Spreadbury v. Bitterroot Public Library et al

Filing 126

REPLY to Response to Motion re 108 MOTION for Summary Judgment DEFENDANT LEE ENTERPRISES INC'S MOTION FOR SUMMARY JUDGMENT ON REMAINING COUNTS DEFENDANT LEE ENTERPRISES, INC.'S REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARYJUDGMENT ON REMAINING COUNTS filed by Lee Enterprises Incorporated. (Attachments: # 1 Exhibit A) (Smith, Jeffrey)

Jeffrey B. Smith

GARLINGTON, LOHN & ROBINSON, PLLP
350 Ryman Street'P. O. Box 7909
Missoula, MT 59807 -7909
Telephone (a06) 523-2500
Telefax [phone]
j bsmith@garlington. com
Attorneys for Defendant, Lee Enterprises, Inc.

IN TFIE I-INITED STATES DISTRICT COURT
FOR TFM DISTRICT OF MONTANA
MISSOULA DIVISION
Cause No.

MICHAEL E. SPREADBLIRY,

CV-l 1 -064-M-DWM

Plaintiff.
V.

BITTERROOT PUBLIC LIBRARY,
CITY OF HAMILTON, LEE
ENTERPRISES, INC., and BOONE
KARLBERG P.C..

DEFENDANT LEE ENTERPRISES,
INC.'S REPLY BzuEF IN SUPPORT
OF MOTION FOR SUMMARY
JUDGMENT
ON REMAINING COI.JNTS

Defendants.

COMES NOW Co-Defendant, Lee Enterprises, Inc. ("Lee Enterprises"),
through its counsel, Garlington, Lohn & Robinson, PLLP, and hereby respectfully

files its Reply Brief in Support of Its Motion for Summary Judgment on Remaining
Counts.

I.

INTRODUCTION

In its Opening Brief, Lee Enterprises argued it was entitled to summary

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judgment regarding the allegations concerning the August9,2010, article, because

it is undisputed the August9,20l0, article was not false. Dkt. 109. In his
response brief, Plaintiff Michael Spreadbury ("Spreadbury") argues there are

material issues of fact precluding summary judgment. First, Spreadbury pointed
out a discrepancy between the original August 9,2010, article and the article which
is currently on the Ravalli Republic website. Lee Enterprises' counsel has
subsequently amended his Foundational Affidavit in Support of Motion for

Summary Judgment on Remaining Counts, appropriately rectiffing the

discrepancy. Dkt. 124.
However, even though the original August 9,2010, article inaccurately states
Spreadbury was convicted of "disturbing the peace," when, in fact, at the time the

article was written, he had been convicted of criminal trespassing - charges which
were subsequently dropped - Lee Enterprises is still entitled to judgment as a
matter of law, because Spreadbury has failed to establish Lee Enterprises defamed
Spreadbury from the inaccurate information, and the remaining portions of the

August 9,2010, article are true, and, therefore, privileged publications.
Secondly, there are no issues of material fact that the alleged defamatory
comments posted on the Ravalli Republic website, regarding the September 10,
2009 article, were made by third-party on-line readers, and not the Ravalli

Republic. As such, Lee Enterprises is immune from liability and entitled to

judgment as a matter of law.

II.

ARGUMENT

Although the August9,2010, article contains an inaccuracy about
Spreadbury's prior criminal conviction, Lee Enterprises is, nevertheless, entitled to
summary judgment because Spreadbury has failed to establish the essential
elements of his remaining claims against Lee Enterprises.

"[T]he plain language of Rule 56(c) mandates the entry of summary

judgment

against aparty who fails to make a showing sufficient to establish

the existence of an element essential to that party's case, and on which that party

willbeartheburdenof proof attrial." CelotexCorp.v. Catrett,477 U.S.317,322
(1e86).

Not all disputes create a genuine issue of material fact. "A dispute as to a
material fact is 'genuine' if there is sufficient evidence for a reasonable jury to
return a verdict for the non-moving party." Freeman v. Arpaio, 125 F .3d 732,735
(9th Cir. 1997) (citation omitted), overruled on other grounds by Ellington v. Dir.

of Corrections,2009 WL 900168, slip op. (E.D. Cal. Mar. 31,2009), Mere
assertions or allegations by the opposing party, without factual support from the

record, are insufficient to defeat summary judgment. Celotex, 477 U.S. at 323324.
Spreadbury contends there are issues of material fact which preclude

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summary judgment. For example, Spreadbury argues there are issues of material

fact regarding whether the Hamilton Library owns its property and whether
Spreadbury was abusive with Lee Enterprises' staff (Dkt.

II5-2, 'll] 2l -26).

However, these arguments are without merit and have nothing to do with
Spreadbury's remaining allegations against Lee Enterprises. Like the rest

of

Spreadbury's claimed issues of fact, which are individually dismantled below,
these alleged disputes are not genuine, and are simply assertions, without factual

support, insufficient to defeat summary judgment. See Celotex,477 U.S. a|323324.

l.

Count 19: Defamation.

Lee Enterprises is entitled to judgment as a matter of law, because it is

undisputed Spreadbury has failed to establish he was defamed by the August 9,
2010, article and the comments on the Ravalli Republic website were made by

third-party on-line readers.

a.

Defamation. as to the August 9.2010 article.

Montana Code Annotated 5 27-l-802 (2011) defines libel:

Libel is a false and unprivileged publication by writing,
printing, picture, effigy, or other fixed representation that
exposes any person to hatred, contempt, ridicule, or obloquy
or causes a person to be shunned or avoided or that has a
tendency to injure a person in the person's occupation.

Although the August 9, 2010, article inaccurately stated Spreadbury was

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previously convicted of "disturbing the peace," when it should have read "criminal
trespass," Lee Enterprises is still entitled to summary judgment because it is

undisputed Spreadbury has not established the inaccurate information exposed him

to "hatred, contempt, ridicule, or obloquy or fcaused him] to be shunned or
avoided or that" the inaccuracy injured his occupation. Instead, Spreadbury only
offers mere assertions, without factual support from the record, which are

insufficient to defeat summary judgment. See Celotex,477 rJ.S. at323-324.
More specifically, Spreadbury has failed to establish exposure to such
damages from the time the article was published and when the Ravalli Republic

published the correction. Spreadbury asked the Ravalli Republic to make the
appropriate correction to the August 9, 2010 article. Dkt. 110 at fl 33.

Accordingly, the Ravalli Republic made a correction in an August24,2010, article

(Dkt. I l0 at lT 34.). Spreadbury claims the correction is insufficient

as

it "did not

mention, or correct the published error and falsehood stating I was convicted

of

Disturbing the Peace." Dkt. I l5-2 at tT 18. However, the correction clearly
provides, "An article on the front page of the Aug. 9 edition of the Ravalli

Republic incorrectly identified a charge against Hamilton resident Michael
Spreadbury. The article should have stated that Spreadbury was appealing a
conviction of criminal trespassing, . . ." Dkt. 124-10 at2. Moreover, the August 9,
2010, article, currently available on-line, accurately depicts that Spreadbury, at the

time of the article, had been convicted of criminal trespass, not disturbing the
peace. Dkt. 124-8.
Spreadbury has not alleged, let alone established, he suffered any damages

during this time period. Rather, his claims for alleged damages focus on the on-

line comments which were made in the September 10, 2009, article and an August
20,2009, article which reported on the criminal trespass charges. Dkt. 90.
Further, the August9,2010, article could not have effected Spreadbury's
occupation since he had already lost his job and candidacy for mayor of the City

of

Hamilton. Dkt. 90 at 1t74.
Further, Spreadbury could not have been defamed by the inaccuracy in the

August 9,2010, article, because "disturbing the peace" is a lesser offense than
what Spreadbury had actually been convicted of at the time of the article. Montana
Code Annotated $ 45-6-203 (201l) provides: "[a] person convicted of the offense

of criminal trespass to property shall be fined not to exceed $500 or be imprisoned
in the county

jail for any term not to exceed

6 months, or

both." In contrast, the

punishment for a person convicted of the offense of disturbing the peace, or

disorderly conduct, generally shall not exceed $100 or be imprisoned in the county

jail for a term not to exceed l0 days, or both.
101

(201l). Stating Spreadbury

See Mont. Code Annotated $ 45-8-

had been convicted of a lesser offense could not

have exposed him to such damages, as required in a defamation claim.

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It should also be noted that, although the August 9,2010, article mistakenly
states Spreadbury was convicted of disturbing the peace, later in the article

it

correctly states, "Spreadbury was found guilty this winter of criminal trespass in
an incident at the Bitterroot Public

Library." Dkt.

123, Ex. K, page 2(emphasis

added). The article subsequently provides, while summarizing arguments made by
Spreadbury, "[t]he entire case, he said, was without merit since it ought to be

impossible to charge someone for trespassing in a public space. What if Bell
wanted to prosecute Spreadbury for trespassing while in court, Spreadbury asked."

Dkt. 124-11 at 2 (emphasis added). Clearly, the August 9, 2010, article could not
have exposed Spreadbury to the requisite damages for his defamation claim when

the article itself provides Spreadbury was previously convicted of criminal
trespassing.
Lee Enterprises is also entitled to summary judgment as a matter of law since
Spreadbury has failed to establish Lee Enterprises acted with malice in publishing
the August9,2010 article, as Spreadbury was a limited public figure who

voluntarily injected himself into his own public controversy. See Gertz v. Robert
Welch,

lnc.,418 U.S. 323 (1974); Kurth v. Great Falls Trib. Co.,246 Mont. 407,

409-410, 804

P

.2d 393, 394-395 ( l99l ).

Finally, the remaining portions of the August 9,2010, article are privileged
communications. Section 27-I-804(4), "makes a fair and true report without

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malice of a judicial proceeding a privileged publication." Cox v. Lee Enters., Inc.,
222 Mont. 527 , 529, 723

P

.2d 238, 239-240 ( 1986).

Spreadbury claims the August9,2010, article is false concerning the amount

of money Spreadbury was suing for, arguing it incorrectly describes
spralling [sic] $3.6 million

cases

Dkt. 115-2 atn

n.

However, Spreadbury

takes the August9,2010, report out of context. The report referenced the amount

of money Spreadbury was seeking in numerous cases filed against the county's
civic and municipals officials. Dkt. 124-11. This was true, as Spreadbury had
recently filed a suit in Federal Court seeking $3.6 million against such defendants.
SeeEx. A: Compl.

& Demand Jury Tr., Spreadbury v. Hoffmarz (U.S,D.C., Dist. of

Mont., Missoula Div. May Il,2010). Although the August 9,2010, article may
have inaccurately infened Spreadbury was seeking $3.6 million in the state court

actions, it is still true that Spreadbury was concurently seeking $3.6 million.

Similarly, Spreadbury claims "[t]he August 9,2010 article falsely indicated
that Hamilton City Attomey Bell's actions of November 20,2009 acting within

a

civil courtroom were '. . . the normal scopes of duties . . .' of a city prosecutor
although a crime of Official Misconduct in Montana . . . ." Dkt. I l5-2 at fl 13.

Again, Spreadbury takes the August9,2010, article out of context. A simple
reading of the article shows it was summarizing the argument of Bell's attorney.
The August9,2010, article provided the City's attorney said, "Bell's actions fell

within the normal scope of duties of a city attorney." Dkt. 124-ll at2. A review
of the transcript clearly shows this is what Bell's attorney argued and, therefore,
the

August9,20l0, article was not false.
Similarly, Spreadbury's argument that the August 9,2010, article incorrectly

indicates Spreadbury said Mr. Fullbright supervised Law Student Angela
Wetzsteon, is without merit. The transcript from the proceedings indicates
Spreadbury said,

"If he [Mr. Corn] was sitting at his desk right over here and

Angela Wetzsteon was downstairs in the Justice Courts, outside of the speedy trial
time period, eight months into a trial, I don't see how George Corn is entitled to
any immunity whatsoever." Dkt. 124-4

at7:7-ll.

Later, Spreadbury argued Ms.

Wetzsteon was not getting clinical instruction because Mr. Corn was outside of the

courtroom. "It's clinical instruction. You're not getting clinical instruction when
you're standing there alone. You're not being watched." Dkt. 124-4 at 10:21-23.
The Augusl9,20l0, article summarized Spreadbury's arguments - that he
disagreed with the way in which Wetzsteon was supervised, or the lack thereof.

Accordingly, Lee Enterprises is entitled to judgment as a matter of law
concerning Spreadbury's claims of defamation from the August 9,2010, article.
Spreadbury has failed to establish how any inaccuracy in the August 9,2010,

article exposed him to the requisite damages, andlor that Lee Enterprises had the
requisite intent in mistakenly publishing the inaccuracy, as Spreadbury was a

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limited public figure who voluntarily injected himself into his own public
controversy. Furtherrnore, the remaining information reported in the August 9,
2010, article is true, based on

b.

a

judicial proceeding and, therefore, privileged.

Defamation. as to the comments posted on the Raval/i
Republic's W ebsite.

It is undisputed the comments posted on the Ravalli Republic' s website were
made by third-party, on-line readers. Accordingly, Lee Enterprises is entitled to

judgment as a matter of law.

"section 230 of the CDA fCommunications Decency Act] immunizes
providers of interactive computer services against liability arising from content
created by third parties." Fair Hous. Council of San Fernando Valley v.
Roommates.Com,

LLC,52l F.3d 1157,1162 (9th Cir. 2008). Specifically,

$ 230(c) provides:

"[n]o 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). Lee Enterprises' opening brief
thoroughly set forth the purpose of the CDA and gave specific case examples in
order to show Lee Enterprises should be considered an "interactive computer

service," and, therefore, immune from liability as to the claim that Lee Enterprises
published defamatory comments about Spreadbury on the Ravalli Republic
website.

In response, Spreadbury argues "Publishers of newspaper such as Defendant

10
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Lee fEnterprises], are found liable for

'. . . publishing or distributing

obscene or

defamatory material written by others." Dkt. 115-l at 4 (citing Batzel v. Smith,
333 F.3d 1018, 1026 (9th Cir. 2003).) However, Spreadbury takes the quote from

Batzel out of context. In Batzel, the Ninth Circuit was explaining the purpose
behind Congress' enactment of the CDA. The Court in Batzel did not, as implied

by Spreadbury, hold newspapers are exempt from the CDA. Rather, the Court was
explaining the policy of the CDA and clarifoing it applied to cyberspace, and not
printed material. See Batzel,333 F.3d at 1026.
Spreadbury also argues Lee Enterprises is not an internet service provider,
and accuses Lee Enterprises of misleading the Court in citing to Carafano v.

Metrosplash.com, lnc.,339 F.3d 1119, I122 (9th Cir. 2003), in support of its

claim. Dkt. 115-1 at 4. However, Spreadbury fails to recognize courts have
defined "computer service provider" broadly, which was the purpose for citing
Carafano.
The definition of "interactive computer service" includes a wide range
cyberspace services

. Carafano,339

F.3d at

ll23 ("reviewing courts

have treated

$ 230(c) immunity as quite robust, adopting a relatively expansive definition
'

of

of

interactive computer service"').

More specifically, courts have defined newspapers, or similar businesses
which publish articles on-line, as interactive computer services as defined under

il
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the CDA. InCollins v. Purdue (Iniversity,703 F. Supp. 2d862 (N.D. Ind. 2010),
the U.S. District Court dismissed Collins' case, alleging the University defamed

him by publishing comments made on the University newspaper website, because
the comments were made by third-party, on-line readers and the newspaper was an
interactive computer service. In Nemet Chevrolet, Ltd. v. Consumeraffairs.com,

Inc., 591F.3d 250, 254 (4th Cir.2009), the Fourth Circuit determined
Consumeraffairs.com was immune from liability under the CDA and, in doing so,
dismissed Nemet's case against Consumeraffairs.com, alleging defamation and

tortious interference with business expectancy, for publishing posts made by third
parties regarding Nemet's car business.

Most recently, in Miles v. Raycom Media, Inc.,2010 WL 3419438 at *3, slip
op. (S.D. Miss. Aug. 26,2010), the U.S. District Court dismissed Miles' claim

of

defamation against her former employer, because the employer was immune from

liability under the CDA, and could not be liable for comments made by third
parties to a story on its website.

Moreover, it is undisputed that the Ravalli Republic did not encourage the
alleged defamatory comments. Dkt. 110 at 17.

"[A]

service provider is

"responsible" for the development of offensive content only if it in some way
specifically encourages development of what is offensive about the content."
F.T.C. v. Accusearch lnc.,570 F.3d I 187,

ll99

(1Oth Cir. 2009); see also

tz
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Carafano,339 F.3d at

ll24 ("Under $ 230(c), therefore, so long as a third party

willingly provides the essential published content, the interactive service provider
receives

full immunity regardless of the specific editing or selection process.").

As explained in its opening brief, the Ravalli Republic could also be
considered an "information content provider" because it published the September

10,2009, article which sparked the alleged defamatory comments on its website.
Nevertheless, Lee Enterprises would still be immune from liability, since the
alleged defamatory comments were made by third parties. See Cardano,339 F.3d

1l l9 (even if a party is considered an information content provider, $ 230(c)
precludes treatment of a publisher

if the information was provided by another

information content provider).

A website operator can be both a service provider and a content
provider: if it passively displays content that is created entirely
by third parties, then it is only a service provider with respect to
that content. But, as to content that it creates itself, or is
"responsible, in whole or in part" for creating or developing, the
website is also a content provider. Fqir Hous. Council, 521F.3d
at 1162.
Even though the newspaper provided the September 10,2009, article which
sparked the allegedly defamatory comments, the Ravalli Republic is still immune

from liability because it did not create or develop the posted comments, nor did it
encourage the readers to comment on the articles in a defamatory manner.

In summary, Lee Enterprises is immune from liability under the CDA and

13
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entitled to judgment as a matter of law. The Ravalli Republic's website is an
interactive computer service as defined by the CDA. It is undisputed that the
alleged defamatory comments to the September 10,2009, article were made by

third parties and the Ravalli Republic did not encourage the alleged defamatory
comments. Dkt. 110 at tlfl 14-17. Accordingly, Lee Enterprises cannot be liable
for publishing the comments made by third parties, and they are entitled to
judgment as a matter of law.

2.

Spreadbury's Remaining Counts Fail As A Matter of Law.

Since Lee Enterprises is entitled to summary judgment concerning

Spreadbury's claims of defamation for comments made by third parties on Ravalli
Republic' s website, and for the August 9,2010, article, Lee Enterprises is entitled

to summary judgment on all remaining counts.
Regarding Spreadbury's claims of tortious interference with prospective
advantage and negligence, Lee Enterprises has committed no wrongful acts and

owed no duty to Spreadbury concerning the comments posted by third parties on
the Ravalli Republic website, and Spreadbury has failed to establish the August 9,

2010, article exposed him to the requisite damages, and/or that Lee Enterprises had
the requisite intent in publishing the article to support Spreadbury's claims.

Likewise, Spreadbury's claims of intentional and negligent infliction of emotional
distress fail as a matter of law, because he has failed to establish sufficient

14
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evidence for such claims. Finally, Spreadbury's claim for injunctive relief fails
since he is not entitled to the relief demanded and, similarly, he is not entitled to

punitive damages once the other Counts are dismissed, as a claim for punitive
damages cannot stand alone.

ru. CONCLUSION
Lee Enterprises is entitled to judgment as a matter of law with respect to the

remaining Counts against Lee Enterprises contained in Spreadbury's Second
Amended Complaint. It is undisputed the on-line comments complained of in
Spreadbury's Second Amended Complaint were made by third parties, not the

Ravalli Republic. Further, Spreadbury has failed to present any evidence, let alone
establish, that Lee Enterprises' act of misstating Spreadbury's prior criminal

conviction in the August 9,2010, article exposed him to the requisite damages for
his defamation claim, and/or that Lee Enterprises had the requisite intent in
mistakenly publishing the inaccuracy, as Spreadbury was a limited public figure
who voluntarily injected himself into his own public controversy. Accordingly,
Lee Enterprises cannot be liable for Spreadbury's remaining claims, and Lee
Enterprises is entitled to judgment as a matter of law.

DATED this 20th day of October. 2011.

lsl

Jeffiev B. Smith
Attorneys for Defendant, Lee Enterprises, Inc.

l5
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CERTIFICATE OF COMPLIANCE

PursuanttoL.R.T.l(dX2XE),Icerti$'thatthisDefendantLeeEnterprises,
Inc.'s Reply Brief In Support of Motion for Summary Judgment on Remaining
Counts is printed with proportionately spaced Times New Roman text typeface

l4 points;
Word

of

is double-spaced; and the word count, calculated by Microsoft Office

2007 ,

is 3247 words long, excluding Caption, Certificate of Service and

Certifi cate of Compliance.

lsl

Jeffrey B. Smith
Attorneys for Defendant, Lee Enterprises, Inc.

16

CERTIFICATE OF SERVICE
I hereby certiff that on October 20th,2011, a copy of the foregoing document
was seryed on the following persons by the following means:

I.3
2

CM/ECF
Hand Delivery

Mail
Overnight Delivery Service
Fax

E-Mail

l.

Clerk, U.S. District Court

2

Michael E. Spreadbury
P.O. Box 416
Hamilton, MT 59840
Pro Se Plaintiff

3,

William L. Crowley
Natasha Prinzing Jones
Thomas J. Leonard
bcrowl ey @boonekarlberg. com
npj ones@boonekarlberg. com
tleonard@boonekarlberg. com
Attorneys for Defendants Bitterroot Public Library, City of Hamilton, and
Boone Karlberg P.C.

lsl

Jeffrev B. Smith
Attorneys for Defendant, Lee Enterprises, Inc.

l7
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