Mathews v. McCownMathews v. McCown
*1
This opinion is subject to revision before final
publication in the Pacific Reporter
S UPREME C OURT OF THE S TATE OF U TAH
K YLE and R YAN S ORENSEN , Appellants , v. HARLES C C , C AMILLE H IGGINS , and J AY N IELSEN ,
Appellees . No. 20230662 Heard December 9, 2024 Filed August 14, 2025 On Direct Appeal Third District Court, Tooele County The Honorable Teresa L. Welch No. 220301601 Attorneys: Janet M. Conway, Wanship, Timothy C. Houpt, C. Michael Judd,
Salt Lake City, for appellants
Steve H. Bergman, Yuchen Cook, Salt Lake City, for appellee Charles McCown
Robert E. Mansfield, Megan E. Garrett, Salt Lake City, for appellee
Camille Higgins
Brent N. Bateman, J. Tayler Fox, Justin T. Rich, John Tipton, Salt Lake City, for appellee Jay Nielsen
A SSOCIATE HIEF J USTICE P EARCE authored the opinion of the Court, in which J USTICE P ETERSEN , J USTICE H AGEN , J USTICE P OHLMAN , and J UDGE T ENNEY joined. Having recused himself, C HIEF J USTICE D URRANT does not participate herein; C OURT OF A PPEALS J UDGE R YAN D. T ENNEY sat. C
A SSOCIATE HIEF J USTICE P EARCE , opinion of the Court:
INTRODUCTION Before January 2022, Erda was an unincorporated area of
Tooele County. The record before us does not reveal whether Erda was a peaceful idyll before residents started exploring the idea of incorporation. But the record undoubtedly reflects a community awash in litigation since incorporation efforts began. Several lawsuits have been filed, and the public dialogue has been, at least at times, rife with accusations of fraud and misdeeds. This appeal arises out of those accusations. Kyle Mathews and Ryan Sorensen (Appellants) sued
Camille Higgins, Jay Nielsen, and Charles McCown (Appellees). [1] Appellants alleged that Appellees defamed them—and committed the tort of invasion of privacy/false light (false light)—when they publicly accused Appellants of a variety of bad acts in connection with Erda’s incorporation. There is no question Appellees made the statements. But Higgins and Nielsen, who each filed a motion to dismiss, asserted that the statements were not capable of defamatory meaning and were privileged. McCown, for his part, claimed that his statements were protected because he made them while participating in the process of government. He filed a motion for judgment on the pleadings based on Utah’s Citizen Participation in Government Act, which is also known as the Anti- SLAPP Act. The district court granted Appellees’ motions. The court
concluded that Higgins’s and Nielsen’s “statements were made in the context of a public debate regarding the incorporation of Erda” and were therefore not capable of defamatory meaning. The court also ruled that the statements were privileged. The court dismissed Appellants’ false light claims against Higgins and Nielsen for the same reasons. The court additionally concluded that the Anti- SLAPP Act protected McCown from the claims asserted against him and granted his motion for judgment on the pleadings. Appellants contend that the district court erred when it ruled that Higgins’s and Nielsen’s statements were not capable of defamatory meaning and were subject to qualified privileges. They
[1] When referring to Sorensen, the parties toggle between “Sorensen” and “Sorenson.” We opt to use Sorensen—the spelling used in the complaint and appellate captions.
argue that the district court incorrectly concluded that they failed to adequately plead their false light claims against Higgins and Nielsen. And they assert that the district court misinterpreted the Anti-SLAPP Act to hold that it shielded McCown from liability. We see merit in Appellants’ arguments. At least some of Higgins’s and Nielsen’s statements are capable of defamatory meaning. And the district court, on motions to dismiss, should not have dismissed the claims on privilege grounds. The district court also erred when it relied on those rationales to dismiss the false light claims. Finally, the Anti-SLAPP Act does not apply to McCown’s statements. We reverse and remand.
BACKGROUND [2] Incorporation of Erda According to the complaint, efforts to incorporate Erda began as early as 2018. Appellants were involved in those efforts. Mathews founded the Erda Community Association (ECA), an organization that helped sponsors place a ballot measure to incorporate Erda before voters. Mathews “worked actively—but quietly—in assisting sponsors of a ballot measure to incorporate the City of Erda.” Sorensen served as one of five incorporation sponsors and as an ECA board member.
[2] Because the court decided motions to dismiss for failure to state a claim and a motion for judgment on the pleadings, “we accept the factual allegations in the complaint as true and interpret those facts, and all reasonable inferences drawn therefrom, in a light most favorable to the plaintiff as the nonmoving party” and “recite the facts accordingly.” 1600 Barberry Lane 8 LLC v. Cottonwood Residential O.P. LP , 2021 UT 15, n.1, 493 P.3d 580 (cleaned up); see also Golding v. Ashley Cent. Irrigation Co. , 793 P.2d 897, 898 (Utah 1990) (reciting the facts on appellate review of the grant of a motion for judgment on the pleadings in accordance with this standard of review). We stress that these allegations have yet to be tested or proven.
On the question of whether a statement is susceptible to a
defamatory interpretation, we do not interpret “inferences that
may be reasonably drawn from the statements in favor of a
defamatory meaning.”
Jacob v. Bezzant
,
¶7 In October 2018, incorporation proponents submitted a feasibility study request to the Lieutenant Governor. This included a proposed map of Erda and signatures from property owners in the proposed incorporation area. The Lieutenant Governor asked the proponents to make certain boundary adjustments, amend the map, and gather additional signatures. Appellants then met with various Erda property owners.
Mathews met with John and Mark Bleazard and showed them the amended map. That map included land referred to as the “Six Mile property,” which the Bleazards, among others, owned. The Bleazards signed the feasibility study request in late December 2018. Sorensen met with Judy Warr, who also owned property included in the amended map, and she, too, signed the feasibility study request. The incorporation sponsors submitted the amended map,
with the additional signatures, in January 2019. Between January and August 2019, the Lieutenant Governor’s office sought to verify that the signatories had signed on behalf of their respective ranch properties, as the amended map depicted. The Lieutenant Governor’s office made multiple efforts to confirm that with the Bleazards. In August 2019, the Lieutenant Governor’s office certified the request for a feasibility study. By February 2020, the feasibility study had been
completed, allowing proponents to proceed with the incorporation ballot measure. In November 2020, voters approved Erda’s incorporation.
Six Mile Ranch Company Lawsuits and Community Discussion Shortly after the ballot measure passed, the Six Mile Ranch Company (Six Mile) filed a lawsuit challenging Erda’s incorporation. The lawsuit named multiple individuals as defendants, including Appellants. The complaint alleged that one or more of the defendants had fraudulently modified the feasibility study request to make it appear as if the Bleazards signed on behalf of the Six Mile property instead of as individual property owners. Someone uploaded a copy of Six Mile’s complaint to a community Facebook group called “Erda Neighbors.” Another person commented that Six Mile’s lawsuit was baseless. [3] Higgins, an Erda resident and relative of the Bleazards, responded to that post. In December 2020, she wrote that “the same people who committed/participated in the fraudulent actions referred to in this complaint are the same people who will be deciding the formation of an Erda City government & voting districts.” She continued that “it looks like Incorporation Sponsors literally used & benefited [sic] from my relatives’ property by doctoring a signature page so they could make the required land mass necessary for the feasibility study to even take place.” [4] In December 2021, Ron Hatfield, Nielsen’s business partner, posted a link in Erda Neighbors to a change.org petition that he had created to stop “a group of really bad people.” Hatfield wrote that he “and a group of landowners . . . want these mean people to quit their illegal maneuvering and under-the-table activity. With this petition we want the Lt. Governor to NOT
[3] Six Mile’s first lawsuit was dismissed at some point after December 2020 but before November 2021. The case appears to have been dismissed on jurisdictional grounds.
[4] Appellants challenged Higgins’s December 2020 statements as
defamatory in their complaint but appear to concede on appeal that
these statements fall outside the statute of limitations. On appeal,
Higgins does not argue that to the extent Appellants’ defamation
claim against her is based on these statements, the claim should be
dismissed on statute of limitations grounds, nor did she make that
argument in her motion to dismiss. But in the hearing on her
motion, Higgins’s counsel noted to the district court that because
Higgins’s December 2020 statements were made “[m]ore than two
years prior to the complaint,” the court could not consider them in
light of the “one-year statute of limitations.”
See
U TAH ODE § 78B-
2-302(4) (“An action may be brought within one year: . . . for libel,
slander, false imprisonment, or seduction . . . .”);
see also Jensen v.
Sawyers
,
OVERLOOK their illegal acts and hold them to the law . . . . The whole city is divided by these nut cases.” [5] In the online petition’s comments section, Nielsen, an Erda property owner, wrote that “[t]he Erda sponsors committed fraud which was well documented and part of lawsuits against the Lieutenant Governor’s office because the former director of elections was pushed into accepting those doctored documents, which he had told them were not acceptable.” That same month, Higgins, Nielsen, and McCown, also an Erda resident, made additional statements about Six Mile’s lawsuit and Erda’s incorporation. In the Erda Neighbors group, for example, Nielsen posted a link to Six Mile’s first complaint with instruction to “[r]ead about the well documented fraud here.” In a different Facebook group, “Erda City 411,” McCown posted an email he sent to the Utah State Elections Office, in which he stated that sponsors did a “pen and ink alteration”—a “forgery and a fraud in the opinion of a large portion of the population of the area.” And Higgins posted the following in Erda Neighbors:
Six Mile did not sign for the feasibility study. Two owners signed under the pretense—told to them by the sponsors—that they were signing for their individually owned properties in East Erda. Not for Six Mile Ranch properties. You can look up their affidavits if you’d like their full testimonies . . . the suit was dismissed because the election had already happened & because the plaintiffs filed as an incorporation & not as individuals. The dismissal does not negate the sworn affidavits submitted by the landowners stating the misuse of their signatures & property used by the sponsors to dilute the tax vs land mass ratio required to incorporate. McCown then sent letters to some Erda residents, in which
he requested their support for a petition to dissolve Erda. The letters directed readers to his website: free-erda.com. In the letters, McCown also stated that the ECA
is the group behind all of the referendums and some of the lawsuits that have created severe division and [5] Appellants do not base their claims on Hatfield’s statements. strife in our community. They are the reason we do not have a temple in Erda . . . . The same group, by and large, were also the sponsors of the City of Erda campaign. Their stated goals were simply to control the zoning of Erda . . . In my heart, if all of the electorate knew of the rulebreaking, fraud and forgery that went into the feasibility study, there is no way it would have passed. In February 2022, the month after Erda received its
certificate of incorporation, Six Mile filed a second lawsuit against several people, including Appellants. This lawsuit prompted additional online discussion. McCown, for example, made several statements about the case in Erda City 411. He said that he was “[g]lad to see all the fraud and lies get a chance to be prosecuted at a fair hearing.” He also wrote that “[t]here is plenty of PROOF from ECA folk that they lie” and remarked that the “creation of a city based on lies, fraud, misrepresentation, [and] forgery is a WOW.” Over the next few months, McCown continued commenting on Six Mile’s cases. At a Tooele County Council special meeting, during which the Council discussed Erda-related matters, McCown stated that:
It is no secret I am trying to organize enough people to dissolve the City of Erda. . . . With the fraud committed during the feasibility study—I consider it is a criminal thing that happened to us that wasn’t well known to the citizens of Erda. I don’t think that it would ever have passed if all the citizens knew all of the things that happened—from the map to the Six Mile Ranch pen and ink fraudulent markings up of the document. He also posted in a Facebook group called “Erda Republic
of America” about the “sponsors[’]” and the “ECA[’s] . . . involve[ment] in forgery.” In his post, he referred to the incorporation sponsors and those affiliated with the ECA as “forgers, fraudsters, and felons.” McCown, in March 2022, accused Sorensen of “altering a
document after it was signed and then fraudulently submitting it to a government agency.” That same month, Higgins commented on that post, writing, “[The ECA] has egregiously defrauded the entire community with its gross double standards. Everything they’ve said about protecting rural life and water resources is a lie.” She added that the ECA was “defrauding cattle ranchers.”
¶23 Under one of McCown’s posts in Erda Republic of America about the feasibility study, Nielsen commented that “[t]he courts need to hear this in detail, complete with all necessary witnesses. There are significant harms which have resulted from this outrageous and well-documented fraud.”
¶24 Six Mile then filed a third lawsuit against Appellants, in addition to other defendants, again asserting fraud allegations. Shortly after the case was filed, McCown posted a copy of the complaint in Erda Republic of America with the accompanying text: “the best April Fools Joke Ever!!!” Higgins responded to McCown’s post, adding that “[a] more appropriate title for the post is Best April Fraud Joke Ever.” Appellees continued making statements about the
lawsuits throughout 2022. McCown maintained his fraud accusations against the ECA and the incorporation sponsors, referring to them as “crooks.” At an Erda City Council meeting, McCown accused the City Attorney of “being a criminal conspirator with [a councilman] and the ECA of crimes against the city and the city council.” Around that time, in response to one of McCown’s posts
in Erda Republic of America, Nielsen wrote that “[f]ortunately, the fraud is very well documented . . . and there is a judge who follows the law. Our attorneys are pleased with the situation. There is more which has happened too, which must come to light.” Higgins also stated that it was “a shame city sponsors defrauded and frivolously sued landowners instead of working with them.”
District Court Proceedings Appellants sued Appellees, asserting claims for
defamation and false light against each defendant. Appellants alleged that Appellees’ statements were false. Appellants also alleged that they had “been damaged by the[] false and defamatory statements, because the statements subject [Appellants] to hatred, ridicule, contempt, and disgrace.” Higgins and Nielsen each moved under rule 12(b)(6) of the
Utah Rules of Civil Procedure to dismiss the complaint for failure to state a claim. They both argued that Appellants failed to plead that they made their alleged statements with the requisite degree of fault, that their statements were incapable of defamatory meaning, that their statements were opinions, that their statements were privileged, and that Appellants failed to plead all elements required to sustain their false light claims. McCown also sought dismissal of Appellants’ claims but
on a different ground. He filed a motion for judgment on the pleadings under rule 12(c) of the Utah Rules of Civil Procedure based on Utah’s Anti-SLAPP Act. [6] McCown asserted that the Anti- SLAPP Act protected him from Appellants’ claims. He argued that he made his statements while participating in the “process of government,” and that Appellants filed their complaint primarily to harass him. The district court granted the motions, dismissing all
claims with prejudice. On Higgins’s and Nielsen’s motions to dismiss, the court concluded that the “statements were made in the context of a public debate regarding the incorporation of Erda” and “that even if a per se defamation statement were triggered, the inquiry under the 12(b)(6) motion comes down to whether or not the . . . statements [were] capable of conveying a defamatory meaning.” “[B]ased on the content and context of the pertinent statements,” the court held that Higgins’s and Nielsen’s statements were not capable of defamatory meaning. The court also concluded that the pertinent statements were “privileged under the Utah public-interest privilege, fair-report privilege, and fair comment privilege.” The court then ruled that Appellants failed to state claims for false light against Higgins and Nielsen for the same reasons the defamation claims sputtered. With respect to McCown’s motion, the court concluded
that “McCown was participating in [the] process of government based on the content and context in which [his] statements were made” and “that the purpose of [Appellants’] complaint was to prevent, interfere with, or chill public participation in the process of government.” The court relied on an affidavit McCown submitted with his motion to support its conclusions, in which he said, among other things, that he has been “heavily involved in local political issues,” including “the incorporation of Erda.”
[6] McCown also asserted an Anti-SLAPP Act counterclaim against Appellants, who moved to dismiss it. But because of the district court’s rulings on Appellees’ motions, see infra ¶ ¶ 30–32, the court denied Appellants’ motion as moot.
¶32 The court also noted that it incorporated and adopted the reasoning Appellees included in their briefing and at oral argument.
ISSUES AND STANDARDS OF REVIEW
¶33 Appellants contend that the district court erred when it
granted Higgins’s and Nielsen’s motions to dismiss for failure to
state a claim and McCown’s motion for judgment on the pleadings.
We review whether the court properly granted these motions “for
correctness, giving no deference
to
the district court’s
determination[s].”
See Christiansen v. Harrison W. Constr. Corp.
, 2021
UT 65, ¶ 10, 500 P.3d 825 (motion to dismiss);
see also Golding v.
Ashley Cent. Irrigation Co.
,
ANALYSIS This case presents two sets of issues. The first arises out of
the district court’s grant of Higgins’s and Nielsen’s motions to dismiss. The second flows from the court’s grant of McCown’s motion for judgment on the pleadings. Appellants argue that the district court erred when it
granted the motions to dismiss. They claim that the district court erroneously concluded that (1) Higgins’s and Nielsen’s statements were not capable of defamatory meaning; (2) Higgins’s and Nielsen’s statements were privileged; and (3) Appellants’ complaint failed to state claims for false light against Higgins and Nielsen. Higgins and Nielsen assert that we should affirm
dismissal of the defamation claims for two additional reasons. They first argue that the group defamation rule defeats the claims. And they assert that Appellants failed to plead that they made their statements with the requisite degree of fault. Appellants also contend that the district court erred when
it held that the Anti-SLAPP Act shields McCown from liability. They argue that the district court wrongly decided that McCown’s speech amounted to participation in the process of government. They also assert that the district court lacked a basis to conclude that the purpose of Appellants’ complaint was to prevent or chill McCown’s public participation in the process of government. I. T HE D ISTRICT OURT E RRED W HEN I T D ISMISSED A PPELLANTS ’
D EFAMATION LAIMS The district court granted Higgins’s and Nielsen’s motions to dismiss Appellants’ defamation claims. The district court ruled that Higgins’s and Nielsen’s statements were not capable of defamatory meaning based on their “content and context.” It also determined that the statements were privileged. To state a defamation claim, a plaintiff must allege that the
defendant published statements that referred to the plaintiff, that
the statements were false and defamatory, that the statements were
published with the requisite degree of fault, and that the
publication of the statements resulted in damage.
[7]
See West v.
Thomson Newspapers
,
court reviews a motion to dismiss a defamation claim. To
“accommodate the respect we accord [constitutional] protections of
speech,” we do not “indulge [a plaintiff] by interpreting inferences
that may be reasonably drawn from the statements in favor of a
defamatory meaning.”
Jacob v. Bezzant
,
[7] In some circumstances, to prevail on a defamation claim, a plaintiff may also have to show that the defamatory statements were not protected by a privilege. That, however, is not part of a plaintiff’s initial pleading burden. See infra Part I.C.
[8] Higgins argues that because this is a defamation case, Appellants are not entitled to any “favorable interpretation of
(continued . . .) A. The District Court Erred When It Held that Appellants Had Not Pleaded a Statement Capable of Conveying a Defamatory Meaning The district court granted the motions to dismiss because
it concluded that Higgins’s and Nielsen’s statements were not
capable of defamatory meaning.
[9]
The district court based this
ruling on the “content and context” of the statements Appellants
alleged were defamatory. The district court did not detail what
about the statements’ content and context informed its conclusion.
Instead, the court summarily “incorporate[d] and adopt[ed] the
reasoning made by the Defendants in their briefing and oral
arguments.” This puts Appellants in the unenviable position of
arguing on appeal that none of the arguments Higgins and Nielsen
offered below hold water, even if one or more of those arguments
did not form the basis of the district court’s conclusion.
[10]
factual inferences”—full stop. But our precedent merely dictates
that we do not “interpret[] inferences that may be reasonably
drawn from the statements
in favor of a defamatory meaning
.”
Jacob
,
[9] To resolve this appeal, at least against Higgins and Nielsen, we need only conclude that Appellants alleged at least one statement that is capable of a defamatory meaning. When we analyze Appellants’ arguments, we identify at least one statement for each Appellee that can survive a motion to dismiss. We do not, however, parse each quoted statement in the complaint to separate out the entire universe of statements that might sustain a defamation claim. We stress that we offer no opinion on any statement that we do not explicitly address.
[10] We pause to comment on the district court’s order. It is not helpful to either the parties or an appellate court for a trial court to include language like the court “incorporates and adopts the reasoning made by the Defendants in their briefing and oral arguments” in its dismissal order. This may require parties to brief issues that the district court did not find compelling enough to include in its own analysis. And it requires an appellate court to assume that the district court adopted all the arguments in the underlying briefing and in-court presentation, without any insight
(continued . . .) Before the district court, Higgins and Nielsen emphasized three details that, in their view, supported their argument that the statements Appellants included in the complaint were not capable of conveying defamatory meaning. First, the statements were made on social media. Second, the statements related to a matter of public debate. And third, the statements concerned allegations asserted in lawsuits. To begin, the district court got it right when it evaluated
the complaint to see if Appellants had alleged statements that are
capable of defamatory meaning.
See West
,
of defamatory quality but also on the issue of truth or falsity, even
though those issues are distinct from one another.” T HE L AW OF
T ORTS § 526. On a motion to dismiss, the question for the district
court is whether the pleaded statements are capable of defamatory
meaning. If the court concludes that a reasonable person could find
that a statement conveys a defamatory meaning, the plaintiff has
done what she needs to do at the pleading stage on the capable of
defamatory meaning element of her claim.
See id.
;
West
, 872 P.2d at
1008. In that instance, the trier of fact ultimately decides what
meaning the words conveyed and whether that meaning was
defamatory. T HE L AW OF T ORTS § 526;
see West
,
into why the district court thought the arguments were persuasive or even whether the court did indeed find all the arguments to be persuasive. While we certainly understand the instinct to be overinclusive, we cannot condone this approach to satisfy that instinct.
¶46 In Utah, a statement is defamatory if “it impeaches an individual’s honesty, integrity, virtue, or reputation and thereby exposes the individual to public hatred, contempt, or ridicule.” West , 872 P.2d at 1008. A “publication is not defamatory simply because it is nettlesome or embarrassing to a plaintiff, or even because it makes a false statement about the plaintiff.” Id. at 1009 (cleaned up). The plaintiff must show the statement’s tendency to injure his reputation in the eyes of “at least a substantial and respectable minority of its audience.” Id. ; see also id. at 1009 n.16 (stating that the “relevant audience does not consist solely of the plaintiff”). For a statement to be capable of defamatory meaning, the statement must be able to be understood as speaking to a person’s character in a way that puts the person at risk of “public hatred, contempt, or ridicule.” Id. at 1008. “A court simply cannot determine whether a statement is
capable of sustaining a defamatory meaning by viewing individual words in isolation; rather, it must carefully examine the context in which the statement was made, giving the words their most common and accepted meaning.” Id. at 1009. West demonstrates this principle in practice. There, the
mayor of La Verkin, Utah, Terry R. West, sued Thomson Newspapers (dba The Daily Spectrum ) and three of its employees for defamation. See id. at 1000–01. West alleged that The Daily Spectrum defamed him in a series of three editorial columns. The columns criticized him for changing his political position on an important local issue and for attempting to “manipulate the press.” Id. at 1000. In the June column, published on The Daily Spectrum ’s
weekly editorial page, reporter Rick Guldan criticized West for changing his position on whether La Verkin should purchase a municipal power system. Id. at 1000–01. After West met with the paper’s publisher, Donald Hogun, The Daily Spectrum published a letter West wrote to the editor, “in which he refuted, point by point, the criticisms leveled in the June column,” on the paper’s op-ed page. Id. at 1001–02. In the July column, Guldan responded to the issues raised
in West’s letter. at 1002. Guldan wrote, “I said Mayor West had been opposed to municipal power during the election. The mayor claims he never took that position. Several La Verkin citizens[,] however, have told me that prior to the election they were under the impression West was opposed to municipal power . . . .” He continued, saying, “If West never actually came out before the election and said he was opposed to municipal power, he certainly did a masterful job of creating an illusion he was.” Id. That November, Brent Goodey, The Daily Spectrum ’s
managing editor, published a column in the paper’s editorial page: “How I came to ‘love’ La Verkin’s mayor” (November column). Id. Goodey described how West and Phil Phillips, the La Verkin planning commission chairman, “had responded to, and attempted to influence, stories printed in” the newspaper. Id. In summarizing West’s and Phillips’s actions, Goodey said, “The problem I have with the two gentlemen is their repeated, and not to [sic] subtle, attempts to manipulate the press.” Id. West sued The Daily Spectrum , Guldan, Hogun, and
Goodey based upon statements in the June, July, and November columns. Id. West claimed that “the assertion that [he] changed his position on municipal power” was defamatory. Id. West also claimed that republishing the change-of-position statement in the July column defamed him. Id. West did not claim that the change- of-position statements were defamatory on their face. Id. at 1011. Rather, the “implication arising from the statement[s] and the context in which [they were] made . . . form[ed] the basis of West’s claim.” Id. “West [also] sued Goodey and Hogun for the manipulation statement in the November column.” Id. at 1002. The district court dismissed most of West’s claims. It first dismissed the claim premised on the November column, finding that the statement was not capable of a defamatory meaning. Id. Although the court found that the implication arising from the change-of-position statements was capable of such a meaning, the court dismissed the claims arising from the change-of-position statements because they were protected opinions. Id. at 1002–03, 1011. West appealed, and the court of appeals “reversed all of the trial court’s rulings with the exception of the claims against Hogun and Goodey arising from the . . . change-of-position statement[s].” at 1003. We granted defendants’ petition for certiorari. We held that the statement from the November column— that West manipulated the press—was not capable of a defamatory meaning. We found it significant that the statement “appeared in a newspaper editorial, a traditional source of harsh political invective.” Id. at 1009. We explained that “[n]ewspaper readers expect that statements in editorials will be more exaggerated and polemicized than ‘hard news.’” Id. “Readers are therefore less likely to form personal animus toward an individual based on statements made in an editorial,” and they “likewise expect to see public officials criticized in editorial writing and are therefore less likely to rely on it in forming their opinions of the official.” Id. at 1009–10. Goodey also made the statement in “a casual, albeit critical, tone,” such that it was “unlikely that any reader would take it at face value.” Id. at 1010. Indeed, “most readers would view it as exaggerated commentary,” a speech category other courts have not found as defamatory. Id. (citing cases). “[T]he most that [could] be said of the manipulation statement [was] that it criticized West,” and “[s]uch criticism is not defamatory.” [11] Much like the court in West , the district court here reviewed Appellants’ complaint to see if it could find any statements capable of conveying defamatory meaning. But the district court did not show its math and summarily concluded that, based on the “content and context” of (apparently all) the statements, none could sustain a defamation claim. Appellants argue that the district court got it wrong to the extent that the “content and context” were Appellees’ arguments that “the statements were made on social media,” “the statements related to a matter of public debate,” and “the statements concern the allegations in a lawsuit.” Appellants contend that a reasonable person would conclude that the statements were capable of defamatory meaning, even if they were made on social media, were matters of public debate, and were related to litigation. Higgins argued that “[t]he comments identified in the
complaint reflect that [she] was engaged in a hotly debated public controversy in a local Erda Facebook group.” She had also “relayed allegations from several lawsuits, and offered her opinion based upon those allegations.” Given that context, Higgins contended it was unlikely that readers would take her statements at face value and, therefore, they were not capable of defamatory meaning. She argued that “when a Facebook user views a Facebook thread with people arguing different sides of a debated issue, the user
[11] The defendants did not appeal the determination that the implication arising from the change-of-position statements was capable of a defamatory meaning. West , 872 P.2d at 1011. Our analysis therefore assumed that the implication was capable of such a meaning.
understands that both participants are offering subjective arguments.” Nielsen, too, highlighted that his statements “were
published in the context of a contentious debate over the propriety of the Erda incorporation and the related litigation” and were “made either as a comment to a change.org petition or on a Facebook page where people were debating a heated public matter.” Given this context, Nielsen argued that “none of [his] alleged statements [were] capable of conveying defamatory meaning.” To determine whether a statement is capable of sustaining
a defamatory meaning, a court does not view “individual words in isolation; rather, it must carefully examine the context in which the statement was made.” at 1009. Before we analyze the full context of Higgins’s and Nielsen’s statements, however, we believe it useful to review the three features of the statements that Appellants contend may have been—alone or together—the “content and context” the district court referred to. These are (1) the statements were made on social media; (2) the statements related to a matter of public debate; and (3) the statements concerned allegations asserted in lawsuits.
1. Social Media Higgins and Nielsen argued to the district court that a reasonable reader viewing a Facebook thread, for example, would not take statements individuals posted there at face value. That context, according to Higgins and Nielsen, lends support for the conclusion that statements made on Facebook, or on other social media platforms, are not capable of defamatory meaning. Stated more bluntly, and more generally, than Higgins and Nielsen articulate their arguments, they contend something akin to the proposition that everybody understands that social media posts are full of half-truths and exaggerated claims, so it is difficult, if not near impossible, for a social media post to give rise to a successful defamation claim. A “statement’s publication on social media does not
automatically” immunize the publisher from a defamation action.
Bauer v. Brinkman
,
factual information.”
Bauer
,
¶64 West remains good law, and the rationale underlying the contextual analysis West mandates is even stronger when we consider modern social media trends. The district court must “carefully examine the context in which [a] statement was made, giving the words their most common and accepted meaning,” to determine whether the statement is capable of a defamatory meaning. at 1009. To the extent the district court held that because Higgins
and Nielsen made their statements on social media, the statements were categorically incapable of defamatory meaning, it erred. Just as “[a] court simply cannot determine whether a statement is capable of sustaining a defamatory meaning by viewing individual words in isolation,” id. , a court cannot conclude that a statement is incapable of a defamatory meaning merely because a defendant made it on social media. In at least some circumstances, a plaintiff could show that social media posts are capable of defamatory meaning.
2. Public Debate During the hearing on the motions to dismiss, the district court explained that it granted Higgins’s and Nielsen’s motions in part because the statements were made in the context of “a public debate . . . in which opinions were being expressed about disagreements regarding the incorporation or disincorporation of Erda.” And “when you look at [that] context,” the court continued, the statements are incapable of conveying defamatory meaning. Appellants contend that “[e]ven if the incorporation status of Erda is a continued matter of public concern,” and even if the statements took place within the context of a public debate, that does not automatically “compel the conclusion that the statements [are] not susceptible of conveying defamatory meaning.” We have never held that speech related to a matter of public concern, made within the context of a public debate, can never be capable of defamatory meaning. In Russell v. Thomson Newspapers, Inc. , we examined allegations of “misconduct against a local doctor and nurse.” 842 P.2d 896, 902–03 (Utah 1992). We concluded that they were “certainly matters of public concern,” but we reversed the dismissal of the plaintiff’s defamation claims because the statement was “not protected under the fair comment doctrine.” Id. We did not opine on whether statements involving “matters of public concern” are capable of defamatory meaning. See generally id. Appellees rely on a court of appeals case in which the court
held that particular statements regarding matters of public
importance could not sustain a defamation claim.
See Pipkin v.
Acumen
,
criminally for voting for the Bylaw.” Id. ¶ 17. For instance, the defendant sent an email in which he stated that the plaintiffs’ “actions or stunt flouts current election law, it constitutes a class B misdemeanor under section 20A of Utah State Code, punishable by up to six (6) months in jail and a $1,000 fine.” Id. (cleaned up). In a social media post, he also stated, “If you want to, let the #GangOf51 know how you feel about their illegal activity.” [12]
[12] The defendant referred to a “Gang of 51.” Pipkin , 2020 UT App 111, ¶ 5. The court of appeals explained that “[t]he origin of the phrase [was] not entirely clear from the record.” ¶ 5 n.6.
(continued . . .) The court of appeals held that the allegedly defamatory statements—which it regarded as “unquestionably political speech”—were “not susceptible to defamatory interpretation[s] as a matter of law.” Id. ¶¶ 18, 24. But notably, the court did not say that political speech, made in the context of a public debate, could never be capable of defamatory meaning. See generally id. ¶¶ 18–21, 24. Instead, the court held that the specific statements at issue were not susceptible to defamatory interpretations based on their context—that is, a reasonable reader of the statements “would have been aware that the challenged statements were a continuation of” a particular debate, and the defendant “sent the emails in the familiar format of a political email, similar to those that political candidates or parties send attacking their opponents and seeking contributions.” See id. ¶¶ 18–21. To the extent Pipkin can be read as saying that
unquestionably political speech can never be capable of defamatory meaning, that is incorrect. Even if we concluded that Higgins’s and Nielsen’s statements are “unquestionably political speech,” id. ¶ 18, or that they were made in the context of a public debate, that does not end the inquiry. A reasonable reader could find such statements to be capable of defamatory meaning. The parties also dispute the extent to which Jacob , 2009 UT 37, supports the proposition that statements related to a matter of public concern, made within the context of a public debate, can be capable of defamatory meaning. In that case, William Jacob challenged as defamatory
statements in an “Election Notice,” issued in response to a political advertisement Jacob prepared and paid for in a local weekly newspaper. Id. ¶¶ 3–4. The advertisement did not contain Jacob’s name, and it weighed in on a local controversy: whether certain individuals could hold office as city council members because they were city employees. Id. The Election Notice, on the other hand, disclosed Jacob’s identity as the author of the advertisement and contained apologies to the individuals mentioned in Jacob’s advertisement. ¶ 4. We held that, when viewed in context, the Election Notice did not convey a defamatory meaning. See id. ¶ 18. We reasoned that the statements “came within a heated political campaign,” and Jacob conceded that the Election Notice was an Regardless, the defendant “numbered [p]laintiffs among the members of the ‘Gang of 51.’”
editorial. Id. ¶ 30. “As a result, we [did] not find that the words used . . . in [the] Election Notice constitute[d] defamation as a matter of law.” Id. Importantly, however, we did not say that statements coming “within a heated political campaign” could never be capable of defamatory meaning. See id. ¶¶ 30–31. There may be some contexts in which statements made “within a heated political campaign” are capable of defamatory meaning; the speech at issue in Jacob just did not present one of them. Still, Higgins argues that “[s]peech relating to matters of
public concern receive[s] even higher protection.” (Citing
Keisel v.
Westbrook
,
[13] A “sock puppet” is “a false online name and profile created to hide the author’s identity, usually because of personal, political or financial ties to whatever is being discussed or reviewed.” Behind every sockpuppet is a person trying to hide , N EWS L ITERACY P ROJECT , https://newslit.org/tips-tools/news-lit-tip-sock-puppet/ (last visited Aug. 11, 2025).
included those “that characterize[d] Nunes’s actions as either harassment or fraud.” at 1229 (cleaned up). Nielsen claims that the court did not find online accusations of fraud and harassment to be defamatory in part because “the statements were posted in the context of an online debate about an alleged copyright infringement and other inappropriate actions.” While the Nunes court considered the context of these statements, the court did not decide that the statements were not capable of defamatory meaning. See id. at 1231–32. The court instead evaluated the statements’ context to determine whether they were opinions or factual assertions. See id. Moreover, although the court acknowledged that at least some of the statements were “posted in the context of a debate,” that detail was not material to the court’s analysis. See id. Rather, the court found it significant that “[t]he facts implied by” the statements “[were] not criminal, nor [were] they false or defamatory.” The court, as a result, held that the statements were opinions that could not support a defamation claim. See id. Even assuming that Higgins’s and Nielsen’s statements
were made within the context of a public debate, that, at bottom, does not necessarily immunize the statements.
3. Statements Describing Litigation Nor is there any basis for us to conclude that statements describing allegations made in connection with litigation can never sustain defamatory meaning. To determine whether such statements are capable of defamatory meaning, a court must look at the statements in context, “giving the words their most common and accepted meaning.” See West , 872 P.2d at 1009. [14] That a statement is made concerning litigation might be very helpful
[14] To be clear, Utah law recognizes a judicial proceeding
privilege that protects certain statements “made during a judicial
proceeding.”
See Pratt v. Nelson
,
context to understand how a reader would understand the comment, but it is not, by itself, dispositive.
4. Additional Content and Context Appellants argue that the district court erred because the “content and context” the court referred to in its order demonstrate that the challenged statements are capable of defamatory meaning. Appellants assert that Higgins’s and Nielsen’s statements “are factual laden with no cautionary language or exaggeration” and that they made the statements in a “serious” tone. This, according to Appellants, helps demonstrate that the statements are capable of defamatory meaning. We have looked at the substance of an allegedly
defamatory statement, as well as the tone in which a defendant
made it, to assess whether the statement was capable of a
defamatory meaning. In
West
, we held that the statement accusing
West of attempting to manipulate the press,
considering its content and tone, could be capable of defamatory meaning. In Higgins’s March 2022 post, for example, she wrote in Erda Republic of America that “[The ECA] has egregiously defrauded the entire community with its gross double standards. Everything they’ve said about protecting rural life and water resources is a lie.” She added that the ECA was “defrauding cattle ranchers.” And in Nielsen’s first post, he declared that “[t]he Erda
sponsors committed fraud” that was “well documented and part of lawsuits.” These statements lack rhetorical hyperbole, exaggeration,
incredulous tones, cautionary language, or other signals that would lead a reasonable reader to not take the statements at face value. Rather, the statements conveyed more serious, matter-of-fact tones, suggesting that a reasonable reader could understand them as factual assertions about Appellants. We agree with Appellants that this supports a conclusion that these statements are capable of defamatory meaning. Higgins argues otherwise, contending that her statements
included “cautionary language and hyperbole.” She asserts that “[s]he preface[d] that she is the daughter of the plaintiff in the other action.” She also points to language such as, “I don’t know the answers to the questions posed here” and “I am extremely frustrated.” She maintains that these statements couched her other statements, and that this language is coupled with obvious examples of hyperbole, including “it is absolutely wrong,” “it’s quite obvious,” and “egregiously.” Higgins’s March 2022 post (the one just discussed) lacked
much of this hedging. Although Higgins used the word “egregiously,” whether the post is capable of defamatory meaning does not turn on the proposition that Appellants acted egregiously. That is, the problematic part of the post is not that “[The ECA] . . . egregiously” did anything; it is that Higgins stated, without any signal expressing doubt, that the ECA “ defrauded the entire community” and “cattle ranchers.” (Emphasis added.) While perhaps a reader is unlikely to take at face value that the ECA egregiously defrauded the community, we think that, based on the omission of any additional hedging and caution, a reader could understand Higgins’s statements—that the ECA defrauded the entire community and cattle ranchers—as facts about Appellants. To be sure, we can envision circumstances in which including descriptors like “egregiously” might signal to a reader that a statement is hyperbole. Higgins’s March 2022 statement is just not one that contains a signal so strong that a reader would necessarily understand that Higgins was attempting to communicate something other than facts about Appellants. Higgins is free to argue to the trier of fact that her statement did not defame Appellants, but Appellants have pleaded a statement that is capable of defamatory meaning. As such, it was error to dismiss the defamation claim based on this statement. Nielsen similarly argues that he made his statements at a
time when “emotions were running high.” As evidence, he notes that his statements can only be understood as expressions of his personal view on the “very-public controversy surrounding the incorporation of Erda.” But as we explained, see supra ¶¶ 66–78, there are no per se rules about whether statements are capable of defamatory meaning in the context of a “very-public controversy.” In any event, nothing about Nielsen’s first post was emotionally charged. Rather, he stated that “[t]he Erda sponsors committed fraud which was well documented and part of lawsuits.” Nielsen might be able to convince a jury that the relevant community would not have interpreted this as defamatory in light of the community’s knowledge of the ongoing dispute, but he cannot successfully claim at the motion to dismiss stage that his accusation of fraud is not capable of a defamatory meaning. Higgins and Nielsen also assert that their statements are
not capable of defamatory meaning because they do not directly
accuse Appellants of criminal conduct.
[15]
We have held that, depending on the circumstances,
accusations of dishonesty can be capable of a defamatory meaning.
See Prince v. Peterson
,
[15] The parties also dispute whether any of the challenged
statements amount to defamation per se, but we need not decide
this because the question before us is whether the statements are
capable of defamatory meaning.
See West
,
v. Montgomery Ward & Co.
,
arguments. They both contend that because most of their
statements were made as comments or responses to other
individuals, they are less likely to be capable of defamatory
meaning. That appears to be a distinction without significance. At
the very least, the assertion is not self-evident, and neither Higgins
nor Nielsen has given us any authority for the proposition that
responses to comments are incapable of defamatory meaning.
Higgins also emphasizes that her statements “appear[ed]
in the type of public forum that ensures both parties are able to
respond and engage in discussion.” (Citing
Spencer v. Glover
, 2017
UT App 69,
the conclusion that a reasonable reader could find that at least one
of Higgins’s and Nielsen’s statements is capable of a defamatory
meaning.
[16]
See West
,
B. The District Court Erred to the Extent It Held that Higgins’s and Nielsen’s Statements Are Opinions Higgins and Nielsen argued to the district court that their statements were opinions and therefore could not be the basis of Appellants’ defamation claims. In its order, the district court did not dismiss Appellants’ claims because they were opinions, at least explicitly. But the court “incorporate[d] and adopt[ed] the reasoning made by the Defendants in their briefing and oral arguments,” leaving open the possibility that the court dismissed the claims on this ground. On appeal, the parties dispute whether Higgins’s and Nielsen’s statements are opinions and, accordingly, whether they can support Appellants’ defamation claims. In West , we recognized that the “Utah Constitution provides an independent source of protection for expressions of opinion,” so long as they do not “state[] or impl[y] facts that are
[16] By way of reminder, the question for the court on a motion to
dismiss is whether the statement is capable of defamatory meaning.
See West
,
The parties, at times, approach the West factors as a means to determine whether statements are capable of defamatory meaning. But whether statements are capable of defamatory meaning and whether statements are protected under our constitution as opinions are separate inquiries. [17] at 1007–12. It can be important
[17] While we have never held that statements are not capable of
defamatory meaning because they are opinions, or that statements
are capable of defamatory meaning because they are facts, the court
of appeals has held that statements were capable of defamatory
meaning because, applying the four-factor test, “there [was]
sufficient reason to find all of them to be statements of fact rather
than opinion.”
See RainFocus Inc. v. Cvent Inc.
, 2023 UT App 32,
¶¶ 40–41, 528 P.3d 1221. Also, in
Spencer
, the court of appeals’
decision can be read as saying that an online review was not
capable of a defamatory meaning because it constituted an
expression of opinion.
(continued . . .)
M to keep these inquiries analytically separate because while the
question of whether a statement is a constitutionally protected
opinion is one for the court, the question of whether the statement
is defamatory belongs to the trier of fact.
[18]
There is also a lingering question of whether a defamation
plaintiff is entitled to an inference, on a motion to dismiss, that a
pleaded statement is one of fact. It appears that we have never
squarely addressed the question. It is entirely consistent with the
respect we afford constitutionally protected speech to not grant a
plaintiff the benefit of an inference that a pleaded statement is one
of fact and not opinion. Not only does this align with
West
,
id.
at
1018–21, but it comports with what we have said about “denying a
nonmoving party the benefit of a favorable interpretation of factual
inferences” to “accommodate the respect we accord [constitutional]
protections of speech,”
Jacob
,
1. Higgins In her March 2022 post, Higgins asserted that the ECA “egregiously defrauded the entire community with its gross double standards. Everything they’ve said about protecting rural life and water resources is a lie.” She added that the ECA is “defrauding cattle ranchers.” When we run these statements through the factors West outlined, we conclude that the statements are facts, not constitutionally protected opinions. The common usage or meaning of these words—the first
West factor—lends support for that conclusion. After all, “defraud” means “to deprive of something by deception or fraud,” Defraud , ERRIAM -W EBSTER , https://www.merriam-webster.com/diction ary/defraud (last visited Aug. 11, 2025), and “to take something illegally from a person, company, etc., or to prevent someone from having something that is legally theirs, by making statements that are not true,” Defraud , C AMBRIDGE , https://dictionary.cambridge.o ¶¶ 21, 29. The better approach, as mentioned, is to separately analyze whether a statement is capable of defamatory meaning and whether a statement is a constitutionally protected opinion.
[18] And, just to be clear, the ultimate question of whether a statement is defamatory is separate from the question of whether a statement is capable of defamatory meaning. That threshold question can be placed before the court by motion. rg/us/dictionary/english/defraud (last visited Aug. 11, 2025). And “fraud” means the “intentional perversion of truth in order to induce another to part with something of value or to surrender a legal right,” as well as “an act of deceiving or misrepresenting.” Fraud , M ERRIAM -W EBSTER , https://www.merriam-webster.com/d ictionary/fraud (last visited Aug. 11, 2025). When Higgins said that the ECA “defrauded the entire community,” including “cattle ranchers,” the common meaning of these statements is that Higgins was asserting that Appellants lied or misrepresented things to others. Notably, Higgins made her statements as if they were
settled facts. In essence, she stated the conclusion that the ECA “egregiously defrauded the entire community with its gross double standards.” She added that the ECA “defraud[ed] cattle ranchers.” Even assuming that the word “egregiously” amounts to hyperbole, the substance of Higgins’s March 2022 post is that the ECA “defrauded” the community. Higgins failed to include any cautionary language indicating that her statements were merely opinions or unproven allegations in a lawsuit. These statements instead are assertions of fact. Higgins maintains that the common usage of the words
in her statements “indicates that they are not defamatory factual statements regarding Appellants.” Higgins cites Westmont Residential LLC , in which the court of appeals held that the word “crooks,” which, according to Higgins, carries similar connotations that Appellants assert as the basis for their claims, “can carry a criminal connotation, [but] in the context of [the] online review [at issue], the term [was] clearly not being used in this manner.” 2014 UT App 291, ¶ 24. Words like “fraud” and “defraud,” like the word
“crooks,” can carry criminal connotations in some contexts. Fraud , B LACK ’ S L AW D ICTIONARY (12th ed. 2024) (defining “fraud” as “[a] knowing misrepresentation or knowing concealment of a material fact made to induce another to act to his or her detriment” and explaining that “[f]raud is [usually] a tort, but in some cases ([especially] when the conduct is willful) it may be a crime”); see also Defraud , B LACK ’ S L AW D ICTIONARY (12th ed. 2024) (defining “defraud” as “[t]o cause injury or loss to (a person or organization) by deceit; to trick (a person or organization) in order to get money” and referring users to the definition of “fraud”). The best understanding of Higgins’s statements is that she was accusing Appellants of committing crimes and not offering opinions about their character or conduct. Higgins also claims that her “statements never reference
Appellants’ businesses or actions with respect to any of their business.” But Higgins does not support this assertion with any case in which we have held that a defendant’s statements must reference a plaintiff’s business to be actionable for defamation. Finally, Higgins maintains that she “is clearly sharing her own conclusions and beliefs about the litigation.” For support, she cites to La Liberte v. Reid , in which a court held that “accusations of concrete, wrongful conduct are actionable while general statements charging a person with being racist, unfair, or unjust are not.” 966 F.3d 79, 93 (2d Cir. 2020) (cleaned up). This does not support Higgins’s position; on the contrary, Higgins asserted “accusations of concrete, wrongful conduct”—that the ECA defrauded the community—not “general statements charging a person with being racist, unfair, or unjust,” or any other descriptor. See id. (cleaned up). The second West factor—whether the statements are
objectively verifiable—also supports the conclusion that Higgins’s
statements are facts. Whether Appellants “defrauded the entire
community,” including “cattle ranchers,” is a verifiable, specific
factual assertion. Indeed, these allegations were the basis of a
lawsuit that would have sussed out whether Appellants committed
fraud (had Six Mile’s first complaint not been dismissed).
See Davis
v. Garrity
, No. 2:13CV349, 2013 WL 5745554, *5 (D. Utah Oct. 23,
2013) (holding that factual allegations about a pending lawsuit that
are specific in nature, and not vague assertions, are verifiable).
In
RainFocus Inc. v. Cvent Inc.
, the court of appeals
reached a similar conclusion about statements that would be
verified in a pending lawsuit.
analyzing specific statements at issue in these proceedings” because “the actual statements at issue” in RainFocus “could not be presented in the opinion.” Higgins nevertheless asserts that her statements are distinguishable from those at issue in RainFocus as they are “entirely contextualized by the civil lawsuit and reflect her opinions regarding what is shown in the lawsuit’s allegations.” These arguments are unpersuasive. First, the status of the statements in RainFocus as sealed and classified as private does not materially undercut that case’s value. The court’s analysis was “somewhat circumscribed” by that limitation because the court referred to the statements generally, id. ¶¶ 3, 25, but the case remains helpful to our analysis of Higgins’s statements. We also do not agree that “Higgins’[s] statements are entirely contextualized by the civil lawsuit and reflect her opinions.” Higgins did not characterize her statements as mere allegations asserted in a lawsuit. Rather, she stated the allegations as facts, all of which could have been verified in Six Mile’s first lawsuit. See id. ¶ 27. Higgins also argues that “[s]he encourages the verification [of her statements] with the other litigation, not her alleged statements.” For instance, in one of her posts, Higgins wrote, “You can look up their affidavits if you’d like their full testimonies.” But Higgins failed to include this language in her March 2022 post. And we note that even if she had, she has not cited any authority stating or suggesting that this supports that her statements are opinions. This instead seems to suggest that her statements are verifiable and would have been verified in Six Mile’s lawsuit had it not been dismissed. In summary, the common usage and the objectively
verifiable factors support the conclusion that at least some of
Higgins’s statements are assertions of fact. We have already
evaluated factors three and four—“the full context of the
statement” and “the broader setting in which the statement
appears”—and concluded that the same statements are capable of
defamatory meaning.
See supra
¶¶ 59–94;
West
,
2. Nielsen
Nielsen’s first statement—that “[t]he Erda sponsors
committed fraud that was well documented and part of
lawsuits”—is also an assertion of fact, and not a constitutionally
protected opinion, when viewed through the
West
lens. The
common usage and meaning of the words “committed fraud” and
“part of lawsuits” support that this statement is an assertion of fact.
Nielsen, like Higgins, makes this statement without including any
cautionary language. He uses an assertive tone, presenting
Appellants’ misdeeds as a settled fact, and he cites the factual basis
for the statement.
See Bauer
,
fraud was ‘well documented’ . . . [is] nothing more than [a]
statement[] of subjective belief—i.e.[,] opinion.” Like the word
“yelled,”
see Spencer
,
common usage or meaning of the qualifier “well documented.” But Nielsen overlooks a critical portion of his first statement, in which he declares that the “Erda sponsors committed fraud”—words that, in their common usage or meaning, could be interpreted as stating actual facts about the individuals involved. See Hustler Mag., Inc. v. Falwell , 485 U.S. 46, 50 (1988); cf. Spencer , 2017 UT App 69, ¶ 16 (concluding that, even though “yelled” could not be objectively verified as true or false, “whether Spencer told Glover to google something [could] be”). In other words, Appellants did not premise their defamation action on the assertion that the fraud is well documented; they centered it on the assertion that they committed fraud. Nielsen, too, argues that his comments are not
defamatory because they do not accuse Appellants of specific criminal conduct. He says he “never uses the words ‘crime’ or ‘criminal’ and . . . refer[s] to the civil claims asserted in the Six Mile lawsuits.” But regardless of whether he “impute[d] criminal conduct to either Appellant personally in any of his statements,” a reasonable reader could perceive him to have declared that Appellants committed “ethically improper conduct.” West , 872 P.2d at 1010. This is especially true when we consider the definition of fraud: “A knowing misrepresentation or knowing concealment of a material fact made to induce another to act to his or her detriment.” Fraud , B LACK ’ S L AW D ICTIONARY (12th ed. 2024). The definition notes, “Fraud is [usually] a tort, but in some cases ([especially] when the conduct is willful) it may be a crime.” Nielsen further argues that his “broader comments that accompany his statements about fraud confirm he was expressing opinions about the Six Mile litigation.” He cites the following as examples: “the courts need to hear this in detail,” “there is a judge who follows the law,” and “[t]here is more . . . which must come to light.” He proclaims that “[t]hese comments about how the Six Mile lawsuits should be litigated, how the proceedings are unfolding, and what steps [he] believe[s] need to be taken are all matters of opinion.” Notably, none of these comments appeared in Nielsen’s first statement, which we have concluded is capable of a defamatory meaning. Nielsen fails to show us how comments made three and four months after his first statement would indicate that the first statement is a constitutionally protected opinion. Application of the second West factor yields the same conclusion. Indeed, whether Appellants engaged in fraud is capable of being objectively verified and may be verified in Six Mile’s pending lawsuits. See RainFocus , 2023 UT App 32, ¶ 27. Nielsen contends that RainFocus is inapplicable because he is not a party to any of the relevant lawsuits. He argues that “the RainFocus court expressly held its decision does not apply when the statement at issue describes allegations made by a third party in a separate legal proceeding.” (Citing id. ¶ 20.) But the paragraph on which Nielsen relies concerned whether the judicial proceeding privilege applied to the statements at issue, not whether the statements were constitutionally protected as opinions. See id. (“But when a party to a lawsuit repeats its own allegations made in the suit, we conclude that the judicial proceeding privilege remains attached to the allegations such that their republishing must abide by the limits of the privilege or fall subject to claims for defamation.”). Nielsen also argues that his statements lack language
indicating they are objectively verifiable, including the phrase “we have evidence.” (Citing id. ¶¶ 3, 28 (holding that “multiple statements,” including “we have evidence,” have a plain meaning and verifiability that are “ clearly factual ” (emphasis added)).) Although Nielsen’s first statement lacked that exact language, it contained other language indicating it is verifiable. For instance, he states that “[t]he Erda sponsors committed fraud which was . . . part of lawsuits .” (Emphasis added.) Nielsen not only described verifiable actions, but he informed readers how such actions would be verified. Contrary to his characterization of his statements, the relevant statement is not merely a “comment[] about how the Six Mile lawsuits should be litigated, how the proceedings are unfolding, and what steps Nielsen believe[s] need to be taken.” Because Nielsen’s statement that the Erda sponsors committed fraud failed to carry “verbal signals indicating opinion,” see id. ¶ 28, it is an assertion of fact. Nielsen additionally contends that his statements’
references to Six Mile’s lawsuits, including one in which he posted
a link to Six Mile’s first complaint, support that they are non-
verifiable expressions of opinion. He claims that by referencing the
lawsuits, a reasonable person would know that his statements are
his “interpretation of the claims and allegations in the Six Mile
complaint,” rather than objectively verifiable statements. In
support of this argument, Nielsen cites a case out of the United
States Court of Appeals for the Ninth Circuit, in which the court
noted that “[w]hen the facts underlying a statement of opinion are
disclosed, readers will understand they are getting the author’s
interpretation of the facts.” (Quoting
Standing Comm. on Discipline
of U.S. Dist. Ct. for the Cent. Dist. of Cal. v. Yagman
,
prove—that his statements are opinions. Indeed, the Ninth Circuit
made this statement to explain “[t]he rationale behind” the rule that
“[a] statement of opinion based on fully disclosed facts can be
punished only if the stated facts are themselves false and
demeaning.”
Yagman
,
C. The District Court Erred When It Dismissed Appellants’ Claims on the Basis of Privilege The district court also concluded that, regardless of
whether Higgins’s and Nielsen’s statements were capable of
defamatory meaning, their statements were privileged. The court
held that Utah’s public-interest, fair-report, and fair-comment
privileges applied as a matter of law and necessitated the dismissal
of Appellants’ defamation claims against Higgins and Nielsen.
Appellants argue that it is inappropriate to decide the
privilege question on a motion to dismiss. We acknowledge that we
have been less than clear in how we have talked about privilege in
the defamation context. At times, we have said things like, to “state
a claim for defamation, [a plaintiff] must show that defendants
published . . . statements . . . not subject to any privilege.”
West
, 872
P.2d at 1007;
see also Wayment
,
employees, the former employees sued Nordstrom for wrongful discharge, breach of contract of employment, intentional infliction of emotional distress, and defamation. Id. at 52. The plaintiffs’ defamation claims were based on statements Nordstrom made in meetings with managers and buyers, in which “the most that can be said [about] or imputed [to the statements] is that Nordstrom [said] . . . that the plaintiffs’ terminations were related to drugs.” Id. at 59. The plaintiffs went to trial on their defamation claims. See id. at 52. Relevant here, “[a]t the close of all evidence, the trial court granted Nordstrom’s motion for a directed verdict as to the plaintiffs’ defamation claims on the ground that the defamatory statements . . . were privileged communications.”
[19] Privileges play an important role in our defamation caselaw.
We have recognized “[a]bsolute privileges,” which “are granted to
those whose position or status requires that they be free from
liability stemming from their actions.”
Price
,
“Whether a publication is conditionally privileged is a question
of law, unless a genuine factual issue exists regarding whether the
scope of the qualified privilege has been transcended or the
defendant acted with malice.”
Wayment
,
Zoumadakis v. Uintah Basin Medical Center, Inc.
, it held that a
plaintiff’s “failure to set forth any allegation in her complaint that
a qualified privilege applied and that the privilege had been abused
because ‘defendant[s] acted with malice or that the publication of
the defamatory material extended beyond those who had a legally
justified reason for receiving it’” was not fatal in the context of a
motion to dismiss. 2005 UT App 325, ¶ 7, 122 P.3d 891 (quoting
Brehany
,
the burden of pleading the inapplicability of a qualified privilege is not initially on the plaintiff as a prerequisite to stating a claim for defamation; instead, the defendant must first raise privilege as an affirmative defense in a responsive pleading in order to shift the burden to the plaintiff to show the inapplicability of a qualified privilege. ¶ 6. The court of appeals acknowledged that we had said that
to state a claim for defamation, a plaintiff must show that the challenged statements are not subject to any privilege. Id. ¶ 6 n.4. But the court of appeals concluded that those statements should not be read as a pleading burden, but as the “the proper allocation of the ultimate burden of proof when the affirmative defense of privilege is raised in a defamation case.” Id. Otherwise, “[i]f the plaintiff fail[ed] to anticipate and rebut any and all possible privilege defenses in her complaint, the defendant simply has to M move to dismiss for failure to state a claim under rule 12(b)(6), without ever shouldering the burden of showing that a privilege applies.” A federal district court, applying Utah law, adopted
Zoumadakis
’s reasoning. In
Jones v. Suntec Concrete, Inc.
, the court
concluded that the defendants “jumped the gun” in seeking
dismissal in their rule 12(b)(6) motion based on a qualified
privilege. No. 2:22-CV-271,
of Torts has taken. The Restatement provides that while defamation plaintiffs have the burden of proving “the abuse of a conditional privilege,” defendants must first “properly raise[]” the issue. R ESTATEMENT (S ECOND ) OF T ORTS § 613(1) (A . L. I NST . 1977); see id. § 613(2) (“In an action for defamation the defendant has the burden of proving, when the issue is properly raised, the presence of the circumstances necessary for the existence of a privilege to publish the defamatory communication.”). [20] Higgins and Nielsen have different reads on Utah law.
Higgins claims that we can distinguish Zoumadakis because Zoumadakis’s allegations did not demonstrate the applicability of the privileges, while Appellants’ allegations did. For support, she cites at least one case in which a court explained that the general rule is that “complaints do not have to anticipate affirmative defenses to survive a motion to dismiss.” United States v. Lewis , 411 F.3d 838, 842 (7th Cir. 2005). But an exception occurs where “the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense.” Id. Yet Higgins does not explain
[20] Utah’s model civil jury instructions are also consistent with this approach. Although the “Elements of a Defamation Claim” instruction lists “the statements were not privileged” as an element the plaintiff must prove to succeed on his claim, it explains that the element “need not be [proven] in a case where either no privilege has been asserted or the court has determined that the privilege is inapplicable.” See M ODEL U TAH J URY I NSTRUCTIONS 2 D CV1602, https://legacy.utcourts.gov/muji/?cat=1&subcat=16.
how Zoumadakis’s allegations failed to demonstrate the
applicability of the qualified privilege at issue, nor does she
propose an administrable way to determine when a plaintiff’s
allegations demonstrate the applicability of a qualified privilege.
In any event, regardless of whether Zoumadakis’s
allegations demonstrated the applicability of an affirmative
defense, the court of appeals held that it was improper for the
district court to dismiss her defamation claim at the motion to
dismiss phase on the grounds that the statements were subject to a
qualified privilege.
See Zoumadakis
, 2005 UT App 325, ¶ 5. And
Higgins does not attempt to explain away that holding.
Higgins makes a similar argument about
Bright v.
Sorensen
,
Bright , “a plaintiff in a defamation case has the ultimate burden of demonstrating that the statements at issue are not privileged ( e.g. to ultimately disprove a claim of privilege).” But our conclusion in Bright did not rest on what the plaintiffs’ ultimate burden was. Importantly, we held that the plaintiffs were not required to include allegations about fraudulent concealment, made in anticipation of an affirmative defense, to survive dismissal. See id. ¶¶ 35, 51. Nielsen relies on the court’s declaration in Lewis that
“where[] . . . the allegations of the complaint itself set forth
everything necessary to satisfy the affirmative defense,” the
plaintiff must plead around privilege.
Vance as support for the argument that a defamation plaintiff must anticipate an affirmative defense and plead around it. 2013 UT App 236, ¶¶ 12–15, 17, 313 P.3d 1149. In that case, the district court granted the defendant’s motion to dismiss the plaintiff’s defamation claim. Id. ¶ 5. The court of appeals affirmed, because the defendant’s statements were subject to the judicial proceeding privilege, an absolute privilege. ¶¶ 13–17. Nielsen also invokes Riddle v. Perry , in which we
affirmed the district court’s grant of the defendant’s motion to
dismiss on the basis that the legislative proceeding privilege
applied to the allegedly defamatory statement.
court did not err when it dismissed the complaint based upon
privileges. The problem with this argument is that the
Vance
and
Perry
parties seemingly did not argue about what a plaintiff must
plead to survive a motion to dismiss asserting privilege. Both of
those cases centered on whether the specific privileges at issue
applied to the allegedly defamatory statements.
See id.
¶ 6
(explaining that one of the issues raised on appeal was “whether
the trial court erred in holding that a statement made by a
voluntary witness before a
legislative committee
[was]
privileged”);
Vance
,
plead around an affirmative defense in the complaint to survive a motion to dismiss comports with our “strong preference for pretrial resolution of legally deficient defamation claims.” (Citing West , 872 P.2d at 1015.) Although we conclude that a defamation plaintiff need not anticipate and preemptively plead against an affirmative defense, we do not hold that questions of privilege are immune from pretrial motion practice. In Moss v. Parr Waddoups Brown Gee & Loveless , we
rejected the plaintiff’s argument that “the district court erred in
even considering the affirmative defense of the
judicial
proceedings privilege in granting judgment on the pleadings.” 2012
UT 42, ¶ 27 n.5,
When a defendant moves to dismiss for failure to state a claim under rule 12(b)(6), the motion is based on the insufficiency of the plaintiff’s complaint standing alone. By contrast, a motion for judgment on the pleadings under rule 12(c) invites consideration of all pleadings—namely, the plaintiff’s complaint and the defendant’s answer—in determining whether dismissal is appropriate. By distinguishing between these procedural postures,
we analyzed the pleading-burden question in a way that we did not in Perry . Building on what we said in Moss , when a defendant moves to dismiss for failure to state a claim under rule 12(b)(6) of the Utah Rules of Civil Procedure, it is improper for a court to dismiss the claim based on an affirmative defense—like a conditional privilege—raised in the motion. But evaluating whether a dismissal is justified based on an affirmative defense remains appropriate on a motion for judgment on the pleadings (where the pleadings contain all the information needed to decide the motion) or a motion for summary judgment (where there is no genuine issue of material fact on the privilege question). For these reasons, the district court erred when it considered more than the sufficiency of Appellants’ complaint and dismissed Appellants’ claims against Higgins and Nielsen on the basis that their statements were privileged. [21]
D. The District Court Erred to the Extent It Held that the Group Defamation Rule Bars Appellants’ Defamation Claims Higgins and Nielsen argue that the group defamation
rule justifies dismissal of the defamation claims asserted against them. They claim that their statements do not explicitly name Appellants and that Appellants’ identities are not ascertainable from the statements. To prevail on a claim for defamation, a plaintiff “must
show that [the] defendants published the statements
concerning
”
the plaintiff.
West
,
defamation with the group defamation rule.” ¶ 53. This rule provides that “[i]f the defamatory matter has no special application and is so general that no individual damages can be presumed, and the class referred to is so numerous that great vexation and oppression might grow out of a multiplicity of suits, no private suit can be maintained.” (cleaned up). Plaintiffs have overcome the group defamation rule
“[w]here the defamation is of a comparatively small group,” including “where he or she was an unnamed member of an election board of four members, . . . a jury of 12,” and “11 public sexual
[21] Because we hold that Appellants need not have anticipated and pleaded against privilege in their complaint to survive the motions to dismiss, we do not reach Appellants’ arguments about whether the specific privileges on which Higgins and Nielsen rely apply.
assault accusers.” David Elder, D EFAMATION : A L AWYER ’ S G UIDE § 1:32 (Oct. 2024 update) (cleaned up) (citing cases).
¶149 Higgins argues that her “statements refer to the Incorporation Sponsors, ECA, and city sponsors.” She contends that “[t]hese groups have numerous members, none of which are directly mentioned by Higgins’s statements.” Some of her statements, moreover, “do not refer to any groups, let alone individual members.” Finally, she claims that Appellants themselves have “downplayed their own involvement in the incorporation efforts,” undermining the conclusion that their identities are ascertainable from her statements. Nielsen similarly contends that none of his statements
identify either Appellant by name. He maintains that while his first statement referenced the “Erda sponsors,” and he concedes that Sorensen is part of that group, he argues that the reference to “Erda sponsors” would not necessarily be understood as a reference to Sorensen—“one of many sponsors and supporters of the Erda incorporation measure.” He also argues that Mathews cannot sustain a defamation claim against him because Mathews cannot even identify a statement in which Nielsen refers to him, either individually or as part of an ascertainable group. Appellants do not dispute that Higgins’s and Nielsen’s
statements fail to identify Appellants by name. They argue instead
that “[g]iven the references to pleadings and affidavits, the context
and broader setting, a reasonable reader understands that
Appellees directed their defamatory attacks at Appellants.”
We addressed similar arguments in
Pratt
,
Pratts by name but generally referred to “the ‘society,’ the ‘organization,’ and ‘the Order.’” ¶ 5. The Nelsons also distributed copies of their complaint at the press conference. See id. ¶ 36. The complaint not only named the Pratts as defendants, but it further named them “in a list with 240 other defendants known as ‘Order Individuals,’ and referred to these ‘Order Individuals’ as ‘Order Members.’” Id. ¶ 56. The Nelsons argued that “under the group defamation
rule, the large size of the groups referenced in their statements,” including in the complaint, barred the Pratts’ defamation claim against them. Id. ¶¶ 56–57. We disagreed. See id. ¶ 57. Because the complaint mentioned the Pratts, we concluded that “even the Nelsons’ other statements might be viewed as referring to the Pratts as well.” Id. We held that “[w]hen statements explicitly refer to individuals by name, regardless of whether the individuals are part of a general group or larger listing of names, a party cannot rely on the group defamation rule as a defense.” Id. We explained that “if a party generally refers to a group of people that happens to include 400 individuals, then the group defamation rule may have application; but to the extent that a party identifies people in that group by their individual names, the group defamation rule no longer applies.” And even if a defamation plaintiff fails to show that he is “directly . . . named,” the statement “may be regarded as actionable” if he can show that, “from the extrinsic facts and circumstances,” it refers to him. ¶ 52 (cleaned up). Turning first to Higgins’s arguments, we find them
unavailing. Accepting Appellants’ factual allegations as true, this is not a case where it “clearly appears that the plaintiff[s] can prove no set of facts in support of [their] claim.” Am. W. Bank Members, L.C. v. State , 2014 UT 49, ¶ 7, 342 P.3d 224 (cleaned up). Rather, Appellants have alleged enough to show that from the extrinsic facts and circumstances, Higgins’s March 2022 post refers to them. See Pratt , 2007 UT 41, ¶ 52. In that post, Higgins referenced “the ECA” and stated that it “defrauded the entire community.” She went on, writing that the ECA “defraud[ed] cattle ranchers.” For the purposes of this inquiry, we can assume that readers understood that Higgins was discussing Six Mile’s first lawsuit. And Appellants, both associated with the ECA, were named as defendants in that lawsuit. See id. ¶ 57. It is true that the group to which Higgins refers in the
relevant statements has “numerous members.” But Higgins overlooks that our law accepts that a cause of action based on statements appearing to apply to a particular class of individuals can “be maintained by any individual of the class who may be able to show the words referred to himself.” See id. ¶ 52 (cleaned up). Appellants have shown that from the extrinsic facts and circumstances—especially because Appellants are named defendants in Six Mile’s first lawsuit—Appellants could be ascertainable from Higgins’s relevant statements. See id. We therefore cannot affirm the court’s grant of Higgins’s motion on this ground. Nielsen’s first statement warrants the same conclusion.
While Nielsen referred to the “Erda sponsors,” Sorensen and Mathews could be ascertainable from the statement. Appellants alleged that Sorensen was a sponsor of the Erda incorporation measure and an ECA board member. They also alleged that Mathews founded the ECA, which “worked actively—but quietly—in assisting sponsors of a ballot measure to incorporate the City of Erda.” While Sorensen was one of several “sponsors,” he can still show “the words referred to himself.” See id. (cleaned up). And although Mathews was not an incorporation “sponsor,” we think that, given his close association to incorporation efforts, he, too, could be ascertainable from “Erda sponsors.” Nielsen maintains that Appellants failed to allege which of the numerous individuals named as defendants in Six Mile’s lawsuits faced allegations of fraud. We take this point; in paragraph 31 of their complaint, Appellants alleged that “Six Mile’s central allegations” in its first lawsuit were that “one or more of the Defendants fraudulently modified the request for [the] feasibility study.” According to Nielsen, whether “one or more of the Defendants” concerns Sorensen and Mathews is unclear. But Nielsen overlooks that further down in the complaint, Appellants alleged that “the lawsuit falsely alleges Kyle and/or Terry Mathews obtained the Bleazards’ signature under false pretenses, and Ryan Sorensen obtain[ed] Judy Warr’s signature under false pretenses.” While we do not know from the complaint how many defendants were named in Six Mile’s lawsuits, we do know that Sorensen and Mathews were. At bottom, Appellants have demonstrated that from the extrinsic facts and circumstances, Sorensen and Mathews could be ascertainable from Nielsen’s first statement, which referred to Six Mile’s litigation. See id. Having concluded that Appellants have alleged facts
supporting that Higgins’s and Nielsen’s statements concern Appellants, we cannot affirm the district court’s dismissal of Appellants’ defamation claims on this ground.
E. The District Court Erred to the Extent It Held that Appellants Failed to Plead that Higgins and Nielsen Made Their Statements with the Requisite Degree of Fault Higgins and Nielsen also urge us to affirm the district court’s dismissal of the defamation claims because Appellants failed to plead that Higgins and Nielsen made their statements with the required degree of fault. The First Amendment places limits on how we apply our
defamation law.
See Phila. Newspapers, Inc. v. Hepps
,
[22] “The determination of a defamation plaintiff’s public figure
status is a question of law . . . .”
Wayment
,
controversy and thereby becomes a public figure for a limited range of issues .” (emphasis added). “[T]he Supreme Court further altered state defamation
law” when it held that, “so long as they do not impose liability
without fault, the States may define for themselves the appropriate
standard of liability for a publisher or broadcaster of defamatory
falsehood injurious to a
private
individual.”
Ferguson v. Williams
& Hunt, Inc.
, 2009 UT 49, ¶ 22, 221 P.3d 205 (emphasis added)
(discussing
Gertz
, 418 U.S. at 347, 349). Where cases involve a
private plaintiff and a matter of public concern, we require
“negligence . . . to establish a claim for defamation.” ¶ 24;
see also
Wayment
,
purpose public figures and that, as a result, they needed to allege that Higgins and Nielsen made their statements with actual malice to sustain their defamation claims. Here, we need not decide whether Appellants are
limited-purpose public figures because they have alleged that
Higgins and Nielsen made their statements with actual malice—
that is, that Higgins and Nielsen made their statements “with
reckless disregard of whether they were false or not.”
See Jensen v.
Sawyers
, 2005 UT 81, ¶ 119, 130 P.3d 325 (cleaned up). A court
should grant dismissal under rule 12(b)(6) of the Utah Rules of Civil
Procedure only “if it is clear that a party is not entitled to relief
under any [set] of facts which could be proved in support of its
claim.”
Am. W. Bank Members
,
which Appellants were named as defendants. And we can infer that, when they made the relevant statements, Appellants knew that the lawsuits had not yet been adjudicated on the merits. Even though they knew Appellants had not yet been found liable, Higgins and Nielsen “repeatedly and publicly accused [Appellants] of criminal behavior, including (most frequently) fraud and forgery.” It follows from this that Higgins and Nielsen had reason to doubt the truth of the statements. See id. Even if they “honestly believed [their statements] to be true,” we consider both the “subjective inquiry as to the defendant’s belief” and the “objective inquiry [regarding] the inherent improbability of or obvious doubt created by the facts” when determining whether reckless disregard has been shown. [23] See id. Nielsen advances two additional arguments about how
Appellants failed to plead reckless disregard, neither of which prevails. He first argues that “Appellants failed to plead any facts showing that [he] had serious doubts about the truth of his statements but published them anyway.” He next contends that “nothing in the Complaint indicates that [his] statements were so inherently improbable that only a reckless individual would have made the statements.” Nielsen’s first argument rests on the idea that “[r]eckless
disregard is a subjective inquiry that ‘can be shown by providing
sufficient evidence to permit the conclusion that the defendant in
fact entertained serious doubts as to the truth of his publication.’”
(Quoting
Davidson v. Baird
, 2019 UT App 8, ¶ 42, 438 P.3d 928.)
Nielsen misunderstands
this precedent. First,
Davidson
acknowledges that reckless disregard is not merely subjective.
See
id.
Moreover, we have said that reckless disregard exists where “the
publisher’s allegations are so inherently improbable that only a
reckless [individual] would have put them in circulation or” that
there is “obvious doubt created by the facts.”
Ferguson
,
[23] Appellants also alleged that “Defendants made the statements
in reckless disregard of their truth or falsity.” This is a legal
conclusion. Although rule 9(c) of the Utah Rules of Civil Procedure
allows plaintiffs to allege “conditions of a person’s mind . . .
generally,” we need not accept a legal conclusion, rather than a
pleaded fact, as true on a motion to dismiss.
See Osguthorpe v. Wolf
Mountain Resorts, L.C.
,
true, we look at both the subjective and objective inquiries. See supra ¶ 167. And Nielsen’s second argument assumes that reckless
disregard can be shown only if the publisher’s allegations are “so
inherently improbable that only a reckless individual would have
put them in circulation.”
See Davidson
,
that Appellants are limited-purpose public figures, Appellants have pleaded that Higgins and Nielsen made their statements with actual malice. To the extent the district court accepted Higgins’s and Nielsen’s argument that Appellants are public figures and failed to plead the degree of fault necessary to sustain their claims, it erred. [24]
II. T HE D ISTRICT C OURT E RRED W HEN I T C ONCLUDED THAT U TAH ’ S
A NTI –SLAPP A CT S HIELDS OWN FROM L IABILITY We last consider whether the district court correctly
concluded that Utah’s Anti-SLAPP Act (the Act) bars Appellants’
claims against McCown. Like many states, Utah enacted an Anti-
SLAPP statute to protect individuals from “SLAPP” lawsuits, also
known as “strategic lawsuits against public participation.”
See
Anderson Dev. Co. v. Tobias
,
[24] The district court concluded that because Higgins’s and
Nielsen’s statements were not capable of defamatory meaning and
were privileged, Appellants failed to state claims for false light
against those Appellees. “A false light claim is closely allied with
an action for defamation, and the same considerations apply to
each.”
Jacob
,
process of government and is done primarily to harass the defendant.” U TAH ODE § 78B-6-1403(1) (2023). [25] A defendant who believes the suit was filed with the primary purpose of harassing the defendant can file “an answer supported by an affidavit of the defendant detailing his belief that the action [was] designed to prevent, interfere with, or chill public participation in the process of government[] and specifying in detail the conduct asserted to be the participation in the process of government” that gave rise to the complaint. § 78B-6-1403(1)(a). He may also file a motion for judgment on the pleadings, along with a supporting affidavit. See id. § 78B-6-1403(1)(b), (2). The district court granted McCown’s motion for
judgment on the pleadings, which, as noted, he premised on the Act. The court concluded that McCown was participating in a process of government and that the purpose of Appellants’ complaint was to prevent or chill public participation in the process
[25] Before the district court ruled on McCown’s motion, the Legislature repealed and replaced the Act with the Uniform Public Expression Protection Act. See Public Expression Protection Act, S.B. 18, 2023 Leg., Gen. Sess. (Utah 2023). We, like the district court, apply the Act that was in effect in 2023.
McCown points to the Act’s replacement and contends that “the Court should deny Plaintiffs’ appeal because it will not create relevant precedent.” He asserts that “the appeal . . . does not present a question regarding the proper interpretation of, or ambiguity in, a current constitutional provision, statute, or rule that is likely to affect future cases.” He also argues that “this Court’s decision [will not] have any significant precedential value. And Plaintiffs’ appeal does not present legal questions of first impression in Utah . . . likely to recur in future cases.”
These arguments miss the mark. The considerations McCown raises are those we weigh when we decide whether to grant a petition for a writ of certiorari. See U TAH R. A PP . P. 46(a) (directing that “[r]eview by a writ of certiorari is not a matter of right, but of judicial discretion, and will be granted only for special and important reasons,” including those on which McCown relies). Once we have retained an appeal over which we have original jurisdiction, like here, we are not at liberty to dodge issues that are preserved and briefed even when we can predict that our opinion will have limited precedential value.
of government. Appellants contend that the court erred when it reached both conclusions.
¶175 The Act defined “process of government” as “the mechanisms and procedures by which the legislative and executive branches of government make decisions, and the activities leading up to the decisions, including the exercise by a citizen of the right to influence those decisions under the First Amendment to the U.S. Constitution.” Id. § 78B-6-1402(4). The Act provided that “government” “includes a branch, department, agency, instrumentality, official, employee, agent, or other person acting under color of law of the United States, a state, or subdivision of a state or other public authority.” Id. § 78B-6-1402(2). If a defendant filed a motion for judgment on the
pleadings, the trial court was required to “hear and determine the motion as expeditiously as possible with the moving party providing by clear and convincing evidence that the primary reason for the filing of the complaint was to interfere with the” defendant’s “participation in the process of government.” Id. § 78B- 6-1404(1)(b), (2). Appellants first contend that the district court erred
because McCown’s statements were not made while he was
participating in the “process of government” as the Act defines that
phrase. They rely on two cases for support.
See Anderson Dev. Co.
,
summary
judgment on a defendant’s Anti-SLAPP Act
counterclaim based on an early version of the Act.
See
Act protected certain political speech involving elections. See Jacob , 2009 UT 37, ¶¶ 7, 9 (analyzing U TAH ODE §§ 78B-6- 1402(5), -1403(1) (2008)). American Fork City had adopted ordinances that “stirred debate over whether they prohibited certain city employees from holding a seat on the city council.” C ¶ 2. A week before city council elections, William Jacob prepared and paid for a political advertisement flyer in a local weekly newspaper that said, notwithstanding the city attorney’s opinion and the city council’s blessing of their candidacy, the ordinances prohibited two individuals from holding office as city council members. Id. ¶ 3. The ad, when published, did not contain Jacob’s name. See id. The newspaper’s editor, Brett Bezzant, then paid for and
published an “Urgent Election Notice” that contained an apology to the two individuals named in Jacob’s ad, stating that the ordinances did not prohibit the men from running for city council and disclosing Jacob’s identity as the author of the ad. Id. ¶ 4. Jacob sued Bezzant, claiming that several Election Notice excerpts contained defamatory language. See id. In his answer and counterclaim, Bezzant asserted that the Act protected him. Id. ¶ 5. The district court ruled that Bezzant’s Election Notice was participation in the process of government because it was political speech regarding election issues. Id. ¶ 10. We disagreed. We first noted that the Act’s plain
language was not so broad that it considered all political speech about election issues to be “participation in the process of government.” Id. We emphasized that the Act limited protection “of citizen participation in the process of government to ‘the exercise by a citizen of the right to influence’ decisions of the legislature or executive branch of government.” Id. (quoting U TAH ODE § 78B-6-1402(5) (2008)). We further held that an “election . . . is not an exercise of the right to influence legislative and executive decision making as required by the Anti-SLAPP Act.” Id. ¶ 15 (distinguishing “citizen decision making” in the process of government and executive and legislative decision making). As evident from “the definition of ‘government’ in the Act,” we determined that the Act did “not protect speech concerning citizen decision making.” Id. We also highlighted two “important factual differences
between [that] case and Anderson .” Id. ¶ 12. “First, in Anderson , the city council was clearly required to make a decision. It had to decide whether or not to approve [the plaintiff’s] zoning application, but the American Fork city council had already made the decision that” the individuals named in Jacob’s ad were qualified candidates. “Second, in Anderson , the citizens clearly intended to influence the city council’s decision making.” We examined “both the content of the speech and the context in which it was made” to determine whether Bezzant’s speech was an exercise of the right to influence legislative or executive branch decision making. Id. ¶ 16. We held that it was not. See id. ¶ 17. Although “part of a public debate on the eligibility of candidates for office,” Bezzant’s speech did not expressly request that American Fork’s executive or legislative branch take any action. Id. Nor could “it be read to impliedly request that government decision-makers act.” We also found it significant that the record showed that the decisionmakers were not considering whether to change their policy that the relevant individuals were eligible to run and that at least one decisionmaker was not even aware of the speech. See id. While Bezzant’s speech “provided information useful to voters in choosing whom to vote for,” it was not “an exercise of his right to influence a decision by a legislative or executive branch of government[] . . . and was not protected by the Anti-SLAPP Act.” Here, Appellants base their defamation claim against
McCown on numerous statements he made about Erda’s incorporation and Six Mile’s lawsuits. McCown’s statements can be grouped into three categories: (1) those that oppose Appellants’ referenda related to Tooele County land-use decisions; (2) those that oppose Appellants’ incorporation efforts by informing Tooele County citizens and the Lieutenant Governor’s Office of the fraudulent acts and misrepresentations allegedly committed by Appellants, which should have prevented the incorporation effort from appearing on the 2020 ballot; and (3) those that seek to educate and mobilize Erda residents to disincorporate through the initiative process. Notably, none of McCown’s statements about Erda’s
incorporation—categories one and two—were made to a legislative
or executive branch of government that was “clearly required to
make a decision” about Erda’s incorporation.
See id.
¶ 12;
see
U TAH
ODE § 78B-6-1402(1), (2), (4). According to the complaint, the
government branch responsible for overseeing the process of
incorporating municipalities—the executive—had already fulfilled
its statutory duties by the time McCown made his statements.
McCown argues that almost all his actions or statements
were intended to stop the executive and legislative branch decision
makers from incorporating Erda. He analogizes this case to
Anderson
,
third category (about disincorporating Erda) qualify as participation in the process of government “because the legislative authority in the State of Utah resides in two separate, but equal bodies—the legislature, i.e., elected representatives and senators, and the voters when deciding direct legislation through referenda and initiates [sic].” McCown’s argument ignores the Act’s plain language.
The 2023 version of the Act defined “process of government” as
“the mechanisms and procedures by which the legislative and
executive
branches
of government make decisions, and the activities
leading up to the decisions, including the exercise by a citizen of
the right to influence those decisions under the First Amendment
to the U.S. Constitution.” U TAH ODE § 78B-6-1402(4) (emphasis
added). While under “our state constitution, the people’s
legislative
power
is equal to the Legislature’s,”
League of Women
Voters of Utah v. Utah State Legislature
,
Act defines “government” broadly. True enough.
See
U TAH ODE § 78B-6-1402(2) (“‘Government’ includes a branch, department,
agency, instrumentality, official, employee, agent, or other person
acting under color of law of the United States, a state, or
subdivision of a state or other public authority.”). But none of
McCown’s statements “clearly intended to influence” any of the
actors the Legislature included in the Act’s broad definition of
“[g]overnment.”
See Jacob
,
require every single statement [he] has made in the process of government [to] influence executive and legislator decision making” for it to be protected. For support, he cites to Jacob , in which we stated that “[u]ltimately, the plain language of the definition of the process of government does not require that in all cases a party intended his actions to influence executive and legislative decision making.” (Quoting id. ¶ 13.) But McCown takes this statement out of context. Indeed, we did not say that citizen actions besides “the right to influence decision making” were protected. Rather, we clarified that “the exercise by a citizen of the right to influence” legislative and executive branch decision making was protected under the Act. Id. (cleaned up). We explained that “[e]xercising the right to influence decision making may involve activities in addition to an intent to influence decision making .” (emphasis added). Here, regardless of whether McCown’s statements amount to “an intent to influence decision making” or not, id. , McCown has not demonstrated that any of his statements were made to influence legislative and executive branch decision making, because no legislative or executive decisions were pending. Finally, McCown requests that we apply the factors that
we set forth in Jacob to determine whether his speech was an “exercise of the right to influence legislative or executive decision making.” (Quoting id. ¶ 16.) But, again, because McCown has not demonstrated that he engaged in activities to “influence legislative or executive [branch] decision making ,” id. (emphasis added), we decline his invitation. McCown’s statements do not qualify for protection
under the Act’s definition of “process of government.” See U TAH C C ODE § 78B-6-1404(1)(b), (2). It follows that the district court erred when it granted McCown’s motion. [26]
CONCLUSION The district court erred when it concluded, first, that
Higgins’s and Nielsen’s statements were not capable of defamatory meaning and, second, that various privileges provided an independent basis on which to dismiss Appellants’ claims. Appellants pleaded that Higgins and Nielsen each made at least one statement that is capable of a defamatory meaning and is not a constitutionally protected opinion. The district court also erred when it resolved the question of whether the statements were subject to a privilege on a motion to dismiss. The district court similarly erred when it dismissed Appellants’ false light claims against Higgins and Nielsen on these grounds. Finally, the district court erred when it granted McCown’s motion for judgment on the pleadings premised on the 2023 version of Utah’s Anti-SLAPP Act. Under the Act’s plain language, and our precedent interpreting the Act, McCown did not make the challenged statements while participating in the process of government. We reverse and remand.
[26] For the Act to apply, the primary purpose of the lawsuit must be to harass the defendant. See U TAH ODE § 78B-6-1403(1). That is, to “prevent, interfere with, or chill [defendant’s] public participation in the process of government.” See id. § 78B-6- 1403(1)(a). Appellants argue that the district court erred because they sufficiently alleged that the primary purpose of their lawsuit is to receive compensation for the harm McCown’s statements have caused them. Because we reverse based upon Appellants’ process of government argument, we need not reach the parties’ arguments about the lawsuit’s primary purpose.