Spreadbury v. Bitterroot Public Library et al

Filing 181

FINDINGS AND RECOMMENDATIONS re 108 MOTION for Summary Judgment DEFENDANT LEE ENTERPRISES INC'S MOTION FOR SUMMARY JUDGMENT ON REMAINING COUNTS filed by Lee Enterprises Incorporated. Objections to F&R due by 12/19/2011 Signed by Jeremiah C. Lynch on 11/30/2011. (TCL, ) Modified on 12/2/2011 to reflect copy mailed to Spreadbury this date (APP, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
_____________________________________________
MICHAEL E. SPREADBURY,

CV 11-64-M-DWM-JCL

Plaintiff,
vs.

FINDINGS AND
RECOMMENDATIONS

BITTERROOT PUBLIC LIBRARY,
CITY OF HAMILTON,
LEE ENTERPRISES, INC.,
BOONE KARLBERG, P.C.,
DR. ROBERT BROPHY, TRISTA SMITH,
NANSU RODDY, JERRY STEELE,
STEVE SNAVELY, STEVEN BRUNER-MURPHY,
RYAN OSTER, KENNETH S. BELL, and JENNIFER LINT,
Defendants.
_____________________________________________
Before the Court is Defendant Lee Enterprises, Inc.’s Fed. R. Civ. P. 56
motion for summary judgment upon Plaintiff Michael Spreadbury’s second
amended complaint. For the reasons stated, the Court recommends that Lee
Enterprises’ motion be denied with respect to Spreadbury’s claims that are
predicated upon Lee Enterprises’ August 9, 2010 newspaper article which reported
that Spreadbury had been convicted of disturbing the peace. Lee Enterprises’
motion, however, should be granted in all other respects.

1

I.

INTRODUCTION
This action arises from Spreadbury’s use of the Bitterroot Public Library in

Hamilton, Montana. In May or June, 2009, Spreadbury presented a document to
the library staff that he wanted to be maintained in the library. Defendant Nansu
Roddy, the library’s assistant director, refused Spreadbury’s request.
Spreadbury escalated his dispute with Roddy and the library by engaging in
continued confrontational interactions with library staff. As a result of his conduct
he was banned from the library.
Despite being banned, Spreadbury returned to the library on August 20,
2009, which led to further consequences. Defendant Kenneth Bell, the Hamilton
City Attorney, filed a criminal complaint charging Spreadbury with criminal
trespass.
Undeterred, Spreadbury continued to exacerbate his legal problems when he
confronted Roddy outside the library later in 2009. As a result of that behavior,
Roddy obtained an order of protection against Spreadbury from the Hamilton City
Court, and Spreadbury was charged with felony intimidation on November 17,
2009.

2

On February 18, 2010, Spreadbury was found guilty of the criminal trespass
charge after a jury trial.1 Dkt. 152-22. Then, on October 15, 2010, Spreadbury
entered a plea of no contest to the felony intimidation charge. Dkt. 12-4.
Spreadbury was running as a candidate for mayor in Hamilton when some
of the events giving rise to this action transpired. Lee Enterprises owns the
Ravalli Republic newspaper in Hamilton, and on September 10, 2009, it published
an article in the newspaper and on its internet website regarding Spreadbury’s
conviction for criminal trespass. Spreadbury alleges unidentified third parties
posted comments on the internet making derogatory or defamatory statements
about him. Spreadbury was defeated in the mayoral election on November 3,
2009.
Spreadbury advances 26 claims for relief against the various Defendants.
His pleading sets forth claims under 42 U.S.C. § 1983 for violations of his rights
under the United States Constitution, as well as other claims under Montana law.
Spreadbury requests injunctive relief, and an award of compensatory and punitive
damages.

1

In view of the order of protection obtained by Roddy, and the ban imposed
against Spreadbury prohibiting him from returning to the library, Defendant Bell
later moved to dismiss the criminal trespass charge. On August 16, 2010, the state
district court granted the motion and dismissed the charge. Dkt. 152-27.
3

II.

PROCEDURAL BACKGROUND
Lee Enterprises previously filed a Fed. R. Civ. P. 12(b)(6) motion to dismiss

Spreadbury’s claims against it. On July 28, 2011, this Court entered its Findings
and Recommendations regarding Lee Enterprises’ motion, and by Order entered
October 4, 2011, the District Court dismissed Spreadbury claims: (1) under 42
U.S.C. § 1983, (2) for defamation based on Lee Enterprises’ privileged reports of
Spreadbury’s judicial proceedings, (3) for defamation per se based on Lee
Enterprises’ report of Spreadbury’s conviction for criminal trespass, and (4) for
negligence per se.
Certain of Spreadbury’s claims against Lee Enterprises, however, survived
dismissal — including Spreadbury’s claim of defamation based on comments
posted on Lee Enterprises’ internet website in connection with its September 10,
2009 news article about Spreadbury. That claim, in turn, sufficiently supported
Spreadbury’s claims for negligence, tortious interference with prospective
economic advantage, negligent and intentional infliction of emotional distress,
punitive damages, and injunctive relief.
In the interim, on August 10, 2011, the Court granted, in limited part,
Spreadbury’s motion requesting leave to file his second amended complaint.

4

Specifically, the Court permitted a new claim of defamation stemming from an
article Lee Enterprises published on August 9, 2010. The claim alleges as follows:
In a Ravalli Republic article dated August 9, 2010 false statements are made
about criminal behavior, prior lawsuits filed, and comments made by
Plaintiff in oral arguments before Judge Larson, in the 21st Judicial district
court.
Dkt. 90 at ¶ 89. The Court denied Spreadbury leave to add any other claims
against Lee Enterprises, and expressly stated that Spreadbury’s second amended
complaint “is subject to the terms of” the August 10, 2011 Order. Dkt. 85 at 14.
In sum, Spreadbury’s only remaining claims against Lee Enterprises are
predicated upon his allegations of (1) defamatory comments published on the
internet in connection with Lee Enterprises’ September 10, 2009 news article, and
(2) defamatory statements published in Lee Enterprises’ August 9, 2010 news
article, and defamatory comments published on the internet about that article.
III.

APPLICABLE LAW
A. Summary Judgment Standards
Federal Rule of Civil Procedure 56(a) entitles a party to summary judgment

“if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” A movant may satisfy this
burden where the documentary evidence produced by the parties permits only one
conclusion. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 251 (1986).
5

A party moving for summary judgment who does not have the burden of
persuasion at trial, must produce evidence which either: (1) negates an essential
element of the non-moving party’s claim, or (2) shows that the non-moving party
does not have enough evidence of an essential element to ultimately carry his
burden at trial. Nissan Fire & Marine Ins. Co. Ltd. v. Fritz Companies, Inc., 210
F.3d 1099, 1102 (9th Cir. 2000).
Once the moving party has satisfied its burden, the non-moving party must
go beyond the pleadings and designate by affidavits, depositions, answers to
interrogatories, or admissions on file, “specific facts showing that there is a
genuine issue for trial.” Celotex Corp. v. Cattrett, 477 U.S. 317, 324 (1986). A
party opposing summary judgment must identify evidence establishing that a
dispute as to a particular material fact is genuine. Matsushita Electric Industrial
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opponent “must
do more than simply show that there is some metaphysical doubt as to the material
facts.” Id. The party opposing the motion “may not rest upon the mere allegations
or denials of his pleading, but . . . must set forth specific facts showing that there is
a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).

6

“In considering a motion for summary judgment, the court may not weigh
the evidence or make credibility determinations, and is required to draw all
inferences in a light most favorable to the non-moving party.” Freeman v. Arpaio,
125 F.3d 732, 735 (9th Cir. 1997), abrogated on other grounds as noted in Shakur
v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008).
Finally, because Spreadbury is proceeding pro se the court must construe his
pro se documents liberally and give him “the benefit of any doubt.” Frost v.
Symington, 197 F.3d 348, 352 (9th Cir. 1999). See also Erickson v. Pardus 551
U.S. 89, 94 (2007).
B. Application of Montana Substantive Law
Spreadbury has properly invoked the federal question jurisdiction of this
Court under 28 U.S.C. § 1331 by advancing a claim under 42 U.S.C. § 1983
against all the Defendants in this action. Thus, the Court possess supplemental
jurisdiction under 28 U.S.C. § 1367(a) over Spreadbury’s claims founded in
Montana law. In exercising supplemental jurisdiction over state law claims, the
Court must apply state substantive law to the same extent as if it were exercising
diversity jurisdiction. Bass v. First Pacific Networks, Inc., 219 F.3d 1052, 1055
n.2 (9th Cir. 2000).

7

If an issue of state law arises and “the state’s highest court has not
adjudicated the issue, a federal court must make a reasonable determination of the
result the highest state court would reach if it were deciding the case.” Medical
Laboratory Mgmt. Consultants v. American Broadcasting Companies, Inc., 306
F.3d 806, 812 (9th Cir. 2002) (citations omitted). In doing so, the court must “look
to existing state law without predicting potential changes in that law.” Ticknor,
265 F.3d at 939 (citation omitted). The court should also rely on other persuasive
authorities including treatises and decisions from other jurisdictions, as guidance.
Strother v. Southern California Permanente Medical Group, 79 F.3d 859, 865 (9th
Cir. 1996).
IV.

DISCUSSION
A. Defamation and Defamation Per Se
The tort of defamation — which is defined by statute in Montana — occurs

through either libel or slander. Mont. Code Ann. § 27-1-801. Spreadbury’s
claims against Lee Enterprises are all based upon alleged libelous publications.2
Libel is defined as:
a false and unprivileged publication by writing, printing, picture, effigy, or
other fixed representation that exposes any person to hatred, contempt,

2

“Slanderous words are spoken words, whereas libelous words are written.”
Tindall v. Konitz Contracting, Inc., 783 P.2d 1376, 1382 (Mont. 1989).
8

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.
Mont. Code Ann. § 27-1-802.
Certain publications or statements, however, are privileged and, therefore,
do not constitute defamation. Montana law provides that a “privileged
publication” includes one made “by a fair and true report without malice[3] of a
judicial, legislative, or other public official proceeding or of anything said in the
course thereof.” Mont. Code Ann. § 27-1-804(4). If there is no dispute about the
content of the judicial proceedings on which a report is based, then the issue of
whether a particular report is privileged is a question of law for the court. Lence v.
Hagadone Investment Co., 853 P.2d 1230, 1237 (Mont 1993), overruled on other
grounds by Sacco v. High Country Independent Press, Inc., 896 P.2d 411, 423-24,
429 (Mont. 1995). A newspaper’s publication of articles describing allegations in
a judicial proceeding are privileged as a matter of law under section 27-1-804(4).
Lence, 853 P.2d at 1237. The privilege protects reports of facts or allegations in

3

In defamation actions, malice is defined as the “reckless disregard for the
truth but such malice does not include hatred, personal spite, ill-will, or a desire to
injure.” Rasmussen v. Bennett, 741 P.2d 755, 758 (Mont. 1987). In these
summary judgment proceedings Spreadbury has failed to present any evidence on
which a jury could conclude that Lee Enterprises published any of its news articles
with malice — he has failed to raise a genuine issue of material fact in that regard.
Therefore, the Court will focus only on the fairness and truthfulness of Lee
Enterprises’ news articles.
9

judicial proceedings even before they have been judicially acted upon. Cox v. Lee
Enterprises, Inc., 723 P.2d 238, 240 (Mont. 1986).
1.

Lee Enterprises’ August 9, 2010 News Article
a.

Defamation

In response to Lee Enterprises’ summary judgment motion, Spreadbury filed
his affidavit identifying allegedly false statements set forth in the article Lee
Enterprises published on August 9, 2010. The article reported that on Friday,
August 6, 2010, attorneys presented arguments at a hearing in state court
regarding “Michael Spreadbury’s sprawling $3.6 million cases against many of the
county’s civic and municipal officials.” Dkt. 124-11 at 1. Spreadbury asserts the
statement is false because the combined demand of his cases was only $675,000.
The record reflects that in 2010 Spreadbury was prosecuting at least three
civil actions in the Montana Twenty-First Judicial District Court, Ravalli County,
against various city and county public officials in Hamilton, Montana. Those
actions are as follows: (1) Spreadbury v. Wetzsteon and Corn, Cause No. DV 10122, (2) Spreadbury v. Bell, Cause No. DV 10-223, and (3) Spreadbury v. Roddy,
Cause No. DV 10-224.
Spreadbury had also filed a civil action on May 11, 2010, against numerous
city and county officials in the United States District Court, District of Montana,

10

identified as Spreadbury v. Hoffman, et al., CV 10-49-M-DWM-JCL. Spreadbury
demanded compensatory damages in the amount of $3,615,782. Spreadbury v.
Hoffman, et al., CV 10-49-M-DWM-JCL, Dkt. 2 at 49.4
The content of the referenced civil actions cannot be legitimately disputed.
Consequently, as a matter of law, Lee Enterprises’ report as to the amount of
Spreadbury’s demands for monetary compensation made in those judicial
proceedings was a fair and true report and, thus, a privileged statement under
Mont. Code Ann. § 27-1-804(4).
Next, Spreadbury complains about statements Lee Enterprises made in the
August 9, 2010 article about Hamilton City Attorney Kenneth Bell’s conduct.
Spreadbury’s civil lawsuits claimed Bell did not have authority to defend a noncity employee in another civil action. The article reported that during a hearing in
Spreadbury’s civil cases on August 6, 2010, Bell’s attorney asserted that “Bell’s
actions fell within the normal scope of duties of a city attorney.” Dkt. 124-11 at
3of 3.

4

Under Federal Rule of Evidence 201 the Court may take judicial notice of
matters in the judicial record of any court, “both within and without the federal
judicial system[.]” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (citation
and quotation omitted). See also Intri-Plex Technologies, Inc. v. The Crest Group,
Inc., 499 F.3d 1048, 1052 (9th Cir. 2007).
11

The August 9, 2010 article accurately reported arguments made by Bell’s
attorney during the course of the August 6, 2010 hearing. Bell’s attorney —
referring to Bell’s conduct in representing or defending a non-city employee in a
civil matter — argued that “Mr. Bell was acting in his scope as city attorney.”
Dkt. 124-5 at 10 of 11. Again, there exists no legitimate dispute regarding the
transcript of the August 6, 2010 judicial hearing. Therefore, Lee Enterprises’
report about the argument Bell’s attorney made was a fair and true report and,
thus, a privileged statement under Mont. Code Ann. § 27-1-804(4).
Spreadbury also challenges the August 9, 2010 article’s report of statements
that he made during the August 6, 2010 hearing. One of Spreadbury’s lawsuits in
Ravalli County alleged that Angela Wetzsteon — a law student working in the
Ravalli County Attorney’s Office who prosecuted Spreadbury for a criminal
offense — was liable to him on the ground that she was not licensed to practice
law and, therefore, was not authorized to prosecute him. See Dkt. 124-3.
Spreadbury’s lawsuit also alleged that officials in the Ravalli County Attorney’s
Office failed to properly supervise Wetzsteon’s prosecution of him. During the
August 6, 2010 hearing Spreadbury presented arguments relative to Wetzsteon’s
liability and the County Attorney’s supervision of her. The August 9, 2010 article
reported as follows: “The student was supervised by Assistant County Attorney

12

Bill Fullbright, Spreadbury said[.]” Dkt. 124-11 at 3 of 3. Spreadbury asserts this
report is false in that he did not make this statement during the hearing.
Under Montana law, defamatory libel requires a false and unprivileged
publication must have exposed the plaintiff “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.” Mont. Code Ann. § 27-1-802.
Spreadbury fails to articulate a cogent argument as to how Lee Enterprises’
statement regarding Wetzsteon’s supervision constitutes defamation under
Montana law. Specifically, he fails to establish how the statement exposed
Spreadbury to “hatred, contempt, ridicule, or obloquy [... ,]” etc. Mont. Code Ann.
§ 27-1-802.
b.

Defamation Per Se

Finally, Spreadbury argues that Lee Enterprises is liable for defamatory libel
per se based on an August 9, 2010 article published in the Ravalli Republic that
stated Spreadbury had been convicted of the crime of disturbing the peace.5
Specifically, the article states as follows:
Earlier on Friday [Judge] Larson held a pretrial hearing on an appeal by
Spreadbury over his disturbing the peace conviction this spring.

5

By the time this article was published Spreadbury had already lost the
election for mayor on November 3, 2009.
13

Dkt. 124-11 at 2 of 3 (emphasis added). After the article was published
Spreadbury requested that Lee Enterprises correct the mistake. On August 24,
2010, Lee published a correction stating as follows:
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. 115-3 at 2 of 9.
Lee Enterprises concedes the article was inaccurate because Spreadbury was
never convicted of disturbing the peace. Lee argues, however, that Spreadbury
has failed to establish that the inaccuracy defamed him. Lee Enterprises asserts
that Spreadbury has failed to present any evidence establishing that the mistaken
reference to disturbing the peace exposed him to any “hatred, contempt, ridicule,
[...] obloquy[,]” or any other harm cognizable under Mont. Code Ann. § 27-1-802.
Second, it contends that because Spreadbury had been convicted of criminal
trespass — as reported elsewhere in the August 9, 2010 article — the inaccurate
statement regarding a disturbing the peace conviction could not have caused him
more damages than the accurate report of his criminal trespass conviction.
The Court notes that the accurate reference to Spreadbury’s criminal
trespass conviction in the August 9, 2010 article does not make the article as
substantially true as Lee Enterprises suggests. The article reported on
14

Spreadbury’s “disturbing the peace conviction this spring[,]” which Lee
Enterprises later corrected to identify it as a conviction for criminal trespass.
Although the August 9, 2010 article subsequently identified the correct criminal
conviction, the article stated that “Spreadbury was found guilty this winter of
criminal trespass[.]” Dkt. 124-11 at 3 of 3 (emphasis added). The context of the
article does not establish that Lee Enterprises was referring to the same criminal
trespass conviction. Rather, an objective and reasonable person reading the article
could believe that Spreadbury had two convictions for criminal trespass, especially
since Spreadbury was convicted of criminal trespass in the winter on February 18,
2010, not in the spring. Therefore, the Court cannot agree that the article was
substantially true and could not have exposed Spreadbury to further damages.
More importantly, though, the reported conviction for disturbing the peace could
sustain Spreadbury’s claim for defamatory libel per se.
Under Montana law, defamation per se — predicated upon either libelous or
slanderous words — exists when, inter alia, a private actor accuses an individual
of committing a crime. See Blue Ridge Homes, Inc. v. Thein, 191 P.3d 374, 378,
382 (Mont. 2008) (libel), McCusker v. Roberts, 452 P.2d 408, 414 (Mont. 1969)
(slander), and Keller v. Safeway Stores, Inc., 108 P.2d 605, 608-609 (Mont. 1940)
(slander). Published words that are defamatory per se are presumed false, and

15

“[d]amage flowing from such slanderous statements is presumed and
compensatory damages are recoverable without proof of special damages.”
McCusker, 452 P.2d at 414. See also Blue Ridge, 191 P.3d at 382; Keller, 108
P.2d at 614 (noting that the “plaintiff was entitled to some amount as general
presumptive damages”); and Manley v. Harer, 235 P. 757, 759 (Mont. 1925)
(presumption of damage).
Under the early common law of Montana, defamatory words imputing
criminal conduct did not support a viable cause of action for defamation per se
“unless the misconduct imputed amounts to a criminal offense, for which the party
may be indicted and punished.” Ledlie v. Wallen, 42 P. 289, 289-90 (Mont. 1895)
(quoting Pollard v. Lyon, 91 U.S. 225, 226 (1875)), overruled by Kosonen v.
Waara, 285 P. 668 (Mont. 1930).
As recognized by this Court in 1936, however, the common law of
defamation per se in Montana has been relaxed by statute in that it is no longer
necessary that the crime of which a person is accused of committing be one “of the
felony grade.” Keller v. Safeway Stores, Inc., 15 F. Supp. 716, 720 (D. Mont.
1936). Rather, as explained in Keller that statutory law in Montana modified the
common law by providing that a defamatory publication includes that which
“[c]harges any person with crime.” Keller, 15 F. Supp. at 720 (quoting Section

16

5691, Revised Codes of Montana (1921)). Consequently, the publication is
“actionable per se without regard to the grade of the crime charged, its moral
nature or the punishment that may be inflicted upon conviction thereof[.]” Keller,
15 F. Supp. at 720.
Montana statutory law continues to define slander6 to include “a false and
unprivileged publication other than libel that: (1) charges any person with crime
or with having been indicted, convicted, or punished for crime[.]” Mont. Code
Ann. § 27-1-803(1). And the term “crime” is defined — as it was by the statutory
scheme in effect at the time of Keller — as an offense “for which a sentence of
death or of imprisonment or a fine is authorized.” Mont. Code Ann. § 45-2101(49). Thus, Montana recognizes a false accusation of criminal conduct as
defamation per se without regard to the seriousness or character of the crime
allegedly committed.7

6

Mont. Code Ann. § 27-1-802 defining defamatory libel does not expressly
state that falsely charging a person with a crime constitutes libel. The decisional
law of Montana, however, recognizes that falsely charging a person with a crime
constitutes libel per se. See Blue Ridge Homes, Inc. v. Thein, 191 P.3d 374, 378,
382 (Mont. 2008). See also Burr v. Winnett Times Publishing Co., 258 P. 242,
243-44 (Mont. 1927).
7

It is noteworthy that the modern view in other jurisdictions is that
defamation per se requires a false accusation of a serious crime — a criminal
offense that would be “punishable by imprisonment in a state or federal
institution[,]” referred to as “infamous punishment.” Restatement (Second) of
Torts § 571 (1977). See e.g. Gillespie v. City of Macon, 485 F. Supp. 2d 722, 729
17

Disturbing the peace is prohibited under Montana’s disorderly conduct
statute at Mont. Code Ann. § 45-8-101 which states that “[a] person commits the
offense of disorderly conduct if the person knowingly disturbs the peace by”
engaging in specific acts set forth in the statute. (Emphasis added.) See State v.
Robinson, 82 P.3d 27, 28-30 (Mont. 2003) (characterizing a violation of Mont.
Code Ann. § 45-8-101 as the offense of disturbing the peace). Because a person
convicted of disorderly conduct may be sentenced to pay a fine, or may be
imprisoned, the offense is a crime. Mont. Code Ann. §§ 45-2-101(49), and 45-8101(2) and (3). Therefore, falsely charging a person with committing the crime of
disturbing the peace would constitute defamation per se under Montana law.
As noted, Lee Enterprises concedes that it inaccurately reported Spreadbury
had been charged and convicted of disturbing the peace. Negligent conduct in
connection with publishing a false statement is sufficient to sustain a claim of
defamation. See Madison v. Yunker, 589 P.2d 126, 132-33 (Mont. 1978), infra.
(S.D. Miss. 2007); MacDonald v. Riggs, 166 P.3d 12, 18 (Alaska 2007); and
Ziglar v. Media Six, Inc., 2003 WL 549977, *1 (Va. Cir. 2003). Defamation per se
is limited in that it is “[o]nly when the crime falsely imputed is of ‘major and
serious a character[,]’” “involving punishment infamous or disgraceful in
character[]” that defamation per se is actionable. Speed v. Scott, 787 So. 2d 626,
633 (Miss. 2001). The accusation must be of a “grave offense[,]” otherwise an
accusation that someone stole a pencil would inappropriately be actionable per se.
Speed, 787 So. 2d at 635. As noted in Keller, 15 F. Supp. at 720, however,
Montana law makes no distinction as to the grade, character, severity, or
seriousness of the crime of which a person is falsely accused.
18

Additionally, a defendant may be held liable for defamation per se where the
defendant incorrectly reports that a plaintiff was convicted of one crime even
though the plaintiff was in fact convicted of a different crime. See e.g. Towle v. St.
Albans Publishing Co., Inc., 165 A.2d 363, 368 (Vt. 1960). Consequently, it is
presumed that Spreadbury suffered damages — a presumption which, of course, is
rebuttable. Lee Enterprises’ motion is properly denied as to Spreadbury’s claim of
defamatory libel per se.8
2.

Communications Decency Act
a.

Comments Posted by Third Party Internet
Subscribers

Spreadbury contends Lee Enterprises is liable for comments third parties
made about certain newspaper articles because Lee Enterprises published those
comments on the internet. Spreadbury has filed copies of the specific comments
that readers had posted relative to Lee Enterprises’ September 10, 2009 article,
and its August 9, 2010 article, and Spreadbury describes them as “defamatory third
party comments[.]” Dkt. 136 at 3. For the reasons discussed, however, Lee
Enterprises’ publication of those third party comments on the internet under the
circumstances of this case does not subject Lee Enterprises to liability.
8

The Court notes that Lee Enterprises’ August 24, 2010 correction article, if
sufficient under Mont. Code Ann. § 27-1-820, would only limit its exposure to
punitive damages. Mont. Code Ann. § 27-1-821.
19

The federal Communications Decency Act (the “Act”) protects “providers
of interactive computer services against liability arising from content created by
third parties[.]” Fair Housing Council of San Fernando Valley v.
Roommates.Com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008). Specifically, the Act
provides that “[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)(1). Further, the Act states that
“[n]o cause of action may be brought and no liability may be imposed under any
State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3).
Reading sections 230(c)(1) and (e)(3) together, it is clear that subsection (c)(1):
protects from liability (1) a provider or user of an interactive computer
service (2) whom a plaintiff seeks to treat, under a state law cause of
action,[9] as a publisher or speaker (3) of information provided by another
information content provider.
Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1100-01 (9th Cir. 2009). Computer service
entities have “broad immunity” against liability “for publishing false or

9

The liability protection also applies against causes of action advanced
under federal law. Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1100 (9th Cir. 2009)
(citing Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC,
521 F.3d 1157 (9th Cir. 2008)).
20

defamatory material so long as the information was provided by another party.”
Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1122-23 (9th Cir. 2003).10
The Act defines the two positions that various parties may occupy with
respect to the liability protection provided in § 230(c)(1) as follows:
(2) Interactive computer service
The term “interactive computer service” means any information
service, system, or access software provider that provides or enables
computer access by multiple users to a computer server, including
specifically a service or system that provides access to the Internet
and such systems operated or services offered by libraries or
educational institutions.
(3) Information content provider
The term “information content provider” means any person or entity
that is responsible, in whole or in part, for the creation or
development of information provided through the Internet or any
other interactive computer service.
47 U.S.C. § 230(f)(2) and (3).
There exists a fine, but distinct line between merely providing an
“interactive computer service,” and becoming an “information content provider.”
An internet website operator could become “responsible, in whole or in part,” for

10

One of the purposes of the Act was to “encourage interactive computer
services that provide [third party] users neutral tools to post content online to
police that content without fear that [...] they would become liable for every single
message posted by third parties on their websites.” Fair Housing Council, 521
F.3d at 1175 (emphasis in original).
21

the “development” of information content, and thereby fall outside of the liability
protection of the Act, if it materially contributes to the alleged unlawfulness of the
content of the information provided by a third party, or materially contributes to
the alleged illegality of a third party’s conduct. Fair Housing Council, 521 F.3d at
1162, 1167-68.
In contrast, the Act immunizes “interactive computer service” providers for
their conduct in merely acting as a conduit for publications made by third parties.
The liability protection under § 230(c)(1) applies where a website operator makes
a neutral tool available on the website for third parties to tender written comments
for publishing because the operator “is not responsible, in whole or in part, for the
development of [the] content, which comes entirely from subscribers and is
passively displayed by” the website operator. Fair Housing Council, 521 F.3d at
1162, 1174; Carafano, 339 F.3d at 1125; 47 U.S.C. § 230(c)(1). A “simple,
generic prompt [on a website for a subscriber to make a comment] does not make
[the website operator] a developer of the information posted.” Fair Housing
Council, 521 F.3d at 1174. As long as the website operator does not encourage or
require a subscriber to post illegal content, then the computer service will be
immune under the Act. Id. See also Collins v. Purdue University, 703 F. Supp. 2d
862, 878-80 (N.D. Ind. 2010) (granting liability protection under § 230(c)(1) to an

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online newspaper publisher where the publisher merely provided third parties with
an opportunity to submit comments about news articles, and the publisher did not
create, develop, encourage, or influence the defamatory comments in any way).
In support of its summary judgment motion, Lee Enterprises relies upon an
affidavit signed by Stacey Mueller. Dkt. 84-1. Ms. Mueller is the publisher of the
Missoulian newspaper owned by Lee Enterprises, and she oversees the Ravalli
Republic newspaper also owned by Lee Enterprises. Dkt. 84-1 at ¶¶ 1-2. Those
newspapers publish articles on their internet websites and permit readers to post
comments online about the articles. Id. at ¶ 3. Ms. Mueller reviewed the Ravalli
Republic and Missoulian news articles published about Spreadbury at issue in this
case, and the comments to those articles posted by third parties. Id. at ¶ 4. She
confirms that all of those comments on the Ravalli Republic website were posted
“by third-party, on-line readers[,]” and that “[t]he Ravalli Republic did not
encourage, create, or otherwise develop the comments[, ...and] has not altered or
otherwise edited the comments made by third parties on the newspaper’s website.”
Id. at ¶¶ 6-7.
Spreadbury argues Lee Enterprises’ reliance on the Communications
Decency Act is misplaced. His only argument, however, is that Lee Enterprises is
deemed a publisher of the third parties’ comments, and it is not an “interactive

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computer service” provider under the Act with respect to its Ravalli Republic or
Missoulian internet news websites. Spreadbury’s argument, however, fails as a
mater of law.
The phrase “interactive computer service” is broadly defined, and “includes
a wide range of cyberspace services[.]” Batzel v. Smith, 333 F.3d 1018, 1030 and
n.15 (9th Cir. 2003). See also Carafano v. Metrosplash.com, Inc., 339 F.3d 1119,
1123 (9th Cir. 2003). The most common “interactive computer services” are
websites. Fair Housing Council, 521 F.3d at 1162 and n.6. Specifically, a
newspaper entity which publishes articles on its internet website is an “interactive
computer service.” Collins v. Purdue University, 703 F. Supp. 2d 862, 878-80
(N.D. Ind. 2010).
Spreadbury does not identify any facts that would suggest the comments at
issue in this case were not posted by third parties. Spreadbury, in fact, concedes
the comments were made by third parties. Spreadbury also has not presented any
facts, and there exists no evidence in the record on which a jury could conclude
that Lee Enterprises was responsible, in whole or in part, for creating, developing,
encouraging, or influencing the defamatory comments in any way.
Based on the foregoing, § 230(c)(1) of the Act protects Lee Enterprises
against liability for defamation predicated upon the comments that third party

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subscribers posted on the internet regarding Lee Enterprises’ September 10, 2009
and August 9, 2010 articles. Lee Enterprises is entitled to judgment as a matter of
law on those claims.
b.

Other Causes of Action Predicated Upon Publishing
Third Parties’ Comments

The Communications Decency Act protects a defendant against liability for
claims other than defamation. Regardless of the specific label or identification of
the cause of action advanced by a plaintiff, if the “duty that the plaintiff alleges the
defendant violated derives from the defendant’s status or conduct as a ‘publisher
or speaker[,]’” then § 230(c)(1) of the Act protects the defendant against liability.
Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1102 (9th Cir. 2009).
In response to Lee Enterprises’ summary judgment motion Spreadbury
contends that Lee Enterprises’ publication of third party comments constituted
tortious interference with his employment. Dkt. 136 at 4. Similarly, Spreadbury’s
allegations in his second amended complaint seek to impose liability on Lee
Enterprises for negligence based on its conduct in publishing the third parties’
comments. Dkt. 90 at 34-35. In accordance with Barnes, to the extent those
claims, or any other causes of action advanced by Spreadbury are predicated upon
Lee Enterprises’ conduct in publishing third party comments about him, the claims

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are barred by § 230(c)(1) of the Act. Thus, Lee Enterprises is entitled to judgment
as a matter of law in that respect.
B. Remaining State Law Claims
Lee Enterprises moves for summary judgment dismissing all of
Spreadbury’s remaining claims for relief. Some of those claims, however, should
survive dismissal in view of Spreadbury’s remaining claim for defamation per se
discussed above.
1.

Negligence

Spreadbury advances a claim of common law negligence against Lee
Enterprises based on its publication of defamatory matters in its August 9, 2010
newspaper article.
“Negligence is the failure to use the degree of care that an ordinarily
prudent person would have used under the same circumstance.” Barr v. Great
Falls International Airport Authority, 107 P.3d 471, 477 (Mont. 2005).
To maintain an action in negligence, the plaintiff must prove four essential
elements: (1) the defendant owed the plaintiff a legal duty, (2) the defendant
breached that duty, (3) the breach was the actual and proximate cause of an
injury to the plaintiff, and (4) damages resulted.
Peterson v. Eichhorn, 189 P.3d 615, 620-21 (Mont. 2008). The existence of a
legal duty is a question of law for the court’s determination. Jackson v. State of
Montana, 956 P.2d 35, 42 (Mont. 1998).
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Lee Enterprises requests summary judgment dismissing Spreadbury’s claim
of negligence on the grounds that Spreadbury has failed to identify any legal duty
Lee Enterprises owed to Spreadbury with which it failed to comply. The Court
disagrees because it recommends that Spreadbury’s claim of defamation per se
should survive summary judgment.
The law of defamation per se in Montana, as discussed above, imposes a
legal duty upon a person or entity to refrain from falsely accusing another of
committing a crime. In assessing a defendant’s liability for defamation, a majority
of states have followed the United States Supreme Court’s decision in Gertz v.
Robert Welch, Inc., 418 U.S. 323, 347 (1974) and have applied a negligence
standard of care in cases where a defendant publishes matters of either public or
private concern about a private plaintiff. See Floyd v. WBTW, 2007 WL 4458924,
*3 n.3 (D.S.C. 2007); Kennedy v. Sheriff of East Baton Rouge, 935 So. 2d 669,
680-81 (La. 2006). The Montana Supreme Court has also followed the suggestion
in Gertz that a negligence standard should apply unless the plaintiff is a public
figure. See Madison v. Yunker, 589 P.2d 126, 132-33 (Mont. 1978).
Here, although Spreadbury had been a candidate for mayor in the City of
Hamilton, his candidacy ended in November, 2009, upon his defeat in the election.

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Thus, at the time of Lee Enterprises’ August 9, 2010 article Spreadbury was a
private figure, and Lee Enterprises does not argue to the contrary.
Based on the foregoing, a negligence standard of care applies to Lee
Enterprises’ conduct in falsely reporting that Spreadbury was convicted of
disturbing the peace. Lee Enterprises was legally obligated to use the degree of
care that an ordinarily prudent person would have used under the same
circumstance. Because Lee Enterprises has failed to meet its summary judgment
burden of either negating an essential element of Spreadbury’s negligence claim,
or showing that Spreadbury lacks sufficient evidence to establish one of the
essential elements, its summary judgment motion should be denied with respect to
Spreadbury’s claim of negligence.
2.

Tortious Interference with Prospective Economic
Advantage

Under Montana law, the elements of a cause of action for tortious or
intentional interference with prospective economic advantage require that a
defendant’s acts: “(1) are intentional and willful; (2) are calculated to cause
damage to the plaintiff's business; (3) are done with the unlawful purpose of
causing damage or loss, without right or justifiable cause on the part of the actor;
and (4) result in actual damages or loss.” Maloney v. Home and Investment
Center, Inc., 994 P.2d 1124, 1132 (Mont. 2000).
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Lee Enterprises moves for summary judgment dismissing Spreadbury’s
tortious interference claim on the ground that Spreadbury has not established that
it committed any intentional, willful or wrongful act without right or justification.
For the reasons discussed above, however, Spreadbury’s claim of defamation per
se based on his reported conviction for disturbing the peace should survive
summary judgment. That conduct, if proven, could constitute the predicate
wrongful act, committed without right or justification, in support of Spreadbury’s
tortious interference claim. Again, Lee Enterprises has failed to meet its summary
judgment burden of either negating an essential element of Spreadbury’s claim, or
showing that Spreadbury lacks sufficient evidence in support of an essential
element of the claim. Thus, Lee Enterprises is not entitled to judgment as a matter
of law.
3.

Negligent and Intentional Infliction of Emotional Distress

Spreadbury alleges that all Defendants are liable for both negligent and
intentional infliction of emotional distress. Specific to Lee Enterprises,
Spreadbury alleges it is liable because it published defamatory statements against
him.

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Lee Enterprises requests summary judgment dismissing Spreadbury’s
emotional distress claims. In response, Spreadbury has failed to present any
evidence in support of those claims.
The Montana Supreme Court has recognized independent causes of action
for negligent or intentional infliction of emotional distress. See Sacco v. High
Country Independent Press, Inc., 896 P.2d 411 (Mont. 1995). These stand-alone
causes of action are subject to a heightened standard of proof in that they will
only:
arise under circumstances where serious or severe emotional distress to the
plaintiff was the reasonably foreseeable consequence of the defendant's
negligent or intentional act or omission.
Sacco, 896 P.2d at 426, 428-29. The plaintiff must ultimately prove that the
emotional distress was “so severe that no reasonable person could be expected to
endure it.” Lorang v. Fortis Ins. Co., 192 P.3d 186, 222 (Mont. 2008) (quoting
Sacco, 896 P.2d at 425-426, 428-29). See also Renville v. Fredrickson, 101 P.3d
773, 775-76 (Mont. 2004) (discussing standard for severity and seriousness).
Sacco’s heightened standard of proof requires “that a plaintiff claiming
intentional or negligent infliction of emotional distress must make a threshold
showing to the court that their emotional distress is ‘serious or severe’ in order to
proceed to trial.” Jacobsen v. Allstate Ins. Co., 215 P.3d 649, 663 (Mont. 2009)

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(citing Sacco, 896 P.2d at 427). In determining whether the threshold is satisfied
in any particular case, “it is for the court to determine whether[,] on the evidence[,]
severe or serious emotional distress can be found; [and, if so,] it is for the jury to
determine whether, on the evidence, it has in fact existed.” Sacco, 896 P.2d at 425
and 429.
Spreadbury has not identified or presented any admissible facts or
evidentiary matters describing any emotional distress he has experienced as a
result of Lee Enterprises’ conduct in publishing false statements in its August 9,
2010 article. He has failed to present any evidence whatsoever on which a jury
could find that he suffered emotional distress that was so serious or severe that no
reasonable person could be expected to endure it as required under Sacco. Thus,
Lee Enterprises is entitled to summary judgment dismissing Spreadbury’s claims
of negligent and intentional infliction of emotional distress.
The Court notes, however, that Spreadbury’s second amended complaint
contains a prayer for relief seeking compensation for emotional distress as an
element of damages. The high standard of proof established in Sacco applies only
to an independent cause of action for the infliction of emotional distress, and the
standard does not apply to a claim requesting compensation for emotional distress
as an element of damages associated with other torts in general. Lorang v. Fortis

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Ins. Co., 192 P.3d 186, 223 (Mont. 2008). Therefore, to the extent Spreadbury
requests compensation for emotional distress as an element of damages “[t]he
measure of [his] actual damages is a factual matter for the jury to determine.” Id.,
192 P.3d at 224.
4.

Injunctive Relief

Spreadbury further requests injunctive relief against Lee Enterprises due to
its defamatory conduct alleged in the second amended complaint. He seeks to
prevent Lee Enterprises from publishing any further defamatory statements.
“Injunctions that broadly order the enjoined party simply to obey the law
[...] are generally impermissible.” Rocky Mountain Christian Church v. Board of
County Commissioners of Boulder County, 612 F. Supp. 2d 1157, 1161 (D. Colo.
2009) (quoting N.L.R.B. v. U.S. Postal Service, 486 F.3d 683, 691 (10th Cir. 2007)
(Tymkovich, J. concurring and citing cases)). The courts lack authority to impose
injunctive relief which broadly requires a person to simply obey the law. See
N.L.R.B. v. Express Publishing Co., 312 U.S. 426, 435-36 (1941).
Here, Spreadbury’s request seeks injunctive relief prohibiting Lee
Enterprises from publishing defamatory matters against Spreadbury, i.e. requiring
it to obey the law of defamation in Montana. Such relief is not available, and Lee
Enterprises is entitled to summary judgment dismissing the claim.

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5.

Punitive Damages

Lee Enterprises moves for summary judgment dismissing Spreadbury’s
claim for punitive damages. Its only argument, however, is that the claim should
be dismissed because it is not liable for any other underlying cause of action
prosecuted by Spreadbury in this action, and absent a viable theory of recovery
resulting in an award of actual damages against Lee Enterprises, Spreadbury is not
entitled to recover punitive damages. See Doll v. Major Muffler Centers, Inc., 208
Mont. 401, 414, 687 P.2d 48, 55 (1984), and Peterson v. Eichhorn, 189 P.3d 615,
624 (Mont. 2008).
The Court, however, recommends that several of Spreadbury’s causes of
action predicated upon Lee Enterprises’ conduct in falsely reporting that
Spreadbury was convicted of disturbing the peace should survive summary
judgment. Therefore, Lee Enterprises has a failed to meet its summary judgment
burden of negating an essential element of Spreadbury’s claim for punitive
damages.
V.

CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that Lee Enterprises’

summary judgment motion be DENIED as to Spreadbury’s causes of action for
defamation per se, negligence, tortious interference with prospective economic

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advantage, and punitive damages, but only to the extent those claims are
predicated upon the fact that Lee Enterprises published a news article on August 9,
2010, which incorrectly reported that Spreadbury had been convicted of disturbing
the peace. Lee Enterprises’ motion should be GRANTED in all other respects,
and all of Spreadbury’s other legal claim and other predicate factual allegations
against Lee Enterprises should be DISMISSED.
DATED this 30th day of November, 2011.

/s/ Jeremiah C. Lynch
Jeremiah C. Lynch
United States Magistrate Judge

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