220 N.C. App. 299
N.C. Ct. App.2012Background
- In April 2010, Lewis, serving as Senior Resident Judge of Judicial District 13B, campaigned for reelection while backing Rabon; Rapp supported Bettie Fennell against Rabon.
- On April 9, 2010, Rapp posted a blog alleging that sitting judges campaigning for candidates violated Canon 7 of the NC Code of Judicial Conduct.
- Plaintiff's attorney informed Rapp by email that Canon 7B(2) allowed a judge who is a judicial candidate to endorse another candidate, and cited a memorandum from Chief Judge Martin from February 26, 2010.
- On April 12, 2010, Rapp published another post apologizing for the April 9 statement and asserting probable cause for disciplinary action, but he did not include Canon 7B(2) in the appendix.
- On April 14, 2010, Lewis filed a libel suit seeking monetary damages and various injunctions.
- After discovery, Rapp moved for summary judgment (Feb. 3, 2011); Lewis moved for partial summary judgment (June 9, 2011); the trial court denied the partial summary judgment and granted Rapp summary judgment, prompting Lewis to appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 9 April publication was libel per se with actual malice | Lewis contends the 9 April post defamed her in her official capacity with actual malice. | Rapp argues no actual malice and that the statement was not proven false with knowledge or reckless disregard. | No genuine issue of material fact on actual malice; 9 April publication not shown with convincing clarity. |
| Whether the 12 April publication was libel per se and not protected as opinion | Lewis asserts 12 April continued the false accusation of code violation and was not protected opinion. | Rapp asserts the 12 April post was an opinion protected by the First Amendment. | 12 April publication was defamation per se and not protected as opinion; evidence supports actual malice. |
| Whether the 12 April publication creates a genuine issue of fact for actual malice | Lewis argues the evidence shows actual malice; the publication was knowingly false. | Rapp contends absence of knowledge of falsity and lack of reckless disregard. | Sufficient evidence to allow a jury to find actual malice with convincing clarity; genuine issue of material fact exists. |
Key Cases Cited
- Varner v. Bryan, 113 N.C.App. 697 (1994) (actual malice standard for public officials; convincing clarity required at summary judgment)
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (1989) (opinions on public concerns; false factual connotations negate protection)
- Daniels v. Metro Magazine Holding Co., L.L.C., 179 N.C.App. 533 (2006) (opinions vs. provable facts; exceptions to protection for statements framed as opinion)
- Cohen v. McLawhorn, 704 S.E.2d 519 (2010) (impeachment of a professional through false statements; defamation per se considerations)
- St. Amant v. Thompson, 390 U.S. 727 (1968) (reckless disregard requires more than failure to investigate; serious doubts about truth)
- Renwick v. News & Observer Publishing Co., 310 N.C. 312 (1984) (contextual interpretation of statements; ordinary understanding)
- Gaunt v. Pittaway, 135 N.C.App. 442 (1999) (statements of opinion on public concern; protected when no provable false connotations)
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) (defamatory statements framed as opinion may still be actionable if false connotations exist)