Court found that nothing in plaintiff’s responses “put at issue whether [consultant] acted with knowledge or reckless disregard with respect to the veracity of his statements.” Further, the Court noted that in regards to the extensive detail given by plaintiff about his history with consultant, plaintiff was potentially confusing the concept of actual malice with “personal ill will, hatred or spite.” The Court found that plaintiff “did not point to overlooked evidence, rehabilitate evidence, produce any additional evidence establishing a genuine issue, or submit an affidavit explaining the necessity of further discovery.” Because actual malice was necessary for a false light claim or any other defamation claim and defendant had negated that element, summary judgment for consultant was affirmed.
As to the defendant candidate, in his statement of facts he pointed out that he did not adopt or repeat the statements made during the radio interview; that he “did not make or endorse any statement or advertisement with knowledge that such statement was false;” that he “had a good faith belief that the statements and advertisements…were true as reflected in [the documents];” and that he never received information that statements or advertisements were false. In response, on several paragraphs plaintiff simply said that the facts were “disputed” with no record citation and in one instance listed his arguments as to why defendant was not believable. The Court found that the candidate’s statement of material facts had negated the actual malice element, and that here also plaintiff had failed to carry his burden of showing a genuine issue of material fact. Accordingly, the Court affirmed summary judgment for the candidate as well.
Opposing summary judgment on the issue of actual malice is tricky. The standard for actual malice is high, and the facts needed to establish it may be virtually impossible to obtain because they are in defendant’s head. If defendant asserts in his statement of facts that he believed the statements were true and had no reason not to believe it, a plaintiff may have a difficult time responding in a way that creates a genuine issue of material fact. Here, though, the plaintiff clearly fell short of the required showing. Simply responding that facts are disputed with no record citations and no additional evidence will not be enough to survive a motion for summary judgment. As the Court here pointed out, plaintiff needed to “point to overlooked evidence, rehabilitate evidence, produce any additional evidence…, or submit an affidavit explaining the necessity of further discovery.” Bare assertions that an opponent’s facts are disputed will simply not survive a motion for summary judgment.