*1 4] Alaska, Appellant, STATE
v. CARPENTER, One,
Karen Westwood Leykis, Appellees.
and Tom Carpenter, Appellant,
Karen
v. and Tom
Westwood One
Leykis, Appellees.
Westwood One and Tom
Leykis, Appellants, Carpenter, Appellee.
Karen S-10700, S-10709,
Nos. S-10739.
Supreme Court of Alaska.
Oct.
The station forwarded her letter to Tom Leykis, making who read it on the air while derogatory sexually explicit and remarks making about and other comments allegedly inflamed listeners and encour- aged Carpenter. them to contact or confront producer, sued and his One, defamation, Westwood intentional distress, negligent infliction of emotional privacy. and invasion of She also sued for evidence, spoliation claiming Westwood Leykis intentionally destroyed One and tape part superior of the show. The court granted summary judgment against Carpen- defamation, negligent ter on her infliction of distress, light privacy emotional and false claims, spoliation, but submitted her inten- (IED), tional infliction of emotional distress upon and "intrusion seclusion" claims to a jury. found for and West- IIED wood One on the and intrusion claims Carpenter against and found for Westwood spoliation One on the claim and awarded her compensatory punitive damages against parties appeal rulings Westwood One. The defamation, concerning privacy, challenges IIED claims. One Westwood spoliation damage verdict and the awards. disputes constitutionality Mogel, Attorney T. Jason Assistant Gener- allocating part punitive damages Renkes, al, Anchorage, Gregg D. Attor- Alaska, award to the State of and she and the General, Juneau, ney for the State of Alaska. questions about that alloca- state raise how O'Bannon, Ray Brown R. and Linda M. tion should have been calculated. We re- *7 P.C., Findley, Anchorage, Dillon & and Jack part in verse and remand because we con- McGee, McGee, B. Law Office of Jack B. erroneously clude Instruction No. Juneau, Carpenter. for Karen jury's Carpen- consideration limited the Longenbaugh Leslie and L. Merrill Low- exception ter's IIED claim. With a minor den, Simpson, Tillinghast, & Lon- Sorensen costs, relating to we otherwise affirm the Juneau, genbaugh, One and Westwood superior rulings. court's Leykis. Tom II. AND PROCEEDINGS FACTS BRYNER, Justice, Before: Chief MATTHEWS, EASTAUGH, FABE, and Leykis personality"; a in Tom "radio CARPENETI, Justices. Show, Leykis a 1998 he hosted the Tom four- topics
hour radio talk show. Sex-related OPINION program. were a common feature of the One, produced Inc. and distribut- Westwood EASTAUGH, Justice. program ed the as a live radio broad- show I. INTRODUCTION days na- cast five a week radio stations AM radio station KJNO Carpenter Juneau resident Karen wrote a tionwide. Juneau weekdays complaining the show from two to six letter to a Juneau radio station broadcast Show, Leykis a national radio about the Tom and p.m. in the Juneau area between June 8 July locally by talk show broadcast station. resident, prunes first "some small band of old and old blue- Carpenter,
Karen a Juneau hairs, July Carpenter heard the show on nut cases and all these cretins." He go, keep eye at trial she was concerned testified said: we an on our web "[Alfter content, expressed con people about its and going I'm to find out who these site. City Borough as cerns to a and Juneau show], put cancelled the and we'll it [who are sembly July 21 member on and also made or up complained on the site." He "I hate web inquiries gov tried to make various to other those-those old biddies who sit out there asking decency officials about laws. ernment nothing than to and have better to do write testified that she contacted "three "Maybe in to radio stations." He also said: July 22 or four" KJNO advertisers on and gotten if this woman had laid in the last 50 they them if knew their ads. were asked years, who writes into the station and started Leykis being during run the Tom Show and waves, making maybe all these she wouldn't they advertising wanted their dol whether kidding." I'm complaining be so much. air, reading Carpenter's support After letter on the the content of the show. lars stating a letter then faxed KJNO Leykis commented: majority" that she found "the of the show signed, the And it's woman who wrote "very thought and that she offensive" signed: Carpenter. letter-it's Karen might unsuitable to air when children Karen, something I Well have little listening. Her letter informed KJNO that you right [buzzing could use about now. she had contacted and would continue to sound intended to simulate the sound of contact Juneau radio advertisers ads whose vibrator] Leykis during ran the Tom Show and that this, on, you prune. get Sit on old Come everything power "do in [her] she would right top close to the radio. Get have the show taken off the air as soon as jerk. speaker, baby. You You moron. letter, possible." placed The station your You and little band of nut out cases number, displayed Carpenter's which fax in there, trying going to decide what's to be "public its file." Someone at KINO faxed a Juneau, know, on the radio Alaska. You copy Leykis of the letter to the Tom Show maybe you ought go get out and laid note, California with handwritten "Have awhile, [buzzing once in huh? sound] fun." testified that she was un your nipples getting You eretin. Are hard that, required by regula aware federal yet, baby? power. Feel You can't tions, placed in the letter would be the sta Oh, Juneau, you stop stop this show. can tion's file.1 you stop Alaska. But can't me.... time, Rhyner, Around Steve KJNO's your stupid-your stupid You and church manager, station decided to take the Tom your stupid religion, you your major Show off the air because adver- stupid god damned bunch of marauders. complained program tisers had about the You morons. Jerks. Rhyner objected partic- to the content of one enjoying sporting right I'm this. I'm wood July day ular show. 1998 was the last now, just thinking it. hoo.... about Woo the Tom was broadcast Show Ju- *8 neau. broadcast, Oh,
During July Leykis the Carpenter. Carpenter made Karen Karen No, several remarks about KJNO's cancellation wanted our show off the air. not that Karen, it, Carpenter's Carpenter. of the show and letter. He de- Karen But sit on objected baby. [buzzing seribed those who to the show sound] as (2004) Regulations 1. 47 Code of Federal 73.1202 letter not be made or when the licensee provides that that it excluded feels should be from the inspection file because of the nature of its suggestions All written comments and received public by from the content, such as a let- licensees of commercial obscene defamatory AM, FM, TV and A Class TV broadcast stations ter. Carpenter public's regarding operation not contended the has that of their station shall be file, right public inspection to comment about maintained in the local broadcast licensees is requested unless the letter writer has that the including claims, relevant to her her IIED claim. this, Oh, See, you lawyers. Attorney yeah. you got if more of Reges Robert testified writing complaint requesting letters to the that he sent an email to KJNO a be wouldn't tape July 24 "soon after" the broadcast. An station. employee affidavit from KJNO Mc- Justin show, attempted in the a Juneau caller Later Reges identify that Donald indicates did not Carpenter's telephone home and to broadcast lawyer, as a and did not himself admit the numbers, in fax which were listed the local request. purpose true of his directory Carpenter," "KL. telephone under expressed hope people that would and 24, 1998, On December five months after telephone faxes." The number "send broadcast, attorney, another time, Around this Douglas, partially bleeped out. a Jim wrote letter to KJNO and was testimony trial of one of according to the One, requesting tape a and mak- Westwood friends, Leykis encouraged Carpenter's also ing legal might it clear that action forth- Carpenter's telephone his listeners to make coming. given No address was West- "ring program the hook." Later a off One, just company wood the name of the and praise Juneau fan called show. street address in California. its Westwood "Well, Leykis responded: we hate to lose employees they testified that had One not tuned, stay I you, say, but like 'cause we're letter, producer seen the but the show's testi- going get back on in Juneau.... And general compa- fied to a recollection that the going make that woman's life a we're ny's legal department requested tape had According testimony living hell." to the trial upon receiving a request and that such he friends, "living this another copy tape have made a of the would and sent repeatedly hell" comment was "used legal department. it to the He recalled throughout the broadcast." copy a "was found." He also that he testified part of the Carpenter heard the first intentionally have altered or "would de- parts broadcast and learned about other show, stroyed tape thle] he did Douglas the show from friends who had heard it. She not do so." testified that he never One, response later that she felt humiliated and received a from Westwood testified him sexually She testified that she re- that KJNO told the station had violated. forwarded the letter to Westwood One. The telephone message ceived a at her home that only copy July 24 show ever found was repeated part of what had said about "threatening" her. She also received several hours; two cassette the first KJNO's provided tape McDonald this and re- faxes at her home. was later Justin diagnosed post-traumatic syn- called in an affidavit that One had stress Westwood "possibly anxiety tape drome and an disorder. sent him the before the end of kept person- He with his 1998." cassette The Tom Show was recorded in the forgot Rhyn- it until tapes al about Steve videotapes aired. studio on VHS show requested it in 2001. There no evi- er tapes were stored in a drawer in the These recording dence that a of the second half of studio; full, as soon as the drawer was the four-hour show ever surfaced. recycled, erasing recordings. tapes were complaint long superior estimates of how filed a court There were various One, KJNO, Leykis, stayed against drawer. A Tom Westwood tapes Westwood Communications, Inc., they stayed there Alaska Broadcast One executive estimated months, alleged producer Rhyner. the show's She four to six while Steve "judging by the size of the testified July comments about her on his drawer, defamatory, negligent tapes] go eight broadcast were caused [the back six and intentional infliction of emotional dis- months, approximately year." *9 tress, light. in placed and her a false She Carpenter wrote in an affidavit that she alleged Leykis and One also Westwood July requested copy a the "believe[d]" she of spoliated evidence. tape from Westwood One and never Communications, West- response, a and at trial she Alaska Broadcast received testified One, Leykis summary judg- certainty having requested copy. wood and filed Carpenter's all of claims on requests through made several her ment motions on She also 09.17.020(J) pro- ruled that AS was constitu Leykis's comments were court grounds that objected Carpenter also to the form tional. and that by the First Amendment tected defendants; public figure on the judgment proposed the Carpenter "a limited argued that the court should deduct from she obscenity in the mass media." Car- issue of punitive damage contingent award the the summary partial penter filed a motion for costs) attor (including fee she her owed judgment of intentional inflic- on her claims neys the court awarded one-half of the before (IIED), negligent tion of emotional distress The of Alaska remainder to the state. State distress, invasion of infliction of emotional puni protect its interest in the intervened way privacy by light publicity of false and damages The trial court ruled tive award. seclusion, upon spoliation and intrusion contingent that it would deduct the fee an The trial court issued order evidence. punitive damages award before distribut the denying part in the granting part in and ing one-half of the balance of the award to summary judg- parties' eross-motions trial court issued a final the state. The Carpenter's claims of ment. It dismissed September judgment on June 2002. On defamation, negligent infliction of emotional 20, 2002, Carpenter's it denied motion to distress, privacy. light and false invasion of fifty percent deduct of her costs from the grant summary judg- The court declined to portion punitive damages state's ment to either side on claims of award. IIED, seclusion, upon and inten- intrusion One, Leykis, Carpenter and all Westwood spoliation tional of evidence. attorney's moved for fees. The trial court jury claims. A trial was held on those par- denied all fees motions and ordered the Leykis and One moved for di- Westwood ties to bear their own fees and costs. rected at the close of evidence and verdict appeals In Case No. S-10709 trial court took their motion under ad- summary judgment grant the trial court's jury found that visement. The Westwood against light her on her defamation and false engaged spoliation in One had intentional appeals jury claims. She also two instruc- $5,042 evidence and awarded tions, evidentiary rulings, ruling two on $150,000 compensatory damages puni- constitutionality 09.17.020(J), of AS damages. tive also returned ver- the denial of her motion to deduct costs from on Car- dict for and Westwood One punitive damages the state's share of the upon of IIED intrusion penter's claims award. spoliation seclusion and for on her ap- No. Case S-10789 Westwood One claim, spoliation claim. As to the Westwood peals the denial of its JNOV motion on the One's directed verdict motion was converted claim, spoliation appeals and also the consti- judgment notwithstanding to a motion for tutionality punitive and amount of the dam- The trial court ruled that the direct- verdict. award; ages Leykis ap- One and Westwood inva- ed verdiet motions were moot as to the peal prevailing of their motion for denial claims; privacy sion of and IIED it denied attorney's party fees and costs. spoliation motion as to the claim. JNOV appeals In Case No. S-10700 the state Carpenter moved after trial for an order pro Carpenter's attorney's rata deduction of 09.17.010(b) 09.17.020(J) declaring AS and AS contingency fee from state's share of the 09.17.010(b) unconstitutional. Alaska Statute punitive damages award. imposes damages a cap non-economic on personal injury wrongful death awards IH. DISCUSSION jury's cases. Because award did not Superior A. The Did Err in Court Not damages, include non-economic the trial Summary Granting Judgment portion court dismissed as moot the of Car Against Carpenter Her Defama- 09.17.010(b). penter's addressing motion AS tion Claim. 09.17.020(J) requires payment Alaska Statute fifty percent plaintiff's punitive appeals of a dam superior ages The trial award to the State of Alaska.2 summary judgment Leyk- grant court's 09.17.020(G). 2. AS
51
pure expres
The common law rule that a
One on
defamation
is and Westwood
grants of
opinion may
review
sum
clai m.3 We
sion of
serve as the basis for a
action
defamation
was rendered unconstitu
novo,4 considering
mary judgment de
Supreme
tional
recent United States
light
presented in a
most favorable to
facts
Supreme
Court decisions. The
Court has
any
whether
non-movant
to determine
that the
held
First Amendment bars defama
fact exist and
genuine issues of material
allegedly defamatory
if the
tion actions
state
judgment
the movant is entitled to
whether
pure expressions
opinion,
ments are
of
not
apply
indepen
our
as a matter of law.5 We
implied or stated assertions of
fact.12
false
judgment
to constitutional
law issues.6
dent
recognized
The Court
freedom to
"[the
speak
only
aspect
one's mind is not
an
of
of a defamation claim
The elements
liberty-and
good
individual
thus a
unto it
(1)
statement;
defamatory
are:
a false and
also is
self-but
essential
the common
(2) unprivileged publication
party;
to a third
quest
vitality
society
for truth and the
aas
(3)
amounting
negligence;
fault
at least
13
whole."
(4)
actionability
per
special
either
se
"
damages.7
defamatory
A
statement
'tends
superior
granted summary judg-
The
court
reputation
to harm the
of another so as to
against Carpenter
ment
on her defamation
claim,
lower
in the estimation of the communi
reasoning
Leykis's
[her]
statements
ty
associating
persons
opinionated
or deter third
"about Ms.
...
[were]
8
protected by
dealing
expression
opin
An
insults"
the First Amendment.
with [her].'"
defamatory
expression
if the
ion is
contains
held
court
statements were
value,
"hyperbole,
only
used
for shock
implied
an
of false fact and
assertion
is suffi
any
imply
not state or
factual basis."
d[id]
ciently derogatory as to
harm to the
cause
agree.
We
subject's
reputation.9
necessary
It
is not
actually
harm
the communication
cause
Living
Fellowship,
In Sands v.
Word
we
reputation;
to another's
its character de
explained:
ascertain whether a state
"[tlo
pends upon
general tendency
its
do so.10
factual,
type
ment is
courts consider 'the
"If the context demonstrates
to the audience
used,
language
meaning
of the statement
speaker
purporting
context,
state or
whether the statement
is verifia
facts,
actual,
ble,
imply
known
cannot
and the broader social
cireumstances
14Many
11
which the statement was made.'"
be the
for a defamation claim."
basis
(Second)
§
3. We
and Westwood
10. See Restatement
or Torts
d
refer
Tom
One
559 cmt.
collectively
"Leykis"
requires
(1977).
unless context
otherwise. On issues that Westwood One alone
appeals,
we refer to it
name.
955,
Living
Fellowship,
v.
Word
Sands
34 P.3d
11.
2001).
(Alaska
960
Treacy Municipality
Anchorage,
4.
v.
91 P.3d
252,
(Alaska 2004).
260
eg.,
U.S. at
See,
Milkovich,
19,
12.
497
110 S.Ct.
689,
(Alaska
Griffin,
5. Botelho v.
25 P.3d
692
(rejecting
exemption
2695
wholesale defamation
2001).
opinion,
holding
of all statements in form
but
that "statement on matters of
concern
Legislative
v. Knowles,
Alaska
Council
21 P.3d
provable
must be
as false before there can be
(Alaska 2001).
367, 370
law"");
under
state defamation
see also
liability
Sands,
Inc.,
Leykis's remarks about
cireumstances,
factually
ited
the Federal Communica-
that were not
verifiable.
insults
may constitutionally regu-
constitute
those statements
could
tions Commission
Even
assertions,
may
ageney
prohibit
such as those
The
not
implied factual
late it.
habits,
however;
entirely,
may only
it
chan-
Carpenter's
speech
sexual
were
about
speech
No lis
is
"factual" under
the cireumstances.
nel the communication. Thus
Leykis's
only
subject
remarks
it
to the
unprotected
tener would understand
insofar as
time,
imply ac
restric-
Carpenter's
agency's
place,
habits to
and manner
about
sexual
Carpenter.
inapplicable
about
Sex-related
The decision is therefore
tual facts
tions.
jokes
a common feature of the show.
defamation claim.
were
Leykis's
implied
if
remarks
that Car
Even
arguments
Carpenter's other two
sexually
in fact
frustrated and
penter was
statements,
Leykis's
of
also fail.
however
deprived, no reasonable listener would be
fensive,
satisfy
three-pronged test
do not
purporting to reveal
lieve that
was
obscenity
out in Miller v.
set
California.19
actual,
Carpenter.15
facts
known
about
Likewise, they do not fall within the classic
Leykis's
were offensive to
While
statements
"fighting
category
unprotected
words"
any
person, they were not defamator
rational
"fighting
exception
words"
is
speech.
y.16
"by
very
limited to words that
their
utter
Carpenter argues that the dis-
appeal,
On
...
tend to incite an immediate breach
ance
opinion
inappo-
between fact and
tinction
statements,
Leykis's
ut
peace."20
of the
site
statements
fell within
because
radio,
unlikely
to achieve
tered over
were
speech
protected
that are not
categories of
peace." They
"an immediate
breach
by
Amendment.
offers three
the First
She
encouraged
have
listeners
to retaliate
grounds
speech
on which to hold that the
Carpenter,
by telephon
against
presumably
(1)
speech
unprotected:
it was indecent
An
ing
faxing
her at home.
exhortation
it;
likely
when children would
hear
broadcast
Carpen
for action of that sort is relevant
(8)
(2)
obscene;
it was
it constituted
IIED claim.
Part
But
ter's
See
IIIC.
his
fighting words.
words are insufficient
to be the basis for a
theory
claim
on a
defamation
based
argument
For her first
she relies on
"fighting
uttered
words."
Supreme
decision
the United States
Court's
v.
Foundation.17 That deci
FCC Pacifica
Superior
Err in
B. The
Court Did Not
claim, however,
support
sion does not
as
Granting
Summary
Judgment
only
government
decided whether the
has
Against Carpenter
on Her False
power
regulate
speech
indecent
that is
Light
Privacy
Invasion of
Claim.
broadcast
radio
times when children
Carpenter argues
supe
likely to overhear it.18
held that
are
Pacifica
granting summary judg
is not entitled to absolute
rior court erred in
indecent
prongs
three
19. The
the Miller test are:
Grant,
128,
15. See Wilson v.
N.J.Super.
(App.Div.1996) (holding
A.2d 1009
radio broad-
(a)
average person, applying
whether 'the
con-
"stalker,"
description
plaintiff
as
caster's
community
temporary
standards' would find
weasel,"
swine,"
"a
"a
"some little
vicious
sick
work,
whole, appeals
that the
taken as a
to the
cookie,"
"sick,
good, pot smoking,
no
wife
interest;
(b)
prurient
depicts
whether the work
beating
defamatory).
skunk" was not
describes,
in a
offensive
sexu-
way,
patently
eg.,
See,
L.F.P., Inc.,
Leidholdt v.
to instruct on constitutional hostile reaction under cireumstances where protections. present danger a clear and of immediate protected speech. violence exists is not propriety jury of instruc generally questions tions raises of law that (2) private of factual informa- Publication knowledge tion about an individualwith or subject independent judgment are to the Jury standard of review.29 instructions to disregard in reckless that disclosure of the timely objections highly factual information would be offen- which were made are there person ordinary to a of Special fore reviewed de novo.30 verdict sive sensibilities is protected speech. "private" not A fact is if subject forms are to the same standard of (2) is, public, it is not known to the not jury review as other instructions.31 Errors legally record and not information jury grounds instructions are not for re media; available to the or the and prejudicial.32 versal unless the errors are An (b) that, private fact is of a kind if prejudicial if erroneous instruction is it can publicized, highly would be offensive to a may be said that the verdict been dif have (c) given.33 person; private reasonable fact ferent had the instruction not been and is, newsworthy, legitimate not
is
concern or' interest
to the
or an
jury instructions,
special
2. The
in-
appreciable percentage
public.
terrogatory,
special
verdict
explained
Instruction No. 18
the elements
form
Carpenter's
IIED claim:
requires
claim of
This
error
us to consider
Carpenter
Karen
claims that Tom
17,
the effect of Instruction No.
Instruction
employees
or Westwood One or its
18,
1,
Special Interrogatory
parts
No.
agents intentionally inflicted emotional dis-
special
verdiet form.
on
tress
virtue of
radio broadcast
24,
July
1998.
jury
Instruction No. 17 told the
it could
liability
as a
"consider"
basis
"words
Carpenter
For Karen
to recover for this
spoken
Carpenter
to or
unless the
about"
claim of intentional
infliction of emotional
speech
unprotected
distress, you
was
for either of two
must decide that
it is more
likely
Leyk-
reasons.
It stated:
true than not true that Tom
27. He cites
v. State,
533,
McLennan,
Inc.,
936 P.2d
541
31. Coulson v. Marsh &
973 P.2d
Turney
(Alaska 1997),
1142,
City Anchorage,
(Alaska 1999) (citations
Marks v.
500
n. 21
omit-
1150
644,
(Alaska 1972),
P.2d
and Anniskette v.
ted).
(Alaska 1971),
State,
1012,
489 P.2d
for the
proposition
speech may
punished only
"that
Id.
in the most limited circumstances."
State, Dep't
Transp.
33. Beck v.
& Pub. Facili
Magazine,
Falwell,
Hustler
Inc. v.
485 U.S.
(Alaska 1992);
ties,
We assume that whether
purpose public figure
figures," regardless
limited
would be im
speaker's
of whether the
claim,
portant
will, hatred,
IIED
if
to her
claim that
like
ill
motivation was
or mere desire
Heightened
to inflict emotional distress.43
claim,
her defamation
turned
truth
on the
or
falsity
Leykis's
Carpenter.
protection
words about
First Amendment
does not extend
falsity
If
necessary
of those words were a
to IIED elaims based on
that is not
claim,
element of her IIED
public figure
whether she was
about a
about matter
public
distinguish
concern.44 We
between
public
purpose
figure
a limited
would deter
46,
876,
38. 485 U.S.
108 S.Ct.
99 LEd.2d 41
defamation or IIED. Falwell does not stand for
(1988).
proposition
every
IIED claim based on
invariably requires proof
an utterance
aof
false-
Permitting Carpenter
pursue
39.
v. Robert Welch, Inc.,
hood.
an IIED
323, 351,
418 U.S.
Gertz
(1974)
dependent
falsity
(emphasis
claim that
is not
2997,
94 S.Ct.
41 LEd.2d
on factual
added).
permit
does not
her to evade the constitutional
apply
limitations that
to her defamation claim.
Ass'n,
157,
Digest
40.
Wolston Reader's
443 U.S.
reading
that we
dissent asserts
are
Falwell
166,
(1979).
99 S.Ct.
L.Ed.2d 450
narrowly, "expos[ing]
opinion
too
all
statements
public figures
liability."
at
directed
to IIED
Dis-
Falwell,
41.
485 U.S. at
S.Ct.
clear, only Leykis's
sent at 78. But as we make
allegedly harassing
Enters.,
exposed
conduct
to IIED
Mount Juneau
Inc. v. Juneau Em
Cf.
not,
liability.
opinions,
(Alaska
His
truthful or
1995)
pire,
(applying
891 P.2d
whether
protected.
are
actual malice standard to defamation claim aris
The dissent
assume that the Court thinks
ing
newspaper
"concern[ing]
out of
article
mat
every dispute
interest").
defamation standards underlie
aris
ters of
ing
published
assump
out
aof
utterance. That
Falwell,
(empha-
tion would be incorrect.
Cohen v. Cowles
485 U.S. 108 S.Ct. & Brad street, Builders, Inc., Inc. v. Greenmoss We are unconvinced that submit 472 U.S. 105 S.Ct. 86 LEd.2d ting jury an IIED claim to a in such case Gertz, (1985); 418 U.S. 94 S.Ct. unduly protected speech. will chill To recov Moreover, among the 2997]. forms of er for intentional infliction of emotional dis communication, enjoys broadcasting tress, IIED prove an claimant must protection most limited lst Amendment outrageous there was "extreme and conduct" Found., [citing FCC 438 U.S. Pacifica intentionally recklessly inflicted se 57 LEd.2d 1073 jury vere emotional distress.48 As the (1978)[47] here, gives instructed conduct rise to an outrageous IIED claim if it in "so only Likewise, there was sufficient evidence to character, degree, go and so in extreme as to permit jury to find that words beyond possible decency, all bounds of and to issuing departed his so-called "call-to-arms" regarded utterly as atrocious and intoler protected speech. from the bounds of We 49 Therefore, community." able a civilized that a seeking assume broadcaster to avoid instructed, jury as the was also "mere in cancellation in a local market ridicule sults, threats, indignities, annoyances, petty crities, local because debate about a show's oppressions or other trivialities" cannot form cancellation is a matter of interest and the basis of an IIED claim.50 previ We have pro- those sorts of words are therefore noted, ously jury and the was instructed qualifiedly by tected least the First here, that even harmful conduct "character stop Amendment. But did not after ized 'malice'" is insufficient out make speaking words that ridiculed or humiliated an IIED claim if the conduct is not "extreme person thought responsible he claimed he outrageous." An IIED claim is there for the show's cancellation Juneau. A arguably prove fore no easier to than a defa permissibly reasonable could find that claim, mation a defamation claim that his even "call-to-arms" words were "extreme and satisfy must the "actual outrageous" meaning within the in- malice" standard. addition, defining requires proof because IIED outrageous" struction "extreme and conduct, state, an permissibly because it intentional or reckless an could find mental plaintiff that he TIED provoke intended those words to must show that "the defendant listeners to acted in disregard high harass her. We also note that deliberate of a de any express gree his words were probability *17 devoid of or that the emotional dis 52 tress will follow." implicit message jury might that a an deem 47. Id. at patient 701. screening doctor failed to warn that test upon diagnosis which was based was uncon- 48. Inc., Finch v. Greatland 21 Foods, 1282, P.3d firmed) Wells, with Teamsters Local v. 959 749 (Alaska 2001) (citations omitted); 1288 n. 21 349, (Alaska 1988) (holding P.2d 358 that threat- Borough, Richardson v. Fairbanks N. Star 705 ening union member's he life if did not convince (Alaska 1985) (adopting P.2d 456 the Re- supervisor-spouse quit during his to strike was (SEconp) 46(1) (1965) § staTEmENT or Torts in de- law). IIED). outrageous conduct fining as matter of a claim for isolation, Leykis's derogatory Considered in 49. Id. merely words that ridiculed would not Trask, Compare Lybrand Id. v. 31 P.3d give rise to an IIED claim. There is therefore no (Alaska 2001) (affirming superior 802-05 court's danger they could be the basis for an IIED neighbor's dismissal of IIED claim because con- might infringe claim that on the First Amend- painting slogans duct in biblical on roof was not ment. Mackie, "outrageous") and v. 896 P.2d Chizmar (Alaska 1995) (affirming 209 trial court's Lybrand, (quoting 31 P.3d at n. 4 803 with physi- directed verdict based on conclusion that (Seconp) approval § Resrarement alleged misdiagnosis patient or Torts 46 cmt. cian's as HIV (1965)). positive d outrageous was nol conduct even when satisfy inform, must also persuade, IIED claims or com- no intent to municate. to def beyond applicable those hurdles other Injury presumed from is amation claims. far, focused on state law. So we have defamation publication under
the fact
is a
Because
claims
limited
plaintiff
an IIED
must
comparison,
law.53
law, we
purpose public figure under federal
severe emotional dist
prove that she suffered
permitting the IED
must consider whether
ress,54 i.e.,
qual
of such substantial
"distress
contrary
go
to
forward
be
to the
claim
First Amendment.58 We therefore consider
no reasonable
ity
enduring quantity that
Carpen
applicable
the limitations
to
whether
society
expect
person in a civilized
should
satisfy
IIED claim
federal law.
ter's
an
requirements
ed to endure it."
inherently protec
therefore
IIED claim are
Leykis's
The dissent characterizes
conduct;
only
liability is allowed
of most
tive
Dissent at 79.
speech
opinion
statements.
conduct is extreme
if intentional or reckless
Certainly
purporting
words
some of
opinion
emotional
Carpenter consisted of
outrageous and causes severe
to describe
Claiming
recognized,
infliction of
we have
those
intentional
statements. As
distress.
cannot be the basis for defamation or
words
a func
consequently
is
emotional distress
IIED claims. But the dissent's characteriza
circumventing the restric
means of
tional
jurors might fairly
recognize
to
tion fails
particu
This is
tions on defamation claims.56
Leykis spoke
al
find that
words
other
are
larly
those IIED claims that
so since
to be broadcast were not statements
lowed
defamation claims-because
mere "clones" of
expressing opinions,but statements intended
falsity-will
have to
both turn on the words'
above,
height
harass. As discussed
satisfy
standard if the
the actual malice
require
prevents
intent we
here
ened
figure
speech
or the
con
plaintiff
is a
chilling protected speech,
IIED claim from
a matter of
interest.57
cerns
speech
distinguish unprotected
because we
speech expressing opinions or address
Finally,
are also confident
we
if
public concern. Even
ing matters of
speech
contempora
are uttered
types of
that tell
two
our trial courts can craft instructions
neously,
unpro
a claim as to the
permitting
juries considering IIED claims how to distin
protected speech.
chill
speech
tected
will not
speech
permissibly
that can
guish between
privileged
speak
with an
speaker
A
is not
finding outrageous conduct
be the basis for
just
if
com
harass even
she has
intent
speech
Even
speech
protected.
is
important public
issues.
mented
interest
relates to a matter
protection
give
can
rise to an
loses its
the kind de-
harassing speech
Is
if,
meeting
IIED claim
addition
unprotected under federal law?
above
seribed
claim,
IED
requirements
recognized
for an
other
been
Four kinds of
have
Supreme Court
date
the United States
merely to harass and
uttered with an intent
(1988);
(Alaska
Inc. v. Juneau
Mount
Juneau
P.2d
Mackie,
Enters.
Chizmar
Room,
1995).
(Alaska
1995)
Tommy's
(quoting
Empire,
Inc. v.
P.2d
Elbow
(Alaska 1986)).
Kavorkian, 727 P.2d
analysis
it unneces-
of federal law makes
58. Our
*18
349,
plished by word or deed.
Thus,
uttering fighting
appeals
Decisions
the federal
words has
courts
impact
striking
recognized
the same
have held or
telephonic
the first blow in
affray;
an
uttering
true threats is a
harassment-whether
form of
effected
the con
verbal;
purely
assault
that is
creating
making
telephone
duct of
call with the
present danger
clear and
of imminent
intent
hanging up
saying
lawless
harass and
action
starting
is the verbal form of
nothing,
a riot or
speaking
viectim-may
to the
15, 24-25,
California,
59.
outrageous
Miller v.
413 U.S.
93
conduct
is liable for emotional dis-
harm).
any
(1973).
resulting bodily
tress
S.Ct.
2607,
G1 as fall- opinions a hostile reaction provoking These claim of criminally punished.71 be (the (1) "hostile reac- paragraph harassing ing within both must cover a law suggest that Spe- No. 17. exeeption) of Instruction constitution to withstand tion" conduct speech and the clearly per equated 2 Interrogatory IIED likewise of serutiny. The tort cial al conduct, and our speech informa- to both factual disclosing private tains of conduct Circuit's in exception, the D.C. contained other ruling is consistent with the tion Popa, that (2) v. Jury States No. in United Instruction paragraph statement to no intent made with speech harassing words out of IIED claim arose the Because dis political or "public on spoken to the to be spoke contribute or allowed that "to or were criminally punished.72 those words may air and because the course" to jury was unable Carpenter, the about" holding our that conclude therefore We applying without IIED claim consider Amend- First with current consistent here is No. Instruction precedent. ment No. 17 cor- argues that Instruction 17No. of Instruction 4. Effect prejudice not law and did rectly stated the instructed properly No. 18 Instruction claim. the IIED jury's consideration But IIED claim. of an jury the elements on have jury must that the unconvinced We are that Instruction jury not informed not 17 did Instruction No. that understood claim Carpenter's to apply did not No. 17 the breadth IIED claim. Given to the apply outrageous, or conduct was Leykis's that jury probable it is No. of Instruction IIED claim considering the that in apply to that claim. thought it did his between distinguish or should might that Car also unconvinced We are about derogatory words merely claim, IIED should prevail on her penter, to intended arguably were words that and his prove that required to have been Leykis ar- In essence harassment. to invite categories of one of the two fell under speech protected said was everything he gued that in Instruction speech described unprotected 1 Interrogatory Special that "speech," and reac 17s "hostile No. No. 17. Instruction or synonym for conduct "speech" as a used "fighting classic exception restates the a hostile reaction." provoke tion" "intended to acts consisting But conduct exception.73 words" similarly treated Interrogatory Special Prob., Dir., at the Dep't or Gormley v. fear, abuse Conn. State annoyance individuals telephone, employ not persons Cir.1980) who (2d (holding hands of that 941-42 F.2d unjustifiable mo- harassing punish other criminally communicate, but to Connecticut substantial"). "important or tives" was punishes both the statute phone calls because speech); v. harassing United States conduct and 672, 676-77 187 F.3d States v. 72. United Popa, Cir.1978) (hold (3d 783, 787 Lampley, 573 F.2d (D.C.Cir.1999). that case as reads The dissent claimed, nor appellant has not ing "[the awith "political concluding that communication so, beyond the successfully it is do could he is concern figure a matter of impose sanc Congress criminal power of the holding 82. That speech." protected Dissent telephone placement of interstate on the tions speech holding can be with our consistent annoy"); v. Dil Walker or harass, abuse calls merely to with the "intent punished if made Cir.1975) (state (4th lard, statute F.2d 4-6 inform, and with no intent harass persuade, or abuse making to "curse a misdemeanor we in the court As did Popa, communicate." threatening or vulgar, profane, anyone, or use holding who intend "those from our exclude any telephone" struck language over indecent Popa, political discourse." engage public or the state vague because and overbroad down as Courts at 677. F.3d Decisions construction, narrowing given the law a had not uphold Circuits and Third Appeal for the Second proposi stating from the start also but "Iwle though they do statutes-even anti-harassment legitimate interest has the state tion exception-be- political contain obscene, harassing threatening, and prohibiting supra note 71. target See they conduct. cause calls, thought generally which are phone none of statutes, tort of anti-harassment Like the Amendment") (em First protected of as addresses applied claim IIED omitted). added, citations phasis harassing allegedly conduct. 672, 676-77 Popa, F.3d v. States United Cf. 447-48, upheld U.S. (D.C.Cir.1999) (striking Brandenburg Ohio, 395 down statute (1969); also see 23 LEd.2d "public exception Lampley to lack of due 644, Anchorage, City 500 P.2d discourse," govern- Marks v. recognizing that but political 1972). (Alaska protection innocent "in the interest ment's *20 speech can be found to outrageous be if a jury Leykis found that had responsibility no jury finds that speaker intended to ha- spoliation July of the tape. Taken by rass provoking widespread audience to together, these may answers indicate that react hostility with target toward the of hu- jury Leykis's found that on-air conduct miliating demeaning and juryA comments. outrageous. was may This turn indicate reasonably could Leykis determine that en- jury rejected Carpenter's IIED couraged his listeners to angry with Car- only claim because his conduct satisfy did not penter and to contact her and harass her. the "immediate violence" element that was There is no reason why an plaintiff IIED discussed in Instruction No. expressly under such prove cireumstances must required by Special Interrogatory and im- there is in fact a clear present and danger of pliedly required by Special Verdict Form violence; immediate long so as acted Question requisite harass, intent We therefore hold that Instruction No. 17 enough that a person reasonable could think potentially prevented jury giving that his likely comments were prompt fair consideration Carpenter's IIED claim. listeners to contact or communicate with Remand for a new trial on the IIED claim is Carpenter fashion, in a hostile thus accom- consequently necessary. jury The on re plishing objective. short, his the "hostile mand should Leykis's consider whether con exception reaction" did not accurately de- duct, "(1) when entirety: viewed in its was claim, scribe IIED and made it (2) outrageous, extreme and was intentional more difficult prevail for her to on that claim. (8) reckless, and [Carpenter] caused se exception instruction's publication vere emotional distress." private factual information equally inap- plicable, equally potentially prejudicial. Instructions on Remand
There is no thinking basis for the verdict would have been the same if it had been clear Conduct in broadcasting the "call to arms" jury to the that Carpenter's IIED only claim and encouraging listeners to take harassing had to satisfy Instruction No. 18 and did not against action Carpenter protected was not also have satisfy Instruction No. be the basis for IIED lHabili least as part to that IIED claim based ty. Nonetheless, Leykis's some comments on broadcasting the "call to arms." The about and her trying actions in fairly evidence described in a manner favor- have his show taken off the air in Juneau ing Carpenter permitted would have reason- cannot be the sole basis for her IIED claim. jurors able Leykis's to find that conduct was There are why: First, two reasons the de extreme and outrageous. In allowing the rogatory comments are entitled to some IIED go issue to jury, to the the trial court speech protections because debate about apparently assessed the evidence the same whether a nationally broadcast radio show way, even though the trial post- court had longer should no be aired in poten Juneau is qualms trial about the claim. tially a matter of importance in Alas Furthermore, ka. Offensive argues, as the derogatory comments jury's answers special to the about persons verdict form would be to of nor may imply that sensibilities, mal they Instruction No. 17 Spe- arguably challenge the cial Interrogatory 1 actually credibility person affected identified as IIED verdict. In answering Special being responsible Verdict for the They cancellation. Question (11), Form found clear attacked the wisdom and need for cancella and convincing evidence that con- tion attacking person and her values. duct was "outrageous subject law, thus to an therefore, Under Alaska they addressed punitive award of damages." But in answer- matter of interest and are qualifiedly ing Special (10) Question Verdict Form privileged.75 They consequently cannot 74. Finch v. Greatland Foods, 75. These words Inc., defamatory, are not 21 P.3d for reasons (Alaska 2001). we discussed in Part IILA. We therefore do not need to consider whether under federal law Car- penter purpose public was a limited figure and *21 may consider such com may or not which it IIED for her basis be the sole themselves claim.77 decidingthe IIED privilege.76 ments the Leykis abused unless claim derogatory words Second, the the extent to cancel to the show's germane arguably Superior
were Refusal To Court's D. The interest, speaking lation, topic of Carpenter's Evidence into Admit outrageous con considered Excerpts cannot be them Compendium of Broadcast duct. Leykis's Salary Evidence of Discretion. an Abuse Not Was re derogatory comments the
But Carpenter's to relevant potentially main argues that the trial court Carpenter claim, jury on the to that claim. As IIED into refusing to admit its discretion abused derogato how may consider remand excerpts compendium of a one-hour evidence it was extreme whether bore on ry comments Leykis's show between broadcasts from to con encourage listeners to outrageous All of the ex August 2001. May 2000 and might It think her. or harass tact were from shows compendium cerpts in the listen to incite intended were his comments July program after the broadcast to take invitation arguable to act on his ers segments compendium consists The issue. and increased against her harassing action twenty-four taped broadcasts. that some foreseeability and likelihood "es- that the exhibit contends this, bear the comments would do so. intentionally rou- Leykis tablished that state the mental Leykis acted with whether attacked women." She tinely denigrated and Finally, IIED claim. for an required compendium demonstrates that asserts question to the may be relevant also words dis- to inflict emotional Leykis intended that emotional severe Carpenter suffered whether intentionally and that he tress on distress. personal informa- Carpenter's disseminated therefore should on remand Instructions estab- that the broadcasts argues tion. She July aspects of the those distinguish between by revealing injure her Leykis's intent lish an may the basis for that not be 24 broadcast and, by exten- toward women antipathy his not may. will those that We claim and IIED sion, her. fact- here. It is try draw that distinction to admit the entire court refused The trial in the best trial court is and the intensive that while the com- It ruled compendium. value probative assess the words' position to Leykis's atti- to show might tend pendium prejudice. undue potential and the women, prejudicial effect its toward tudes really tried to Moreover, parties have value. probative outweighed its might le that between comments distinguish finding outrageous the basis for gitimately be evidentiary rulings review We conduct, may not themselves comments discretion, although whether abuse may but IIED claim for an be the basis legal standard the correct applied trial court claim, and relevant be nonetheless review de law that we question of presents a be al jury cannot any comments novo.78 TIED liabili the issue of consider on lowed to permits ex- of Evidence Alaska Rule difficulty of potential ty. recognize We probative if its evidence of relevant also clusion accurately. But we are drawing the line unfair danger of outweighed by the value is to make be able trial court will confidant the hated wom- Leykis Evidence prejudice. the extent jury on remand to the clear superior challenges court's Carpenter also uttering words these malice in whether actual No. 15. proposed Instruction rejection of her claim might give both a defamation rise to justified ei- was not instruction Because claim. an IIED spoliation claim or her IIED ther give the refusal court's claim, superior alleg- only words here 76. We consider reversible error. was not instruction consider Carpenter. We do not edly spoke about descriptive invari- words would whether other (Alaska P.2d State, Smithart protected. ably qualifiedly 1999). en support lend to Carpenter's Superior claim E. The Court Did Not Err in intentionally recklessly Denying caused Westwood One's Motion distress, her to suffer emotional pro- but its for a Spolia- Directed Verdict on the slight. bative value is prejudicial effect, The tion of Evidence Claim. hand, on the other potentially great. As found that Westwood *22 pointed out, the trial court compendium the (but Leykis) One not committed the tort of included distasteful and offensive remarks spoliation by of destroying evidence tape the likely prejudice were to jury the against of $5,042 the show Carpenter and awarded Leykis, particularly because it composed was compensatory damages $150,000 puni (as "snippets" of the trial court characterized tive damages against Westwood One. The act them) taken out of context. The court did "-'[slpoliation' of is the destruction or altera preclude playing particu- evidence,79 tion of or its "intentional con lar passages impeach Leykis to if he denied cealment ... destroyed until it is by natural ever having particular said things or ever causes." Although this court has not laid having acted in particular a fashion while out the exact tort, elements of spoliation the broadcasting. We conclude that the trial it is clear that a viable underlying cause of court did not abuse its denying discretion in action accompany must spoliation claim,81 a admission of the compendium. entire plaintiff that a must show spoliation that the occurred "with the intent disrupt [the argues also that the trial plaintiff's] prospective action," civil court's refusal to allow cross-examination of spoliation that the prejudiced must have the Leykis on the terms and amount his annu of prosecution of the action.83 Westwood One al compensation as host of the show was an argues that it should have received a directed abuse of discretion. The trial granted court spoliation verdict on the claim because there Leykis's protective motion for a order be was no viable underlying cause of action and cause the evidence was not relevant to the because there was insufficient evidence of core issues of the case: intent. best, At the fact that Mr. receives compensation for his work is relevant In reviewing a trial court's denial of show that he go wants to making a a verdict, motion for directed we "determine salary. contrast, compensa- evidence, whether when viewed in the tion could be misused or by misunderstood Tight most favorable to non-moving party, jury potential as a yardstick for dam- is such that reasonable persons could not ages. particular case, In this differ in there is al- judgment their as to the facts." ready risk that jury impose could lia- "'If there is room for diversity opinion of bility based on their dislike of the content among people, reasonable question is one " 85 of the radio show in general jury.) opposed for the determining the liability narrow pre- issues probative
sented.
'The
salary
value of
1.
this
The IED claim was viable.
information
outweighed
is
potential
"An action based on
spoli
the tort of
prejudice.
for undue
ation is meritless unless it can be shown that
persuaded
has not
us that the
party's
trial
underlying cause of action has been
court abused its discretion in granting
prejudiced
spoliation....
Therefore,
protective order.
in order
plaintiff]
prevail
[a
on [her]
79. Estate
Day,
v. Willis, 897 P.2d
897 P.2d at
Day
78, 80 n. 2
of
(Alaska 1995) (citation omitted).
84. Ben Lomond,
Inc. v. Schwartz,
P.2d
Sides,
(Alaska
Hibbits v.
34 P.3d
(Alaska 1996).
2001).
G5
proba-
Leykis had
realizing that
upon
tress
claim,
underlying cause
[her]
spoliation
strangers
have not
to loathe
We
bly caused thousands
viable."
... must be
action
might act on his
them
and that some of
a cause of
required for
what
articulated
and confront
to harass
seeming invitation
in this con
"viable"
considered
to be
action
her.
encountered
have we
Only once
text.
claim, in Estate
"viability" element
determined
there
We
Day v. Willis.87
evidence of
2. There was sufficient
because
not viable
underlying claim
disrupt
intent
One's
Westwood
did not
concluded
duty that we
it relied on
claim.
reasonably find
could
Because
exist.88
find that
jury could
A reasonable
evidence
the uncontested
tape with the
spoiled the
One
Westwood
an IIED
the elements
satisfies
conduct
*23
litigation."
underlying
disrupt
the
to
"intent
claim,
was viable.
that claim
to
Douglas's letter
Attorney Jim
92
infliction of
intentional
the com
One informed
and Westwood
KJNO
elements.
had three
claim
distress
emotional
legal
West-
for
action.
potential
pany of
Leykis's
that
prove
to
required
was
She
notice of the
thereafter on
wood One
"(1)
outrageous,
and
was extreme
credited, there was tes
broadcast
If
potential claim.93
(8)
reckless,
(2)
and
caused
or
was intentional
tape was handed
timony
implied that the
89
distress."
emotional
[Carpenter] severe
The evidence
legal department.
to the
over
only the first ele
challenges
One
int
Westwood
requisite
establish
could therefore
sufficiently outra
Leykis's action was
ment.
claim
It was not error to submit
ent.94
if it was
IIED claim
out an
geous to make
jury.
to the
character, and so extreme
in
outrageous
"so
possible
beyond all
go
as to
degree,
Damages
Award
The Punitive
F.
regarded as
decency,
to be
and
bounds
Not Ex-
Spoliation Claim Was
in a civi
atrocious,
utterly intolerable
and
cessive.
90
insults,
Although "mere
community."
lized
challenges
One
op
threats,
annoyances, petty
Westwood
indignities,
award,
claiming
be the
$150,000
damages
cannot
punitive
other trivialities"
pressions, or
instruct,
claim,91
de novo
properly
"review
IIED
excessive." We
"grossly
of an
basis
dis
conduct
damages
find that
jury
could
punitive
ed
of whether
question
sufficiently
unconstitu
and thus
in Part
IILC was
grossly
above
are
excessive
cussed
Similarly, a
liability.
process clause
for IIED
the due
outrageous
tional under
Amendment." 95
Fourteenth
it was foreseeable
find that
could
by
citizen,
and humiliated
targeted
allegedly
argues
One
Westwood
admiring lis
radio before
Leykis on national
set
vague boundaries
is outside
by
award
inflamed
predictably
who seemed
teners
Supreme Court
States
by the United
out
dis-
comments,
emotional
would suffer
his
no-
not on
omitted).
defendant was
(citation
where
ation occurred
Day,
P.2d at 81
86.
897
claim).
was relevant
that evidence
tice
87.
Id.
Wash., 895
Providence
Sweet v. Sisters
94.
Cf.
Id. at 80-82.
1995)
spolia
(Alaska
(considering
492
P.2d
intentional,
Foods, Inc.,
hospital
when
negligent,
21 P.3d
v. Greatland
tion
89. Finch
records);
preserve"
2001).
(Alaska
Buzbee
failed to "create
1288
(Ala.
Inc.,
Servs.,
66
709 So.2d
Waste
v. Ala.
Id. at 1289.
(refusing
apply spoliation doc
Civ.App.1998)
tending
prove
any evidence
absence of
trine in
Id.
intent).
(Alaska
Sides,
34 P.3d
v.
92. Hibbits
2001).
Ass'n
Bering Sea Fishermen's
Cent.
(Alaska
(Anderson 1),
54 P.3d
Anderson
Corp., 63 SW.3d
v. Exxon
93. See Brumfield
2002).
spoli-
(holding
intentional
(Tex.App.2002)
no
America,
BMW North
Inc. v. Gore96and penalty
eriminal
tampering
evidence
State Farm Mutual Automobile
11.56.610(a)(1)
Insurance
under AS
supports the consti
Campbell.97
Co. v.
These cases hold that a
tutionality of the award. While Westwood
"grossly
punitive
excessive"
damages award
correctly points
One
out
it probably
violates the Due Process Clause.98
pro
Gore
could not have been convicted of tampering
vides
three
"guideposts"
for determining
on such
intent,
limited evidence of
the Su
(1)
when an award is unconstitutional:
preme
comparison
Court's
punitive
between
"degree of reprehensibility"
of the tortious
damages
statutory
penalties has not de
(2)
conduct;
disparity
"the
between the harm pended
finding
on a
the exact conduct
potential
harm
by
suffered
plaintiff]
[the
subject
punitive
damages
subject
would be
punitive
award";
(8)
damages
[the]
penalties.
Instead,
the other
Supreme
"the difference between
punitive
[the
dam Court has
penalties
considered the
"imposed
ages
penalties
award] and the civil
authorized
in comparable
Similarly,
cases."
the Su
imposed
in comparable cases."
preme Court in
Mutual
Insur
Pacific
Life
ance
Haslip
Co. v.
looked to the fines that
factor-reprehensibility-is
We do not find that the first
could be levied for insurance
gener
fraud in
The next factor
met.10
al, without considering whether
the defen
is the ratio
punitive
between the
damages
particular
dant's
conduct would warrant such
award and the harm
caused
the tortious
Thus,
a fine.103
appropriate
it is
to consider
conduct (generally
measured
the compen
*24
the fines for evidence tampering. The fines
satory
awarded).
damages
While the Su
can be
$1,000,000,
as much as
figure
well
preme Court is
actually
reluctant
draw a
punitive
above the
damages award here.104
line, it has said that a ratio of four to one is
of constitutionality.101
This factor
weighs
therefore
in favor of the
"close to the line"
The
constitutionality of the award.
ratio
Carpenter's
between
punitive damages
$150,000
award of
and her compensatory
Finally, we
punitive
note that
damages
$5,042
award of
nearly
is
thirty
one,
off may sometimes
only appropriate
be the
dam
the
Nonetheless,
allowable scale.
the rela
ages
spoliation,
recoverable
for
especially
tively
compensable
low
damages
spoli
on the
when the
finds
liability
no
for the under
ation claim
potentially
would
justify
high
lying claims.
It is difficult to see
spolia
how
ratio.
tion can cause harm other
than
denying
The third factor is the difference
plaintiff
between
the
the opportunity
fully prose
punitive
the
damages award and the civil
cute the underlying claims. Compensatory
penalties authorized or imposed in compara
damages cannot reflect much
specu
besides
ble cases. Carpenter argues that a compari
lation as to how
underlying
the
elaims would
son
punitive
between the
damages award and
have turned out if the evidence had not been
96. BMW N. Am., Inc. v. Gore, 517
559,
U.S.
the result
of
of
intentional malice,
trickery,
1589,
(1996).
116 S.Ct.
115. We review constitutionality the of AS Id. at 720-22. proper interpretation and the of AS novo, adopting 09.60.080 de the rule of law that Incurred in Obtain- Pro Rata Costs 09.17.020() I. ] [AS under the state ages due Damages Award ing the Punitive of award the total from deducted has been the that a later from State's Be Deducted concluded Should damages." We Fifty Share. to Percent "after" changed the word that amendment to require the state to meant "was "before" to de court declined superior The attorney's contin plaintiff's of a pay its share Carpenter's costs share of pro rata duct gent fee." punitive dam portion of her from the state's the House of argues that state also The the argues that ages award. proposed rejection of Representatives' in AS "contingent fee" as used phrase puni have allocated would that amendment expenses. includes costs 09.60.080 payment only after the state damages to tive interpretation of Carpenter's challenges state obtaining the incurred and fees of all costs statute, rejected amend to a pointing the points It position. its supports award that became to the bill package ment Brian Porter's state Majority Leader House The amendment Act of 1997. Tort Reform "was determined the amendment ment payment of both costs required explicitly main, [its] because in the unacceptable to be of of the state's share calculation fees before ... removed damages section punitive "All amounts provided: It the award. returning a full found to settle disincentive and fees State, of all costs payment after We the state."122 fines to of these 50% securing the in connection incurred II, in Anderson argument addressed dele argues that The state award." likely that more it was explaining in the final to costs any reference tion of these fifty percent of "'a full reference only fees are implies that the bill version of under fact to the fines As state's share.125 from the deducted only receive a would the state amendment noted, however, amendment II Anderson damages punitive percentage graduated subjects,126 precluding many covered package great awards awards, forty percent for up to indicates inferring that the deletion us from million, fifty percent rather than er than $10 pro rata de prevent intention legislative no matter damages award any punitive portion from the state's of costs duction II Anderson Because its size."123 what damages. punitive issue, we conclude squarely resolved ambigu statutory language is by deducting a Because did not err superior court to de ous, equitable considerations apply we contingent fee Carpenter's pro rata share pro rata deduc apply a whether puni termine portion from the state's share of the state's costs to tion of damages award. tive punitive twenty-five percent of the § not to exceed House Bill Sponsor Substitute damages be ordered exemplary awarded Leg., 1st Sess. 20th claimant, with the remainder paid to the reparations paid into a civil ordered award to be at 721. II, 78 P.3d 121. Anderson court admin- the state administered fund trust added); istrator"') Amn. Star (emphasis Mo. Porter, Rep. Brian 122. Memorandum 2004) (''The 537.675(3) (West of Missouri state *27 § Tim Majority Leader, to Senator Kelly, House deposit the tort victims' into a lien for shall have 16, 1997). (Apr. Chairman Rules Senate fifty percent extent of compensation fund to the judgment which damage final punitive of the (quoting at 721-22 II, 78 P.3d Anderson deducting any case after such attach in shall Porter, House Brian Memorandum Rep. added); ") (emphasis expenses attorney's Leader, fees Kelly, Senate Tim Majority to Senator ("In puni- any where case Utah Laws 16, 1997)). (Apr. Chairman Rules awarded, judgment shall damages the are tive punitive the the amount of provide that 50% Package, Proposed Resolution Bill 58 124. House shall, $20,000 an after damages in excess Leg., Sess. 20th 1st payment of attor- deduction allowable costs, judgment neys' be remitted fees of the states several statutes of 125. The deposit into state treasurer debtor to the specifically mention both split-recovery statutes added). Fund") (emphasis General Cope eg., Iowa See, fees. costs attorney's 2004) ("[Alfter 668A.1(2)(b) (West pay- §ANN. II, P.3d at 721. Anderson fees, an amount applicable costs and all ment of award.127 If the required state is not pay ter's defamation light and false invasion of pro its costs, rata share of litigation privacy claims. We also AFFIRM the evi- effectively receives the judg windfall of a dentiary rulings ruling and the Carpen- on ment in its favor incurring any without costs. proposed ter's Jury Instruction No. 15. We In order to ensure that the state is not REMAND Carpenter's IIED claim for a new unjustly expense enriched at the of litigants, remand, trial. On jury must be instruct- we read AS 09.60.080 to require pro rata ed to consider whether statements, deduction of costs from the state's share of when examined in entirety, their satisfy the punitive damages award. elements of an IIED claim. The trial court superior The court found that it was un- give should other instructions to inform the able to differentiate Carpenter's between jury distinguish how to speech- between costs punitive attributable to her damages based conduct that could be found to be award and those costs associated with her sufficiently outrageous for IIED lability, and unsuccessful claims. If Carpenter prevails qualifiedly that is privileged but that on her IIED claim on remand and additional might also be relevant to the IIED claim. punitive damages awarded, are superior We AFFIRM the denial Leykis's court find it easier to motion make that deter- not, mination. If the court apply should for a directed verdict Carpenter's on spolia- Carpenter's total application costs straight tion claim. We also AFFIRM the constitu- ratio Carpenter's compensatory damages tionality of punitive both the damages award punitive award to her damages award. 09.17.020(j), AS and AFFIRM the deduc- pro tion of a rata share of attor- Superior
J. Whether Court Abused ney's fees from the portion state's Its Refusing Discretion in To Deem punitive damages award, but REMAND for a Leykis Prevailing Party Is Not Yet pro rata reduction of costs from the state's Determinable. portion of the award. Under Alaska Rule of Civil Procedure 82(a), a prevailing party "shall be awarded J., concurring. CARPENETI attorney's fees." superior court ordered parties to bear their own costs and fees. In arguing jury that the was misinstructed Leykis appeals order, this arguing that be- claim, on her IIED Karen Carpenter argues cause he was not claim, found any liable for Instruction No. 17 was erroneous be- he was a prevailing party and should receive superior cause the mistakenly court assumed a fee award. We need not decide this issue that Carpenter "public was a figure." I now, given the possibility Leykis will agree, and would resolve this issue on that found Hable on remand for intentional inflic- basis. tion of emotional distress. If he is found liable, he will not be a prevailing party. If Whether Instruction No. 17 was erroneous liable, he is not found the trial court should depends on whether was a award attorney's fees if it can figure. Relying part Maga- Hustler distinguish the fees incurred in defending gine, Falwell,1 Inc. v. trial court instruct from those incurred in defending ed the disregard opin statements of
Westwood One. ion and apply lability standard of applied to a defamation brought claim by a IV. CONCLUSION public figure. But if Carpenter is not a reasons, For these Falwell, we grant figure, AFFIRM the which applied defama *28 of summary judgment dismissing Carpen- tion standards to an IIED claim brought by 127. See Alaska Native 46, Tribal Health 876, Consortium 1. 485 U.S. 108 S.Ct. 99 LEd.2d 41 v. Settlement Funds Held Or To Be Paid (1988). on for E.R. ex rel. 84 418, P.3d Ridley, 428-29 Behalf of (Alaska 2004) (citing Ins., Cooper Argonaut v. 556 (Alaska 1976)). P.2d 525
71 following to determine test the adopted Carpenter's control not figure, does public a a that has established a defendant whether TIED claim.2 public figure: limited-purpose is a plaintiff two bas- has identified Supreme Court The plaintiff has: must show A defendant figure status: public ground to which es on to (1) attention successfully public invited an individual instances In some others to influence in an effort views his notoriety fame or pervasive such achieve subject of that is the incident prior to the all figure for public a becomes that he (2) injected himself voluntarily litigation; More com in all contexts. and purposes to the voluntarily injects controversy related public monly, an individual into a (8) a assumed litigation; subject pub- of particular a into or is drawn himself pub- public a con thereby becomes prominence of controversy and position lie issues.[3] (4) and regular range maintained troversy; a limited figure He for media.[7] continuingaccessto category is often in this second person A figure." states public appropriately "limited-purpose this test a that to as I believe referred this that prove, on figure status must public a defendant To find what 4 anal- Supreme Court's accurately ingqui- reflects two-part a basis, must conduct a court it here. public adopt contro first, is a I would there in this area. ysis whether ry: second, nature whether versy; and "voluntarily in- Carpenter that I assume in the participation person's extent topic of whether into the jected" herself him or make to controversy sufficient were Juneau, although aired show should controversy.5 that figure within public her a question this that is little evidence there court, Carpenter's pointing superior already had July 24. KJNO before "public" officials government contacts some advertis- complaints and some received advertisers, reasoned KJNO cancelled, manager but its already ers had public limited definition [the] fit "within whether decision regarded the station's her efforts to the extent figure, at least "private a broadcasting the show stop air." from the Leykis Show Tom remove thing." Al approach. takes this also The dissent was a Therefore, that there I doubts have should the show topic of whether though the however, Assuming, controversy." "public a generated arguably in Juneau be canceled element, in- the second Leykis satisfied believe controversy,6 I do not public Leykis established whether quiry on was sufficient participation Carpenter's first, the test's satisfied conduct figure status public limited-purpose confer con- to the leads third, elements and fourth her. on figure. public she was clusion Supreme analysis its on Based hearing the that after testified Court States the United precedents, Court's July time on the first has Leykis Show Circuit the Second Tom Appeals general affects of which ques- the outcome figure is a 2. Whether way.'" appreciable segment it in an Mount some de novo. that we decide law tion of (quoting v. Fairchild Waldbaum at 836 P.2d 891 891 P.2d Inc. v. Juneau Enters., Empire, Juneau omitted). 1287, (D.C.Cir. (citations 1995) Inc., 829, (Alaska Publ'ns, 1296 F.2d 627 835 Firestone, Time, 424 U.S. 1980)); Inc. v. also see 323, 351, Inc., 418 U.S. Welch, v. Robert 3. Gertz (1976). 958, 448, 454, 154 47 LEd.2d S.Ct. 96 (1974) (emphasis 789 2997, 41 L.Ed.2d added). 123, Co., 745 F.2d Flynt Distrib. v. 7. Lerman Cir.1984) 418 U.S. (2d (relying Gertz, Inc., 477 136-37 eg., v. Lobby, Anderson See, Liberty U.S. at Inc., 424 Time, 2997; 91 LEd.2d 351-52, S.Ct. 3, 106 S.Ct. 242, 246 n. U.S. Digest v. Reader's 958; Wolston 454-55, 96 S.Ct. 166, 99 S.Ct. 443 U.S. Ass'n, F.3d Forbes, Inc., 259 eg., v. Proxmire, See, Carr (1979); Hutchinson L.Ed.2d Cir.2001). (4th 61 LEd.2d 135-36, 99 S.Ct. U.S. (1979)). explained that Enterprises we Mount Juneau simply matter of controversy is not '"'[al dispute, 'a real public, but rather interest *29 T2 program she discussed the with about five day the same she also complaint faxed her
friends
and associates.
letter to
Carpenter
KJNO.
She contacted a
testified that she
woman named
Kappler
Lorene
try-
who was
that,
was
required
unaware
by federal
ing
get
Leykis
the Tom
show taken off the
regulations,
the letter
placed
would be
in the
air and
Kappler
asked
what she could do to
"public
station's
file."8 She did not write
help. Kappler said she would send a letter
directly to Westwood One or
Leykis
the Tom
Carpenter
KINO and asked
to do so as Show and did not intend her letter to be
They
well.
also discussed several other ideas
forwarded;
thought
she
"it was a local issue."
during what Kappler estimated to be a half-
Carpenter testified that she did nothing
telephone
dozen
Carpenter
conversations.
related to The
Leykis
Tom
Show
July
on
actually
never
Kappler.
met
day,
July
The next
Carpenter
left mes-
KJNO's last
program
broadcast of the
sages
City
for three
Borough
and
of Juneau
July
on
assembly members. Two members never re-
Carpenter
testified
that
probably
she
calls;
turned her
actually
she
spoke
only
spent a total
issue,
of six hours on the
and
Carpenter
one.
related her concerns to that
spent most of that
member, inquired whether Juneau
talking
time
Kappler.
any
had
The KINO station manager agreed at his
decency ordinances, and asked for advice on
deposition,
passage
trial,
read at
how to handle the situation. That member
nothing
letter
to the station
checked with
city
attorney and then in-
indicated to him
public
she was a
person
Carpenter
formed
that Juneau had no decen-
rather
private
than a
person
cy ordinances;
expressing her
suggested
she
Carpenter
personal point of view.
contact the radio station's advertisers.
Carpenter
governor's
also called the
office
July
Before the
broadcast,
Carpenter
July
on
but
testified that she "wasn't
did not write letters about the show to the
specific about what [she] wanted when [she]
editor of the local newspaper.
She did not
called them."
She recalled that
she was
appear on television or radio. She did not
simply "trying to see if
any
there were
de-
organize or attend community meetings on
ceney
regarding
laws
broadcasting."
She re-
subject.
She
picket
did not
the station.
ceived
response.
no
Carpenter also contact-
words,
In other
any
did not do
ed
congressional
office in Juneau in an
things
jurisdictions
courts
other
attempt
gather
any
information about
fed-
have
significant
found
in concluding that a
laws,
decency
eral
apparently
but
did not
plaintiff
public's
invited the
attention to his
request
getting
assistance in
the show taken
or her views.9 Aside from discussions with
off the air.
Kappler, friends,
associates,
and
and a hand
testified
July
that on
22 she
ful of telephone
local, state,
calls to
contacted "three or four" advertisers
governmental
federal
offices, there was no
asked
they
them if
knew their ads were
evidence
communicated with
being
during
run
Tom
Show
anyone
other
private
than
specifi
individuals
they
whether
wanted
advertising
their
cally
dol
associated with airing
the Tom
support
lars to
the content of the show.
(Le.,
On
Show on KJNO
some advertisers and
8. 47
Regulations
(CFR.)
Code of Federal
eg.,
See,
Chevalier v. Animal Rehab. Ctr., Inc.,
(2004) provides
73.1202
F.Supp.
(N.D.Tex.1993)
(plaintiff
All written
suggestions
comments and
received
gave
maga
appeared
television,
interviews
public by
from the
zines,
licensees of commercial
"apparently
tried to orchestrate
AM, FM, TV and Class A TV broadcast stations
counter-letter-writing
campaign");
Samuels v.
regarding operation of their station shall be
Berger,
73
conclusion, because "those
change my
not
facts,
itself).10
I would
On these
the station
eannot, by their
charged
"invite[ ]
defamation
not
Carpenter did
that
conclude
conduct,
views.
their own defense
to her
create
attention"
own
public
figure.12
public
a
making the claimant
not
did
the evidence
that
conclude
I also
position
a
Carpenter "assumed
that
establish
"engage
not
Carpenter did
Because
participation
her
through
prominence"
of
spe
not "assume
and did
public's attention"
manager
Rhyner, the
controversy. Steve
con
in the resolution"
prominence
cial
not
Carpenter was
KJNO,
that
testified
Show, I would
troversy over the Tom
He testi
complained.
only
who
listener
figure.13
public
not a
that she was
hold
cancelling
major
were
advertisers
fied that
in
Carpenter became
show before
from the
is entitled
private figure,
As a
camel's
that broke the
straw
"[Tihe
volved.
speech.14
hurtful
greater protection
to
particu
back,"
Rhyner, was one
according to
Court,
Gertz,
addressing Supreme
"care
Rhyner did not
that
Leykis show
lar
brought by private figure,
defamation claim
the final
Rhyner then made
personally."
explained:
Carpenter was
the show.
to cancel
decision
usually
figures
public
officials and
Public
people concerned
one of several
therefore
greater
to
enjoy significantly
was
access
and there
of the show
the content
about
noteworthy
part
and
about
communication
especially
of effective
nothing
channels
icipation.11
opportunity
a more realistic
hence have
private
th{aln
false statements
counteract
Carpen
that
is no evidence
Finally, there
indi
normally enjoy. Private
individuals
media,
any access to
ter had or exercised
vulnerable
therefore more
viduals are
continuing access."
"regular
less
much
protecting
interest
injury, and the state
letter
Leykis read
fact that
The
greater.[15]
correspondingly
them is
24
does
during
July
broadcast
air
on the
person
made
in which
involved situations
323,
U.S.
Welch, Inc., 418
v. Robert
10. See Gertz
(hold
sought public
(1974)
opinion or
2997,
public expressions of
352,
that Justice, subject FABE, dissenting. Leykis may be today that concludes of emo liability intentional infliction to for I. Introduction at for statements directed tional distress conclusion the court's agree with I eannot of an during a heated discussion Carpenter statements, during a uttered Leykis's that pro Amendment the heart of First issue at discussing public a national broadcast Where, here, an TIED claim is tections. issue, unprotected are public a figure and figure public at a speech directed based on court's disagree I with the Because speech. concern, declining public matter of and on a Leykis made that the statements conclusion liability to erode the threatens to limit IIED protected are not during his broadcast dialogue political breathing space that robust in- the trial court's I conclude that speech, requires. fully jury from prevent not structions did infliction considering Carpenter's intentional to Leykis Issue a "Call Did Not II. claim. of emotional distress Arms." conclusions the factual support disagree I view, does not my the record I do opinion rests. the court's upon which largely on sev-
the court's conclusion-based 254, public figure "vol- Sullivan, purpose because she limited 376 U.S. Co. v. 26. New York Times controversy" injected untarily (1964) ... herself into the (quot- 11 LEd.2d 686 272, 710, Leykis Show should regarding the Tom 433, 83 S.Ct. ing whether 415, U.S. Button, NAACP v. 371 (1963)). trying by "purposely to airwaves 9 LEd.2d 405 remain on the Enters., Mount Juneau the outcome." influence 2002). (Alaska 1075-76 1. 56 P.3d (Alaska Empire, 836 P.2d Juneau Inc. v. omitted); 1995) (internal quotations see also 46, 56, LEd.2d 41 S.Ct. 485 U.S. 323, 351, 418 U.S. Welch, Inc., v. Robert Gertz (1974) (a limited LEd.2d 789 S.Ct. that the trial today not contend court does 2. The "voluntarily figure who purpose public is one jury on in- properly to instruct court failed public particular con- injects ... into himself threats. citement or true Publ'ns, Inc., troversy"); v. Fairchild Waldbaum ("a (D.C.Cir.1980) person 627 F.2d argues was not that concurrence 3. The purposes public figure limited become a has reasoning public figure, purpose a limited have, realistically can be attempting to he is if attempt participation to remove in the her have, major impact on the resolu- expected to insufficient the air was Show from Tom dispute public that has foresee- specific of a tion figure status on limited-purpose "'to confer persons ramifications able and substantial the trial I believe at her." Concurrence participants"). beyond immediate its was a correctly decided that court agree not supports the record the con people would call and send clusion that issued a "call to arms" Leykis responded faxes. by agree provoke intended to listeners to harass Car ing suggesting that listeners should harass penter or the Leykis's conclusion that words Carpenter, but suggesting that the listen any were devoid attempt persuade.4 "might er also contact that fine church in Examination of statements within your community got together try the overall context of the broadcast reveals do us in." In doing, Leykis so redirected the that the statements issue directly focused listener's proponents focus to other on the issue of concern-namely, show's cancellation.5 show's cancellation. To the extent that his encouraged statements any listeners to do Leykis's response to the publica- caller's thing, it persuade was to Carpenter, tion Carpenter's numbers did not include figure, change her mind demonstrating any suggestion that listeners Carpen- harass minority she held the by sug view and ter or make living Indeed, her life a hell. gesting alternate routes address her con Leykis himself did not directly urge listeners cerns. *33 to contact any reason whatso- The court sufficiently does not identify and ever. He made no statement to analyze the basis for its conclusion that that she expect should such treatment. In- Leykis issued a "call to arms." Unable to stead, speech his was directed at the issue of point any to by Leykis statements made that public concern-the cancellation of his show overtly encouraged listeners to harass Car perceived due to what he minority's to be a penter, patches the court together two ex wishes. if Leykis's Even exchange with the changes separated by over an hour in the listener could reasonably construed as alleged broadcast. The "call to appar arms" actively endorsing some sort of contact with ently began when a male reported caller Carpenter, his statements about censorship Carpenter's number, phone par which was contacting other suggest censors he in- tially out, blocked and her fax number. The tended to political foster simply caller stated debate rather than that "I everybody think encourage personal harassment. give Such an should ex- her a piece little of ... our Leykis minds." responded change to protected the caller not is no less than a radio with an exhortation that listeners use the politician's show's broadcast of a publicly list- number to Carpenter, harass but with a number, ed fax with an exhortation that lis- statement about censorship: politician teners contact the express to their Well, you know, again person here's one views on an issue of concern. trying to decide for an city you entire what recognition In the broadcast of Car ought to be And, able to you listen to. penter's fax know, sufficient, number alone is again, you not button; have an off you the court
have a also relies on a changer button, station Leyk- statement a tuner. get You can away appears is that to you the show if have occurred over an hour But, don't want no, to hear it. it's not that after reported the caller Carpenter's fax she doesn't want to hear it. She doesn't number. statement, this second Leykis you want to hear it. said to a "Well, female caller from Juneau: we you, hate to lose but say, stay After further like I exchange and another state tuned, by Leykis ment 'cause going get "it's a we're to shame when back on in minority can decide majority what Juneau." He later are continued: "And we're hear," going to repeated the caller hope going his to make that living woman's life a Majority at 58. on the web replied: site." When the caller wonderful," just "That would be contin- 5. Other statements in the going broadcast confirm that ued: "And we're-we're to find out who Leykis's intent extended no pressure further than to buckled en- to the in terms of these adver- courage petitions. debate example, out, For going he tisers. We're to going find and we're early stated in the going broadcast you ""I'm they to let know who you are. And then can are, people find out who put these up and we'll your write own letters." by the court statements cited patchwork statement Leykis intended this If hell." represents a "call to arms" supporting harassing faxes to send encourage listeners addressing pub- nothing than rhetoric more suggests sense Carpenter, common concern. figure and an issue of lic in fax number repeated have he would had written assuming that listeners stead of fallibility demonstrates The record an hour information over contact down the that we can mean- presumption the court's repeat Carpen not But did earlier. in- statements ingfully distinguish between propose that number. He did ter's fax and those contribute to debate tended to by con life hell Carpenter's make listeners precisely because of to harass. It is intended en her, make statements nor did he tacting attempting to draw such danger of courts Carpenter. Read to harass couraging them and the United this court fine lines context, merely the statement fairly and protec- Supreme Court have extended States get on the air Leykis's intent to back reflects public figures directed tion commentary opinion and and his in Juneau public concern. matters of that, Carpenter's make doing, he would in so life miserable. Leyk- Protects III. The First Amendment Leykis exhorted viewers notion that is's further undermined Statements. is
harass Contrary to the of listeners. the reaction today wholly incon opinion The court's might that one onslaught harassing faxes Supreme the United States sistent with audience Leykis incited his national expect if Magazine, Inc. v. holding in Hustler Court's hell, living Car life to make *34 figures may not recover public that Falwell phone that she received one penter testified showing of false IIED without a on claims of tes message and several faxes. actual malice.9 of fact made with statements dealing "were with that the faxes tified Indeed, air." being taken off the show it, Carpenter's As the court construes on the focused submitted as exhibits faxes any statement IIED claim is not based the show's broadcast.8 discontinuation Instead, fact, con while false or otherwise. response in listeners' actions While Leykis not make statements ceding that did conclusively prove the rea do not broadcast incitement,10 con the court that constitute comments, interpretation of sonable his "provoking cludes that his statements a conclusion that support the faxes ... harass inviting them listeners to harass Car encourage listeners did not liability.11 the basis for Carpenter" can be interpret not his and that listeners did penter holding and violates both This conclusion Moreover, if way. even he that statements of Falwell. the rationale to contact encourage listeners did Falwell, noted that Supreme Court In show's public concern-the about the issue affairs, public about "in the world of a fall far short actions cancellation-his debate that are less many things with motives done violate exhorting listeners to "call to arms" by the First sum, protected are than admirable Carpenter. this to harass the law they off what make right to.... That's to listen Leykis's earliee comment echoes 6. This thought, sug- Oh, echoed this you stop for." Another can buttons "[ylou stop can't this show. appropriate gesting is the Juneau, the on-off knob stop you me. And But can't Alaska. dealing one finds to with media avenue for baby.... And it doesn't mat- the Internet I'm on "Hey You Know stated: A third fax ter; distasteful. you the air. It will can take me off Been Can- You Tom Has What Thanks to Juneau, get this show Alaska will still maiter. page fax of this appears that a second celled." It way the other." .. one or jerk! it!" P.S. Sit on are a also stated: "You message, Carpenter phone In addition to one 99 LEd.2d 41 9. 485 U.S. hang-up calls that she received testified jerk spoke person who called her a one hung up. she before Majority at 60. right argued one has "[nlo 8. One Majority at 57. anyone else what I have me dictate to 7B
Amendment."12 The Court reasoned that ion statements cannot be the basis for an "while ... bad motive be deemed TIED claim. controlling purposes liability of tort To find error in the trial court's instruc law, other areas of the think we the First tion, attempts the court to limit to Falwell prohibits Amendment such a result in the day grounds. First, on two different without public area of public figures." debate about citing any authority any court, the court result, Supreme As a Court held that appears to limit reading Falwell its consti public figures cannot recover IED with protections tutional inapplicable as to state showing out a false statement of fact made ments that are neither true nor false.17 with malice.14 However, reading this cannot be correct. Supreme Falwell, As the Court noted in clearly protect Falwell is opinion intended to "(alt the heart of the First Amendment is the public statements about figures and matters recognition importance fundamental public very concern. And the definition of the free flow of opinions ideas and on mat opinion an accuracy statement is that its public ters of interest and concern." The cannot be By attempting established. to dis Supreme Court explain impor went on to tinguish this grounds case on the Leyk- tance of protecting speech public critical of false, is's statement can be neither true nor
figures: exposes the court opinion all statements di We have particularly therefore vigi- been public figures rected at to IIED liability. lant to ensure that expressions individual only clearly This is not contrary to Falwell of ideas remain free from governmentally substantially but protections eviscerates the imposed sanctions. The First Amendment it extended. recognizes no thing such "false" idea.... The court also tries to limit Falwell The sort of political robust debate en declaring protection applies its only to couraged by the First Amendment public figures.18 about But the First produce speech bound to that is critical of protections Amendment's robust for debate those who hold office those simply realm cannot turn on figures intimately who are involved such an amorphous Moreover, distinction. I *35 important public or, resolution of questions cannot conclude that the statements at is by fame, reason of shape their events in during sue-made a national broadcast- areas society of concern to large.... at were Carpenter. Indeed, not about Leykis's criticism, inevitably, Such always will not statement that his return to the air would moderate; be public reasoned or figures as Carpenter's make living life a hell is undeni public well as subject officials will be ably about and her reaction to his
vehement, caustic,
unpleas
and sometimes
show.
The
concern that
animated
antly sharp attacks.[16]
holding
Court's
in
pro
Falwell-the
need to
above,
explained
As
Carpenter,
tect
public
a
heated
public
rhetoric directed at
figures
figure, bases her
IIED claim on
and
public
rhetoric
issues of
concern-applies
regard
spoken by Leykis during his
plaintiff
discussions of
less of how a
package
chooses to
efforts to have his show can-
claim
regardless
and
of whether a statement
celled. Falwell makes clear
opin-
that such
public
is about
figure
a
public figure.19
or to a
12.
Here,
on a matter
Leykis's
only
offense was
figure, reflect
reasoned
Watts's
public
a
Court
regarding
and
concern
persuade
very
his
crude offensive method of
attempts to
"a kind of
and his
opinions
his
political opposition."
stating
a
Certainly Leykis's
injustice.
an
audience of
mean,
crass,
Carpenter were
remarks about
Hard
Similarly, in NAACP v. Claiborne
they
And
could
utterly repugnant.
and
Co.,
Supreme Court
the United States
ware
endorsing
contact
listener
as
construed
holding the Field
judgment
a
overturned
ac
outrage that her
express
for the eco
Secretary of the NAACP liable
to be cancelled
caused his show
tions had
boyeott
a
of white
consequences of
nomic
action, peti
But
incitement
such
Juneau.
partially
court
based
The state
businesses.26
tion,
concern
public
matters of
protest
on
liability
speech
a
which
finding of
its
the core
figures lies at
directed at
any
we catch
a statement
included
"Jf
protected
Falwell.20
speech
of the sort
stores,
any
you going in
of them racist
opinion on matters of
Statements
your
gonna break
damn neck."
we're
by hyperbole
characterized
concern are often
acknowledged that
Supreme
"[In
Court
stating
"very
method[s]
crude offensive
atmosphere
speeches
passionate
which
no
And there is
political opposition."
delivered, they might have been under
were
about
remarks
doubt
inviting
unlawful form of disci
as
an
stood
Nonetheless, be
ugly,
an
sexist
tone.
had
or,
least,
intending to create a fear
pline
as
the core of First
political debate is
28 Nonetheless, the Court held
cause
of violence."
States
protection,
United
Amendment
protected, reasoning that
that the
strong
commit
has evinced
Supreme Court
"(alu
free to stimulate his
advocate must be
ensuring
political hyperbole
ment to
spontaneous
ap
and emotional
audience with
ex
emotionally charged rhetoric
can be
unity
action in a common cause.
peals for
liability
or sanction.
pressed without fear
appeals do not incite lawless ac
such
When
pro
Supreme Court has
again,
Time
tion,
regarded
protected
they must be
example, in
speech. For
Watts
tected such
speech." 29
States,
Supreme
the United States
v. United
speech on mat
Despite this command that
under a
conviction
Court overturned Watts's
latitude,
given great
public concern be
ters of
threats to the President
prohibiting
statute
citing any
this case without
the court decides
rally,
During public
of the United States.22
Leykis encouraging lis
explicit statement
not intend to
had stated that he did
Watts
Carpenter.
In
illegally
harass
teners
"LI)f they
ever
report
for the draft and
stead,
between the lines of
the court reads
I want to
carry a
the first man
make me
rifle
opinion addressing a
several statements
my sights
is LB.J."23 The Court
get
public concern.
figure and a matter of
statute, but overturned Watts's
upheld the
principle
conviction,
politi
doing,
the "kind of
court violates the
cautioning that
In so
*36
should
involving such statements
that claims
indulged
by
in"
was not
hyperbole
Watts
cal
"background
pro
of a
against
the
be read
Noting
political
that the
arena "is
a threat.24
a
23.
Id. at 706.
is
Because the court assumes
20.
public figure
of the show a
and the cancellation
concern,
the New York court's
matter
of public
Id. at 707-08.
24.
Broadcasting,
Esposito-Hilder v.
in
SFX
decision
Inc.,
inapposite.
Esposito-Hilder,
In
is
at 708.
25.
Id.
employee
upheld
ruling
at a radio
that an
court
compet-
on a
for IIED based
station had
claim
886, 926,
L.Ed.2d
S.Ct.
73
U.S.
26. 458
derogatory com-
ing
radio station's broadcast
(1982).
wedding photo.
236 A.D.2d
about her
ments
(1997).
700-01
Unlike
665 N.Y.S.2d
Esposito-Hilder was a
Carpenter,
plaintiff in
S.Ct. 3409.
27.
Id. at
wedding photo
not a
private figure;
apply.
public
did not
concern. Falwell
matter of
927,
found national commitment
to
by
trial court
failing
erred
to instruct
public
that debate on
jury
issues should be uninhi
public figure may
that a
recover
for
bited, robust,
wideopen,
and that it
IIED
speech
based on
is "intended to
vehement, caustic,
harass" or
that is
by
intended to "harass
well
include
and some
unpleasantly sharp
govern
times
provoking
attacks on
a widespread audience to react
public
ment and
hostility."
officials." 30
doing,
In so
the court cre
category
unprotected
ates
new
speech
It is this commitment to robust debate that
public
directed at
figures-a
category
new
led the United
Supreme
States
Court to cre-
precise
whose
boundaries it does not define.
heightened
ate
IIED
standards for
claims
Supreme
Unlike the
Court's conscious ef-
public figures in Falwell Yet the court to-
carefully
forts to
liability
cireumseribe
day
rely
fit
solely
sees
on the elements of
protect public
Falwell, Watts,
in
debate
IIED
protect
speech
directed at
Claiborne, today's opinion creates a broad
figures-elements
Supreme
specif-
Court
category
unbounded new
unprotected
ically
inadequate
declared
in Falwell
The
speech
public figures.
directed at
The court
Supreme
United
explicitly
States
Court
re-
clarify
does not
how one can determine
jected
when
requirement
the notion that
speech is
public figure,
about a
nor
outrageousness
does
sufficiently protects
speech
explain
define "harass" or
how one
concern,
can dis-
on
reasoning
matters of
tinguish
opinions
between
that harass and
Falwell:
Then,
despite
those
do not.
recognizing
"Outrageousness" in
political
the area of
difficulty
"the
drawing
the line accurate-
and social discourse has an inherent sub-
ly,"
expresses
the court
confidence
jectiveness about
it which would allow a
jury's ability
my view,
to do
In
so.
such
impose liability
on the basis of the
confidence is
In
unwarranted.
the area of the
jurors'
views,
tastes or
perhaps
on the
Amendment,
First
vagueness
this
particu-
is
particular
basis of their dislike of a
expres
larly
short,
pernicious.
Amend-
First
"outrageousness"
sion. An
standard thus
ment demands more.
runs afoul of our longstanding refusal
Today's
damages
holding
allow
to be
threatens
to further chill
awarded because the
speech
speech
because
question may
of the court's
have an
conclusion that
adverse
audience.[31]
impact
emotional
jury may
derogatory
consider
comments-even
those that
opinion
con
subjective
The
outrageousness,
nature of
protected speech-in
cedes are
evaluating
particularly
applied
rhetoric,
when
eviscer- Carpenter's IIED claim.34
speech
Protected
protection
ates the
speech
on matters of
can not serve as the
lability,
basis for
re
public concern
or directed at
figures.
gardless of
whether that
serves as the
liability
Because
subjective
under a
test
sole basis for Hability or is considered as one
unpredictable,
it threatens to curb the use of
jury.
factor
purpose
protect
persuasive
such
tools
hyper-
as rhetoric and
ing speech is to
unnecessarily
avoid
chilling
political
bole in
speech.
premise
It
is this
public debate and dialogue. As the United
that the
Supreme
United States
recog-
Court
Supreme
States
recognized
Court
in New
Falwell,
nized in
premise
and it is this
Sullivan,
York Times v.
speakers
fearing
creates
the need to
heightened
establish
potential
liability for their statements will
standards
IIED
by public
figures.
claims
*37
only
"tend to make
statements which 'steer
35
far wider of the
In stark
Coupled
heightened
unlawful zone.'"
contrast
to the
stan
Supreme
dards the
Court
necessary
deemed
with the
Hability
opinion
fear of
state
Falwell,
in
today
ments,
the court
concludes that the
knowledge
protected
that even
Watts,
(internal
30.
32. at 59. (1958)). 78 S.Ct. 2 LEd.2d 1460
81 encouraged to contact a may have listeners by a will be considered speech could public figure about a matter of con- public concern. matters of chill discussion result, Frisby simply a does not protected cern. As jury to consider Allowing the un- support a conclusion that incited any protection os- wholly undermines part on the of his listeners. lawful conduct speech. tensibly granted encouraged if listeners to blanket Even he Moreover, startlingly advances a the court can- objections to the show's Carpenter with Leykis's testing whether low threshold cellation, Leykis's speech protected is com- in suggesting its penalized, speech can munication. that "it jury instructions discussion of think person could enough that reasonable Popa,41 relied Similarly, States v. United likely prompt to were that his comments today,42 demonstrates the court or communicate listeners to contact constitutionally important difference between 36 But en in a hostile fashion." on a unprotected harassment and rhetoric or communicate couraging others to contact Popa, In the D.C. concern. matter fashion, in a hostile public figure, even with a of a defendant vacated the conviction Cireuit public debate and the at the heart of lies prosecuted under a statute had been who example, un system For itself. democratic telephone calls making it a crime to make im liability could even be holding, this der disclosing identity and with [one's] "without encouraged listen posed on a broadcast threaten, abuse, annoy, or harass intent to express their mayor and to call a town ers had made any person." The defendant if as taxation listeners on an issue such views Attor phone calls to the United States seven mayor. Such encouraged to insult were Columbia, including ney for the District of mat breathing space for liability erodes the he referred to recorded calls which two that the United States concern ters Attorney as a "criminal" United States vigilantly guarded. Supreme Court has "whore," who "violated our and a 44 Noting that the defendant testi rights." justify its analogy to The court turns complain about that he had called to fied holding. support its conclusion To by police officers and having been assaulted unprotected, the court speech is conduct, the court reasoned prosecutor's upholding ordinances analogizes to decisions picketing.37 The court ap banning residential unconstitutional as the statute was of those who use "[plunishment proposition plied because Frisby v. for the cites Schultz38 political communicate telephone special solicitude. given home is that the government's message" did not further Frisby, Supreme Court the United States non- from "protecting individuals which interest content-neutral ordinance upheld a telephone." uses of communicative taking only picketing "focused prohibited likely Amendment would Similarly, the First residence." particular in front of a place directly contacted Car who protect listener were emphasized protestors The Court And, as detailed express a view. penter neighborhoods not banned from residential earlier, door-to-door, encourage listeners Leykis did not go free to and remained Carpenter by phone or literature, illegally harass and to contact residents distribute upholding a content-neutral most, encouraged them to ex by phone.40 But fax. At he petition on behalf opinions and picketing press their banning type a narrow ordinance concluded As the D.C. Circuit the show. ery penalizing rhetoric because is a far (D.C.Cir.1999). added). {(emphasis 41. 187 F.3d Majority at 62 Majority at 61. Majority at F.3d at 43. 187 (quoting 47 U.S.C. LEd.2d 38. 487 U.S. 223(a)(1)(C)). § *38 44. Id. at 673. 2495. 39. Id. at 108 S.Ct. omitted). (internal quotations 483-84, at 677 45. Id. 2495. Id. at 108 S.Ct.
Popa,
political
such
change
communication with a
by applying
of ideas
the actual
public figure
public
on a
publications
matter of
concern is
malice standard to
on issues of
protected speech.
public
concern,
interest and
even if the
harassment overlooks the fundamental dis-
Moreover,
the court's
analogy
telephonic
ure....
defamation
[46]
plaintiff
is not a
public fig
Citing
Publishing
prohibiting
Pearson
Fairbanks
tinction between
harassing
calls
punishing speech
Co.,
encouraged
explained
others
we
the rationale for such a
telephone
to make
policy
calls. The court does not
as follows:
holding
any
by Leykis;
base its
on
conduct
On the one hand there is the
interest
telephone
Carpenter.
he did not
or fax
In-
safeguarding
right
reputation.
to one's
stead,
holding
the court's
is based on a con-
On the other hand there is the interest
clusion that
words could be con-
allowing freedom of
expression
debate and
telephone
strued to exhort others to
or fax
public questions
and issues. We believe
Carpenter. Despite the obvious echoes of
that a fair balance of
competing
these
in
permeate
incitement
this line of reason-
terests is achieved where the law of defa
ing,
argument
the court
Leyk-
makes no
one,
permits
mation
lability
without
is's actions rose to the level of incitement or
comment,
damages,
criticize
pass
any
there was
jury's
error
in the
in-
judgment
on statements made
another
struction on incitement.
interest,
on an issue or
public
matter of
comment,
even if such
judg
criticism and
Today
forty
the court
years
overlooks over
ment
involves misstatements
of fact-so
of United
Supreme
precedent
States
Court
long as such misstatements are relevant
ensuring
dedicated to
adequate breathing
subject
spoken
matter
or written about
space
public
figures
about
by the
claiming
one
to be defamed and are
public
matters of
directly
concern.
It
con-
not shown
him to have been made with
travenes
Supreme
the United States
Court's
malice.[47]
actual
command that
brought by
claims of IIED
public figures must
heightened
meet
Welch, Inc.,
In Gertz v. Robert
the United
proving
standards of
false facts and actual
Supreme
States
Court concluded that al
malice.
though the actual malice standard
appro
priately applied to
"occupy posi
those who
Privilege
IV. The Mount Juneau
for Mat-
pervasive
tions of such
power and influence
ters
of Public Concern
Protects
they
are
public figures
deemed
for all
Leykis's Statements.
purposes"
limited-purpose
and to
public fig
ures who have "thrust
themselves
to the
opinion
The court's
wholly
is also
inconsis-
particular
forefront
controversies
tent
longstanding
with this court's
policy of
order to influence the resolution of the issues
protecting speech
on matters of
inter-
involved,"
separate
analysis
required
through
est and concern
application of the
respect
private
individuals.48 The
actual malice standard.
if Carpenter
Even
Court held
long
they
that "so
do not
were not a
figure, the Mount Juneau
impose
fault,
liability without
the States
privilege protects Leykis's
statements
define for
appropriate
themselves the
stan
precludes liability in the absence of actual
liability
publisher
dard of
for a
or broadcast
malice and a false statement of fact. As this
defamatory
er of
injurious
falsehoods
to a
recognized
court
in Mount Juneau:
private individual."
public figure
[The
only
test
is not
application
route to
Gertz,
of the actual malice
majority
the wake of
of states
standard.
protect
We further
adopted
free ex
negligence
have
standard with re
Enters.,
323, 344-45,
Empire,
Mount Juneau
Inc. v. Juneau
48. 418 U.S.
(Alaska 1995).
891 P.2d
L.Ed.2d 789
(citing
Id. at 837-38
Pearson v. Fairbanks Pub
Id. at
vate actions.50 in defamation to recover plaintiffs v. in Mount follow suit declined to This court Virginia and James Louise HUDSON Juneau, to free reaffirming commitment its Hudson, Appellees. Arthur matters of expression on speech and dom of mal by adhering to the actual public interest No. S-12214. standard, private individuals. even for ice Supreme Court of Alaska. Borough, recog Slope we v. North Taranto privilege to of this a further extension nized Nov. safety public health and speech on matters of poli our consistent These cases reflect .51 safeguard an balancing the need to cy for free reputation with the need
individual's expression on issues
dom of debate
public concern.52 opinion can extent the court's
To the to recover dam- to allow individuals
be read speech
ages under IIED claims speech privileged as on otherwise be
would concern, I public interest
matter of Instead, reasoning. depart its
would Falwell, logic inherent
recognition of the court has respect for the balance this
consistently in favor of discussion struck issues, protection to I would extend under the Mount Juneau
Leykis's statement I think it is clear
privilege. Because a matter of
Leykis's related to comments concern, the Mount Ju-
public interest all state- applies, protecting privilege
meau fact made except false statements of
ments malice.
V. Conclusion Leykis encouraged disagree I
Because Carpenter, and be-
his listeners to harass opinion protected
cause figure and a at a
speech directed concern, respectfully I dis-
matter of today. opinion court's
sent from the Williams, F.Supp. Gay 52. See Sack, eg., Sack on DEFAMATION® See, 1 Romert D. law). 1979) (D.Alaska (interpreting (3d amp Retarep Alaska § LreEt, Prostems 6.1 ed.2007). 1999). (Alaska
51. 992 P.2d