Earley v. GateHouse Media Pennsylvania Holdings, Inc.

Filing 26

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable Malachy E Mannion on 09/30/13. (ep)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
WAYNE EARLEY,

:

Plaintiff

:

CIVIL ACTION NO. 3:12-1886

v.

:

(JUDGE MANNION1)

GATEHOUSE MEDIA
:
PENNSYLVANIA HOLDINGS, INC.,
:
Defendant
:
MEMORANDUM
Presently before the court is the defendant’s motion to dismiss the
plaintiff’s complaint. (Doc. No. 2). Based upon the court’s review of the motion
and related materials, as well as upon consideration of oral arguments
presented to the court, the motion to dismiss will be granted without prejudice
to allow the plaintiff to file an amended complaint.

I.

PROCEDURAL HISTORY
By way of relevant background, the plaintiff filed the instant action in the

Court of Common Pleas of Wayne County on August 20, 2012, in which he
alleges claims of defamation, (Count I), and false light invasion of privacy,

1

The instant action was originally assigned to the Honorable A. Richard
Caputo. By verbal order, on January 7, 2013, the matter was reassigned.

(Count II)2. (Doc. No. 1). The defendant filed a notice of removal under 28
U.S.C. §1446(b), on September 20, 2012, on the basis of diversity jurisdiction
pursuant to 28 U.S.C. §1332. (Id.).
On September 27, 2012, the defendant filed the pending motion to
dismiss the plaintiff’s complaint. (Doc. No. 2). A brief in support of the
defendant’s motion was filed on October 11, 2012. (Doc. No. 5). On
November 26, 2012, the plaintiff filed a brief in opposition to the defendant’s
motion to dismiss. (Doc. No. 10). A reply brief was filed by the defendant on
December 10, 2012. (Doc. No. 11).
Upon request, the court heard oral arguments on the motion to dismiss
on March 27, 2013.

II.

STANDARD OF REVIEW
The defendant’s motion to dismiss is brought pursuant to the provisions

of Fed. R. Civ. P. 12(b)(6). This rule provides for the dismissal of a complaint,
in whole or in part, if the plaintiff fails to state a claim upon which relief can be
granted. The moving party bears the burden of showing that no claim has
been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir.2005), and

2

The plaintiff had also set forth claims of punitive damages, (Count III),
and negligence, (Count IV), which he agreed to withdraw at the oral argument
on the defendant’s motion to dismiss. As a result, the court does not consider
these claims herein.
2

dismissal is appropriate only if, accepting all of the facts alleged in the
complaint as true, the plaintiff has failed to plead “enough facts to state a
claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 127 S. Ct. 1955, 1974, (2007) (abrogating “no set of facts” language
found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The facts alleged must
be sufficient to “raise a right to relief above the speculative level.” Twombly,
550 U.S. 544, 127 S. Ct. at 1965. This requirement “calls for enough fact[s]
to raise a reasonable expectation that discovery will reveal evidence of
necessary elements of the plaintiff’s cause of action. Id. Furthermore, in order
to satisfy federal pleading requirements, the plaintiff must “provide the
grounds of his entitlement to relief,” which “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir.2008)
(brackets and quotations marks omitted) (quoting Twombly, 550 U.S. 544,
127 S. Ct. at 1964-65).
In considering a motion to dismiss, the court generally relies on the
complaint, attached exhibits, and matters of public record. Sands v.
McCormick, 502 F.3d 263 (3d Cir.2007). The court may also consider
“undisputedly authentic document[s] that a defendant attaches as an exhibit
to a motion to dismiss if the plaintiff’s claims are based on the [attached]
documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d
1192, 1196 (3d Cir.1993). Moreover, “documents whose contents are alleged
3

in the complaint and whose authenticity no party questions, but which are not
physically attached to the pleading, may be considered.” Pryor v. Nat’l
Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir.2002). However, the court
may not rely on other parts of the record in determining a motion to dismiss.

III.

DISCUSSION
The following allegations are taken from the plaintiff’s complaint and are

accepted as true for purposes of considering the instant motion to dismiss.
The plaintiff was employed as a general contractor and carpenter for thirty-five
years doing business throughout Northeastern Pennsylvania. During this time,
he and his wife resided in the Honesdale, Pennsylvania, area.
In 1998, the plaintiff became the Code Enforcement Officer with
Honesdale Borough. Beginning in 2004, the plaintiff was hired by Honesdale
Borough as its Building Construction, Zoning and General Code Enforcement
official.
The plaintiff has been certified by the Department of Labor and Industry
as a Building Code Official and permitted to perform Building Code Official
work for commercial construction since April 23, 2004. Since 2007, the
plaintiff is also certified by the Department of Labor and Industry as an
Accessability

Inspector/Plans

Examiner

and

permitted

to

perform

accessability inspections and plan review for commercial construction, which
certification expires on December 9, 2013.
4

Pursuant to an agreement between the plaintiff and Honesdale
Borough, the Borough was responsible for paying for the plaintiff’s training
and the licensing or certification of plaintiff in the relevant areas in which he
was expected to inspect and for which certification existed. Between May 5,
2004, and March 1, 2012, pursuant to his agreement with the Borough, the
plaintiff attended and completed numerous training courses and subsequently
passed mandatory testing for certification in the areas associated with his
training. The training courses completed and passed by the plaintiff were
conducted by the International Code Council. These courses qualified him to
be certified by the Pennsylvania Department of Labor and Industry in the
areas in which he was trained. However, the plaintiff maintains that in order
to actually obtain certification, submission to the Department of Labor and
Industry of proof of passing of the courses and a fee was required. Pursuant
to the aforementioned agreement, this fee was to be paid by the Borough.
At some point, the Borough decided that the plaintiff should not seek
certification to perform building, electrical, plumbing or energy inspections or
plan review for commercial construction because it was too expensive to
obtain the certification and, in addition, another individual already had the
certification and could act in that capacity as needed. Plaintiff did not perform
building, electrical, mechanical, plumbing or energy inspections or plan review
for commercial construction after his certification as a Commercial Current
Code Official expired.
5

To the extent that the plaintiff lacked the Department of Labor and
Industry certification for any aspect required for his work, he contends the
reason was the failure of the Borough to pay the licensing fee and submit the
qualifications on his behalf. However, as part of the plaintiff’s job as a Zoning
Officer and Code Enforcement Officer, a certification from the Department of
Labor and Industry or any other governmental body was not required.
On March 12, 2012, the plaintiff’s employment with the Borough was
terminated by a vote of the Honesdale Borough Council. At this time, he was
certified by the Pennsylvania Department of Labor and Industry in all aspects
of the work he performed for the Borough.
Shortly before his termination, beginning in or about January 2012 and
continuing through March 2012, the defendant Wayne Independent began
publishing a number of articles and editorial or opinion pieces in print and
online regarding the plaintiff, which the plaintiff alleges created false or
misleading impressions of him, including the impression that he may have
been involved in either the break in, or cover up to the break in, of the zoning
office; he was responsible for either the disappearance or mishandling of
Texas Township records; he was improperly invoiced, paid or overpaid for
work he completed for Texas Township; he committed a crime under the
Pennsylvania Construction Code; he was not qualified to perform residential
building inspections; he conducted commercial building inspections when he
was not certified to do so; he was a drain on taxpayer money and costed the
6

Borough more money than he collected for the Borough; and he was fired as
a result of being incompetent and unqualified to do his job.
After the plaintiff’s termination, the defendant Wayne Independent
continued to publish articles and editorials regarding the plaintiff, which he
alleges continued to create false or misleading impressions, including that he
failed to properly perform his job at both the Honesdale Borough and in Texas
Township and asking the public to come forward with stories of “questionable
dealings” with the plaintiff; he misappropriated or mishandled money while
employed with the Borough; he forced an engineer to make a finding that
resulted in the condemnation of a building following an earthquake in 2012;
prior to the plaintiff’s termination, paperwork in an application in the Borough
for a Tractor Supply Store was improperly prepared or handled within the
plaintiff’s office; the Borough was much better since the plaintiff’s termination;
the plaintiff appealed a decision finding that he was not entitled to
unemployment and, as a result, was improperly getting money from the
taxpayers through unemployment.
By letter dated April 30, 2012, the District Attorney of Wayne County
advised Honesdale Borough Council that there was no basis for criminal
charges in any of the incidents noted or reported by the defendant Wayne
Independent in the articles and editorials referencing the plaintiff.
Contrary to the articles and editorials in the defendant Wayne
Independent,

the

plaintiff

was

not
7

initially

denied

Unemployment

Compensation Benefits, but was granted benefits and the Borough, not
plaintiff, appealed the decision. Plaintiff’s benefits were again granted
following the hearing on the Borough’s appeal and defendant has never
reported or referenced the decision of the Unemployment Compensation
Referee decision granting plaintiff benefits.
At no time prior to or during the publication of the above articles did the
plaintiff receive a reprimand or negative comment or report in his personnel
file held by Honesdale Borough.
In publishing the articles and editorials referenced above, the plaintiff
alleges that the defendant Wayne Independent engaged in a course of
conduct

which

has

sullied

his

reputation

and

good

name

by

misrepresentations and false statements and accusations about his character,
professional competency, professional qualifications and integrity. The plaintiff
alleges that this was done either with the knowledge that the publications and
the impressions which they were fairly calculated to produce were false or
were published without regard to whether the same was true or false.
In light of the above, in Count I of his complaint which sets forth a claim
of defamation, the plaintiff alleges that the false and misleading impressions
made by the defendant’s publications were defamatory and libelous by nature
and when taken as a whole. The plaintiff alleges that as a direct and
proximate result of the publications, he has been brought into reproach and
has been injured in his good name, his personal and professional reputation,
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his employment and employability, and his feelings, to his great detriment and
financial loss.
In Count II of his complaint which sets forth a claim for false light
invasion of privacy, the plaintiff alleges that the defendant’s publications
unreasonably placed him in a false light before the public. The plaintiff alleges
that the false and misleading publicity of private facts regarding him in the
publications specifically including, but without limitation, the article and
editorial relating to plaintiff’s unemployment compensation proceedings are
highly offensive to a reasonable person such as plaintiff and are not of
legitimate concern to the public. The plaintiff further alleges that the Wayne
Independent in publishing the articles and editorials referenced did so either
with knowledge of or in reckless disregard as to the falsity of the publicized
matters and the false light in which it placed the plaintiff. As a direct and
proximate result of the publications referenced, the plaintiff alleges that he
has been brought into reproach and has been injured in his good name, his
personal and professional reputation, his employment and employability, and
his feelings, to his great detriment and financial loss.
In its pending motion, the defendant argues that the plaintiff’s
defamation and false light clams should be dismissed for the plaintiff’s failure
to properly allege actual malice with regard to either claim. The defendant
argues that the plaintiff is a public official under the First Amendment and
carried with his position responsibilities which would reasonably lead the
9

public to have an independent interest in his qualifications and the
performance of his duties. As a public official, the defendant argues that the
plaintiff has the additional burden of alleging actual malice in relation to his
claims of defamation and false light.
In Pennsylvania, in order to prevail on a claim of defamation, a plaintiff
must prove: (1) the defamatory character of the communication; (2)
publication; (3) that the communication referred to the plaintiff; (4) a third
party’s understanding of the communication’s defamatory character; and (5)
injury. Marcone v. Penthouse Intern. Magazine for Men, 754 F.2d 1072 (3d
Cir. 1985), cert. denied, 474 U.S. 864 (1985). In addition, in New York Times
Co. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court held that in a suit in
which the defamation of a public official has been alleged, the First
Amendment requires the plaintiff to establish that in publishing the defamatory
statement the defendant acted with “actual malice – that is, with the
knowledge that it was false or with reckless disregard of whether it was false
or not.” Id. at 279-80.
In the instant action, the plaintiff offers no substantive challenge to his
status as a public official during his time as a Code Enforcement Officer and
subsequent Building Construction, Zoning and General Code Enforcement
Officer. However, he argues that this status would only be operative until he
was fired from his job on March 12, 2012. After his firing, the plaintiff argues
that his status as a public official is less than clear and that, as time passed,
10

he was entitled to be considered a private individual.
Concerning the plaintiff’s argument, a public official continues to be a
public official as to their conduct during their tenure, at least with respect to
matters of continuing public interest. See Rosenblatt v. Baer, 383 U.S. 75, 87
n.14 (1966); Pierce v. Capital Cities Communications, Inc., 576 F.2d 495, 510
n.67 (3d Cir.), cert. denied, 439 U.S. 861 (1978), (former mayor and port
authority head still public official as to his activities in office more than three
years after leaving office). See also Zerangue v. TSP Newspapers, Inc., 814
F.2d 1066, 1069-1070 (5th Cir. 1987) (article concerning former officials’
activities published almost six years after they lost their jobs; held, public
officials); Time, Inc. v. Johnston, 448 F.2d 378, 381 (4th Cir. 1971) (“No rule
of repose exists to inhibit speech relating to the public career of a public figure
so long as newsworthiness and public interest attach to events in such public
career”).
Here, the articles attached as exhibits to the plaintiff’s complaint relate
to and reflect the continued interest in the plaintiff’s performance of his duties
as a Code Enforcement Officer and his subsequent discharge from that
position. As such, the court finds that they were not taken out of the First
Amendment realm simply because they were published after the plaintiff’s
discharge. The plaintiff was required, therefore, to properly allege actual

11

malice in relation to his defamation claim3.
Actual malice is “a term of art denoting deliberate or reckless
falsification.” Masson v. New Yorker Magazine, 501 U.S. 496, 499 (1991).
Setting aside the standard for deliberate conduct, “[r]eckless conduct is not
measured by whether a reasonably prudent man would have published, or
would have investigated before publishing. There must be sufficient evidence
to permit the conclusion that the defendant in fact entertained serious doubts
as to the truth of his publication,” St. Amant v. Thompson, 309 U.S. 727, 731
(1968), or published the material while subjectively possessing a “high degree
of awareness of the probable falsity of the publication,” Garrison v. Louisiana,
379 U.S. 64, 74 (1964). As such, actual malice, even by way of recklessness,
is a difficult standard to meet, and quite purposefully so. The Supreme Court
has stated that “the stake of the people in public business and the conduct of
public officials is so great that neither the defense of truth nor the standard of
ordinary care would protect against self-censorship and thus adequately
implement First Amendment policies. St. Amant, 390 U.S. at 731-32.
In the wake of Iqbal and Twombly, adequately pleading actual malice

3

The court need not first determine whether the plaintiff plausibly states
a claim for defamation before deciding whether he plausibly alleges actual
malice in relation to that claim. Because the actual malice deficiency is the
core and dispositive issue in this matter, the court addresses this matter first.
See Schatz v. Repub. State Leadership Comm., 669 F.3d 50, 56 (1st Cir.
2012).
12

is an onerous task. The Court in Iqbal held that, where a particular state of
mind is a necessary element of a claim, pleading of that state of mind must
be plausible and supported by factual allegations. Iqbal, 556 U.S. 686-87 (“It
is true that Rule 9(b) requires particularity when pleading ‘fraud or mistake,’
while allowing ‘[m]alice, intent, knowledge, and other conditions of a person’s
mind [to] be alleged generally.” But ‘generally’ is a relative term. In the context
of Rule 9, it is to be compared to the particularity requirement applicable to
fraud or mistake. Rule 9 merely excuses a party from pleading discriminatory
intent under an elevated pleading standard. It does not give him license to
evade the less rigid – though still operative – strictures of Rule 8.”). Thus, to
properly allege a plausible malice claim, the plaintiff must still lay out enough
facts from which malice might reasonably be inferred. See Schatz v.
Republican State Leadership Comm., 669 F.3d 50, 58 (1st Cir. 2010).
Upon review of the plaintiff’s complaint, the plaintiff has failed to
sufficiently plead actual malice so as to proceed with his defamation and false
light claims. To this extent, the court does not consider the plaintiff’s
conclusory allegations with regard to knowledge or recklessness. See Schatz,
supra. Excluding these allegations, the remainder of the plaintiff’s allegations
do not adequately touch upon facts supporting the plaintiff’s claim of the
defendant’s knowledge or recklessness so as to adequately allege actual
malice.
In his brief opposing the defendant’s motion, without citation to any
13

authority, the plaintiff argues that the mere number of articles published about
him by the defendant establishes actual malice. However, the number of
articles, in and of itself, does not tend to establish that the defendant knew
that the information in the articles was false or that the defendant acted with
reckless disregard as to the truth or falsity of the information in the articles.
Further, although there were apparently twenty-seven articles published about
the plaintiff, the articles at issue relate to a number of separate incidents
involving the plaintiff and, as the defendant argues, accepting the plaintiff’s
argument would allow actual malice to be inferred anytime a defamation claim
was alleged in the context of concentrated press coverage, as happens in
cases of high public interest, in contravention of the case law which indicates
that actual malice requires adequate factual support to show that the
defendant acted with knowledge that the information it published was false or
with reckless disregard of whether it was false or not. Thus, even accepting
the plaintiff’s well-pleaded facts as true, he has failed to properly allege actual
malice so as to state a plausible defamation claim against the defendant.
With respect to the plaintiff’s false light claim, the elements to be proven
in a false light claim are: (1) publicity, (2) given to private facts, (3) which
would be highly offensive to a reasonable person and (4) which are not of
legitimate concern to the public.” Dice v. Johnson, 711 F. Supp. 2d 340,
359-60 (M.D. Pa. 2010) (citing Strickland v. Univ. of Scranton, 700 A.2d 979,
987 (Pa.Super.1997)). As with claims of defamation, in actions alleging false
14

light involving a public official, the plaintiff must properly plead and prove
actual malice. Park v. Veasie, 2012 WL 1382222 (M.D.Pa. Apr. 20, 2012);
Coughlin v. Westinghouse Broad. & Cable, Inc., 603 F.Supp. 377, 389
(E.D.Pa. 1985). For the reasons discussed above, the plaintiff has also failed
to properly allege actual malice in relation to his false light claim. Therefore,
the defendant’s motion should be granted on this basis as well.
While the court finds that the defendant’s motion to dismiss should be
granted for the plaintiff’s failure to properly allege actual malice as to his
defamation and false light claims, such dismissal will be without prejudice to
allow the plaintiff the opportunity to amend his complaint to properly do so, if
in goof faith he can. To this extent, in his opposing brief, the plaintiff asks the
court to afford him the opportunity to amend his complaint pursuant to
Fed.R.Civ.P. 15(a)(2) to include more specific allegations in the event that the
court finds his allegations to be insufficient. Under Federal Rule of Civil
Procedure 15(a), a party may amend its pleading after receiving leave of
court, and the court should freely give leave when justice so requires.
Fed.R.Civ.P. 15(a)(2). Moreover, “the Supreme Court has encouraged
generous application of this rule generally, allowing leave to amend in the
absence of evidence of undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowing the
amendment [or] futility of amendment.” Deen-Mitchell v. Lappin, 2012 WL
15

74900, *4 (M.D. Pa. Jan. 10, 2012) (citing United States v. Verdekal, 2011
U.S. Dist. LEXIS 149616, at*7 (M.D.Pa. Dec. 30, 2011) (citations and internal
quotation marks omitted)). Given this, the court will grant the plaintiff’s request
to amend his complaint to cure the deficiencies of his complaint as discussed
above.
Further, in order to clarify the scope of the plaintiff’s amended
complaint, the court will address the other arguments raised by the defendant
in its motion to dismiss. The defendant also argues in its motion that the
plaintiff’s complaint should be dismissed for failure to comply with the pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure. Here, the
defendant argues that the plaintiff’s complaint fails to sufficiently plead the
specific substance of the alleged defamatory statements as to provide
adequate notice of the plaintiff’s claims.
With respect to this argument, the Federal Rules of Civil Procedure do
not require fact pleading, but only notice pleading. See Roskos v. Sugarloaf
Twp., 295 F.Supp.2d 480, 492 (M.D.Pa. 2003); Fed. R. Civ. P. 8. Pursuant to
Federal Rule of Civil Procedure 8(a)(2), a complaint need only provide “‘a
short and plain statement of the claim showing that the pleader is entitled to
relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and
the grounds upon which it rests,’” Twombly, 550 U.S. at 555 (citation omitted).
While federal notice pleading does not require detailed factual allegations, the
complaint must provide sufficient factual detail in order to provide notice of the
16

claim asserted. Id. (citation omitted). See also Phillips, 515 F.3d at 232
(citation omitted).
“[F]or a defamation claim brought in federal court, the plaintiff does not
have to plead the precise defamatory statements as long as the count
provides sufficient notice to the defendant.” Roskos, 295 F.Supp.2d at 492.
See also Reager v. Williams, 2009 WL 3182053 at *5 (M.D.Pa. Sept. 25,
2009) (quoting Roskos, supra).
In the instant case, the court finds that the complaint provides sufficient
notice to the defendant of the nature of plaintiff’s defamation case to survive
this aspect of the defendant’s motions to dismiss. To this extent, for each of
the articles or editorials challenged by the plaintiff, he provides the date that
the article or editorial was published, as well as a short statement or
summarization of the information which he alleges to be defamatory. For
example, the plaintiff alleges that on January 12, 2012, the defendant
published an editorial which contained false or misleading information that
gave the impression that the plaintiff was criminally responsible in either the
break in, or cover up to a break in, at his own zoning office. The plaintiff
attaches the publication to his complaint so that it may be examined in
context. While the plaintiff does not quote the exact language printed in the
editorial which he alleges is defamatory, the plaintiff’s allegation is sufficient
to put the defendant on notice of the plaintiff claims. The plaintiff provides
similar allegations with respect to each of the articles which he claims
17

contains false or misleading statements.
Given that the court finds that the plaintiff’s allegations are sufficient to
meet the requirements of Fed.R.Civ.P. 8 and to put the defendant on notice
of the claims against it, the plaintiff will not be required to set forth with any
further specificity the statements which he alleges to be defamatory.
Finally, citing to Pierce v. Capital Cities Communications, Inc., 576 F.2d
495 (3d Cir.), cert. denied, 439 U.S. 861 (1978), the defendant argues that the
Third Circuit has foreclosed defamation by implication claims involving a
public official as being incompatible with the First Amendment. The defendant
argues that the same free speech concerns that led to the decision in Pierce
have similarly compelled other jurisdictions to reject libel by implication claims
as per se not actionable by public officials.
In considering the defendant’s argument, the Third Circuit has
discussed the interplay between state and federal law in defamation cases,
stating that “[a]lthough a defamation suit has profound First Amendment
implications, it is fundamentally a state cause of action.” Tucker v. Fischbein,
237 F.3d 275, 281 (3d Cir. 2001). Under Pennsylvania state law, courts have
recognized that a claim for defamation may exist where the words utilized
themselves were not defamatory in nature, but the context in which they were
issued created a defamatory implication. See e.g., Thomas Merton Ctr. v.
Rockwell Int’l Corp., 442 A.2d 213, 216 (Pa. 1981) (discussing defamation by
innuendo). Similarly, Pennsylvania courts have recognized that “the literal
18

accuracy of separate statements will not render a communication ‘true’ where
. . . the implication of the communication as a whole was false.” See Dunlap
v. Phila. Newspapers, Inc., 48 A.2d 6, 15 (Pa.Super. 1982).
Moreover, just recently, the Third Circuit recognized libel by implication
cases involving public officials. In Kendall v. Daily News Publishing, Co., 716
F.3d 82 (3d Cir. 2013), Judge Leon A. Kendall, formerly on the Virgin Islands
Superior Court, alleged that the Daily News and Joy Blackburn defamed him
while reporting on his decisions to release a charged defendant on his own
recognizance, to place another individual under house arrest, and to retire.
Judge Kendall’s case proceeded to a jury trial, after which the jury returned
a verdict in his favor. The defendants moved for a judgment notwithstanding
the verdict and the Superior Court granted the motion directing a verdict in the
defendants’ favor. Judge Kendall appealed to the Virgin Islands Supreme
Court which affirmed the Superior Court’s judgment on the ground that Judge
Kendall could not prove actual malice for any of the statements he claimed
were defamatory. Judge Kendall requested certiorari which the Third Circuit
granted.
In considering Judge Kendall’s appeal, the Third Circuit found that the
actual malice standard in ordinary defamation cases was different from the
actual malice standard in defamation by implication cases. In ordinary
defamation cases, the court indicated that intent to defame can be
established solely through knowledge that the statement was false. In
19

defamation by implication cases, which are capable of two possible meanings,
one that is defamatory and one that is not, the court held that there are two
elements to establish actual malice: a “falsity” element and a “communicative
intent” element.
To satisfy the “falsity” element, i.e., the extent to which the defendants
must be aware that the defamatory meaning of their statement is false, the
court stated that the plaintiff must show that the defendants either knew that
the defamatory meaning of their statement was false or were reckless in
regard to the defamatory meaning’s falsity.
As to the “communicative intent” element, the Third Circuit indicated that
mere knowledge or awareness of defamatory meaning did not suffice, as such
a standard would result in a constitutional malice finding “no matter how
unlikely it is that a listener would interpret the statement as having defamatory
meaning.” Id. at 91. Instead, the court indicated that the communicative intent
element can be satisfied by demonstrating that the defendant either intended
to communicate the defamatory meaning or knew of the defamatory meaning
and was reckless in regard to it. The court stated that a minimum of reckless
disregard of the defamatory meaning by clear and convincing evidence
incorporated the Supreme Court’s broad protection in public official cases for
defamatory speech because it “requires that the defendants knew that the
defamatory meaning was not just possible, but likely, and still made the
statement despite their knowledge of that likelihood.” Id.
20

Ultimately, the Third Circuit agreed with the Virgin Islands Supreme
Court’s ruling that the plaintiff had not established actual malice with respect
to his defamation by implication claim and therefore affirmed.
Although the court in Kendall applied Virgin Islands law, courts within
the Third Circuit, applying Pennsylvania law, have also recognized the viability
of libel by implication claims involving public figures. See e.g., Mzamane v.
Winfrey, 693 F.Supp.2d 422 (E.D.Pa. 2010) (deciding libel by implication
claim brought by public figure, i.e., a former headmistress of a South African
school for girls, against the school’s founder, Oprah Winfrey, a prominent
television personality).
The point being, a defamation by implication claim by a public official is
still a viable claim, despite the defendant’s attempt to argue to the contrary.
However, that being said, as with the original claims of defamation, the
plaintiff has a high hurdle to clear to adequately alleging actual malice in
relation to the defamation by implication claim, as discussed above. As such,
in amending his complaint, to the extent that the plaintiff wishes to bring a
defamation or false light by implication claim, he is to adequately plead the
actual malice requirements of such a claim.
On the basis of the foregoing, an appropriate order shall issue.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: September 30, 2013
O:\Mannion\shared\MEMORANDA - DJ\2012 MEMORANDA\12-1886-01.wpd

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