Idaho Supreme Court hears James Verity case

Justices Robyn Brody and John Stegner listen as attorney Deb Kristensen makes her arguments on behalf of USA Today and KTVB before the Idaho Supreme Court, Friday, Sept. 21, 2018. At the heart of the case attorneys argued Friday before the Idaho Supreme Court is the question of when and why news organizations can face lawsuits for factual reporting, as well as who can file that lawsuit.

The Idaho Supreme Court currently has under consideration a case that will have a significant impact on your vital rights of free speech and freedom of the press.

A former Vallivue schoolteacher is suing USA Today, KTVB and a number of others over pieces of investigative journalism they produced. Those stories revealed that the teacher had lost his teaching license in Oregon after it was found that in 2005 he had engaged in sexual contact with an 18-year-old female student. He resigned his Idaho teaching position after the stories broke.

Now the teacher is suing USA Today and others who brought those facts to light.

It is undisputed in the teacher’s lawsuit that the reports were true in each and every factual claim they made. The suit is based on a controversial doctrine, never before adopted in Idaho, called “defamation by implication.” This doctrine holds that even if everything you say is true, you can still be held liable for the false inferences a listener or reader could draw from them.

The question before the Supreme Court isn’t whether the news stories actually contained a libelous implication. It’s whether the case can proceed on that basis, or whether it is necessary to prove that a statement was actually false to bring a suit. It’s a so-called “case of first impression,” meaning Idaho courts have never addressed the question of whether defamation by implication can serve as the basis for a civil suit.

Without either precedent or legislation to determine the outcome of the ruling, this is as close as courts get to acting as legislative bodies. If the justices find the case can move forward, they have created a precedent that allows future defamation cases to be brought not on the basis of false statements, but on the basis of inferences.

The chilling effect that a finding for the teacher would have on free speech and debate about matters of public concern is hard to overstate. The best defense against a libel suit is simple: “Everything I said was true.” That should be enough, and it requires the party bringing the suit to identify a false statement and present evidence showing it isn’t true in order for the lawsuit to proceed.

Given how slippery and open to interpretation the implications of a news story or Facebook post or email to a friend may be — any communication between two or more people can serve as the subject of a defamation suit — a finding that suits can be brought for defamation by implication would open the door to a new strategy for the powerful to silence speech they do not like.

Unlike many states, Idaho doesn’t have a statute punishing so-called SLAPP suits — strategic lawsuits against public participation. These are suits of questionable merit often brought by powerful individuals or organizations against speakers and writers who are critical of them. Even if the suit has no merit, a deep-pocketed individual or group can keep the speaker tied up in court, drain them dry with legal costs, and finally force them out of desperation to shut up.

Combine the relatively free rein given to SLAPP suits in Idaho with a new, nebulous basis for bringing them, and you have a perfect recipe for chilling genuine public debate.

Let’s hope that doesn’t happen here.

The Post Register’s editorial board consists of Publisher Travis Quast, Managing Editor Monte LaOrange and editorial writer Bryan Clark. Clark can be reached at 208-542-6751.

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