Iowa and Minnesota Supreme Courts Decide Closely Watched Libel Cases

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The supreme courts of both Iowa and Minnesota recently issued two decisions favoring freedom of expression, with the Iowa Supreme Court holding that a nontraditional self-publishing company was a "media defendant" entitled to various First Amendment protections, Bierman v. Weier, No. 10-1503, 2013 WL 203611 (Iowa Jan. 18, 2013), and the Minnesota Supreme Court holding that it's not actionable to call a neurologist with an allegedly poor bedside manner a "real tool," McKee v. Laurion, No. A11-1154, 2013 WL 331558 (Minn. Jan. 30, 2013).

Bierman v. Weier

Bierman involved a book written by Scott Weier and published by Author Solutions, Inc. (ASI), which Faegre Baker Daniels represented. The book described Scott's renewed relationship with God and resulting worldview after a messy divorce. Beth Weier, Scott's ex-wife, and her father, Gail Bierman, sued Scott and ASI, claiming that the book defamed them by accusing Gail of molesting Beth during her childhood and by stating that Beth suffered from mental illness as a result. Plaintiffs alleged libel, false light invasion of privacy and intentional infliction of emotional distress (IIED).

On cross motions for summary judgment, the district court held that the statements were libelous per se and that the case could proceed to trial on a theory of strict liability—that is, the libel claim elements of falsity, fault and damage could be presumed—because neither defendant was a member of the media. (Under U.S. Supreme Court precedent, such presumptions have not been allowed against traditional media organizations such as newspapers.) With regard to ASI in particular, the court stated,

"ASI is not the New York Times, or any other media entity. Rather it is a business which contracts to publish documents for private authors. And while its authors may, in some instances have first amendment rights, the rights retained by ASI have nothing to do with the First Amendment…Accordingly…the only element the Plaintiffs would have to prove is publication."

Bierman, 2013 WL 203611, *3 (quoting district court). The district court also held that, even in the absence of these presumptions, issues of fact existed on each element of plaintiffs' libel claims (rendering summary judgment inappropriate), as well as on plaintiffs' false light claim. The district court did grant ASI's motion on the IIED claim, although it allowed plaintiffs' similar claim against Scott to proceed.

On interlocutory appeal, ASI argued for reversal on both narrow and broad grounds. Narrowly, it argued that even under current law, it was clearly a media defendant entitled to First Amendment protections. Broadly, it argued that the court should abrogate libel per se and abolish the media/nonmedia defendant distinction. The Iowa Supreme Court agreed with ASI on its first point, establishing a new test applicable to defendants that do not "report news" but claim to be "media defendants":

A person or entity like ASI whose regular practice is to (1) receive written materials prepared by a number of different third parties and (2) make finished products from the materials that are designed to be more suitable and accessible for the public to read should be considered a publisher and a media defendant for purposes of our case law.

Id.*20. The court further held that ASI fit squarely within this definition, that presumptions of falsity, fault and damage could not be made against it consistent with the First Amendment, and that plaintiffs had failed to prove up damages sufficient to survive summary judgment.

However, the court rejected defendants' argument that Iowa should abolish libel per se entirely. It held that neither the U.S. Constitution nor the Iowa Constitution compelled such a result. It also addressed public policy arguments for and against libel per se, holding that the doctrine is useful "in an area where it is often difficult for a plaintiff to prove actual damages," and stating that "[w]e are not persuaded…that the Internet's ability to restore reputations matches its ability to destroy them." Id. at *15. Because the court retained libel per se and because Scott did not qualify as media defendant under the court's new test, it allowed the case against him to proceed.

McKee v. Laurion

McKee arose after defendant Dennis Laurion perceived his father's doctor to be rude and insensitive and posted about his interaction with the doctor on a "rate-your-doctor" website. The doctor sued for defamation per se and interference with business, citing six specific statements that essentially boiled down to: (1) the plaintiff had made arguably callous remarks about the survival rate of stroke victims; (2) he had been insensitive to the father's (and family's) embarrassment over a skimpy hospital gown; (3) he did not take time to talk to the family or consider their questions about the need for therapy; and (4) a nurse subsequently told the defendant that "Dr. McKee is a real tool!"

On summary judgment, the district court granted defendant's motion and dismissed the doctor's claims with prejudice, holding that the statements lacked defamatory meaning and that the statements were either protected opinion or substantially true or too vague to convey a defamatory meaning. The court of appeals affirmed dismissal of the interference claim but reversed on the defamation claim. It concluded that the statements were factual assertions and not opinions, that there were general issues of material fact as to their falsity, and that they tended to harm the doctor's reputation.

The Minnesota Supreme Court reversed, holding "none of the six statements is actionable either (1) because there is no genuine issue of material fact as to the falsity of the statements or (2) because the statements are not capable of conveying a defamatory meaning that would harm respondent's reputation and lower him in the estimation of the community." McKee, 2013 WL 331558, *1.

With regard to the statements defendant claimed the plaintiff made about survival rates and the hospital gown, the court held that those statements were substantially true because the "gist" or "sting" of each party's version of what was said was the same. Id. at *3.

As to the remaining statements—that the doctor said the patient did not need therapy, that he did not take time to talk to the family, and he was a "real tool"—the court held that the statements were not defamatory. With regard to the "tool" statement in particular, the court held that this was "pure opinion" because it "cannot be reasonably interpreted as stating a fact and it cannot be proven true or false." Id. at *6. The court rejected the argument that because defendant claimed a nurse told him the doctor was a tool the statement was provably false and therefore actionable. It stated that "attributing the statement to an unidentified nurse does not add defamatory meaning to the statement." Id.