| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Carpenter (10/26/2007) sp-6179
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| STATE OF ALASKA, | ) |
| ) Supreme Court No. S- 10700/10709 | |
| Appellant, | ) |
| ) Superior Court No. 1JU-00-1153 CI | |
| v. | ) |
| ) O P I N I O N | |
| KAREN CARPENTER, | ) |
| WESTWOOD ONE, and TOM | ) No. 6179 - October 26, 2007 |
| LEYKIS, | ) |
| ) | |
| Appellees. | ) |
| ) | |
)
KAREN CARPENTER, )
)
Appellant, )
)
v. )
)
WESTWOOD ONE and TOM )
LEYKIS, )
)
Appellees. )
)
)
WESTWOOD ONE and TOM )
LEYKIS, ) Supreme Court No. S-10739
)
Appellants, )
)
v. )
)
KAREN CARPENTER, )
)
Appellee. )
)
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Patricia A. Collins, Judge.
Appearances: Jason T. Mogel, Assistant
Attorney General, Anchorage, and Gregg D.
Renkes, Attorney General, Juneau, for the
State of Alaska. Ray R. Brown and Linda M.
OBannon, Dillon & Findley, P.C., Anchorage,
and Jack B. McGee, Law Office of Jack B.
McGee, Juneau, for Karen Carpenter. Leslie
Longenbaugh and L. Merrill Lowden, Simpson,
Tillinghast, Sorensen & Longenbaugh, Juneau,
for Westwood One and Tom Leykis.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
CARPENETI, Justice, concurring.
BRYNER, Chief Justice, with whom CARPENETI,
Justice, joins, dissenting in part.
FABE, Justice, dissenting.
I. INTRODUCTION
Juneau resident Karen Carpenter wrote a letter to a
Juneau radio station complaining about the Tom Leykis Show, a
national radio talk show broadcast locally by the station. The
station forwarded her letter to Tom Leykis, who read it on the
air while making derogatory and sexually explicit remarks about
Carpenter and making other comments that allegedly inflamed
listeners and encouraged them to contact or confront Carpenter.
Carpenter sued Leykis and his producer, Westwood One, for
defamation, intentional and negligent infliction of emotional
distress, and invasion of privacy. She also sued for spoliation
of evidence, claiming Westwood One and Leykis intentionally
destroyed the tape of part of the show. The superior court
granted summary judgment against Carpenter on her defamation,
negligent infliction of emotional distress, and false light
privacy claims, but submitted her spoliation, intentional
infliction of emotional distress (IIED), and intrusion upon
seclusion claims to a jury. The jury found for Leykis and
Westwood One on the IIED and intrusion claims and found for
Carpenter against Westwood One on the spoliation claim and
awarded her compensatory and punitive damages against Westwood
One. The parties appeal rulings concerning the defamation,
privacy, and IIED claims. Westwood One challenges the spoliation
verdict and the damage awards. Carpenter disputes the
constitutionality of allocating part of the punitive damages
award to the State of Alaska, and she and the state raise
questions about how that allocation should have been calculated.
We reverse in part and remand because we conclude that
Instruction No. 17 erroneously limited the jurys consideration of
Carpenters IIED claim. With a minor exception relating to costs,
we otherwise affirm the superior courts rulings.
II. FACTS AND PROCEEDINGS
Tom Leykis is a radio personality; in 1998 he hosted
the Tom Leykis Show, a four-hour radio talk show. Sex-related
topics were a common feature of the program. Westwood One, Inc.
produced and distributed the show as a live radio program
broadcast five days a week by radio stations nationwide. Juneau
AM radio station KJNO broadcast the show weekdays from two to six
p.m. in the Juneau area between June 8 and July 24, 1998.
Karen Carpenter, a Juneau resident, first heard the
show on July 20, 1998. Carpenter testified at trial that she was
concerned about its content, and expressed her concerns to a City
and Borough of Juneau assembly member on July 21 and also made or
tried to make various inquiries to other government officials
asking about decency laws. Carpenter testified that she
contacted three or four KJNO advertisers on July 22 and asked
them if they knew their ads were being run during the Tom Leykis
Show and whether they wanted their advertising dollars to support
the content of the show. Carpenter then faxed KJNO a letter
stating that she found the majority of the show very offensive
and that she thought it was unsuitable to air when children might
be listening. Her letter informed KJNO that she had contacted
and would continue to contact Juneau radio advertisers whose ads
ran during the Tom Leykis Show and that she would do everything
in [her] power to have the show taken off the air as soon as
possible. The station placed the letter, which displayed
Carpenters fax number, in its public file. Someone at KJNO faxed
a copy of the letter to the Tom Leykis Show in California with a
handwritten note, Have fun. Carpenter testified that she was
unaware that, as required by federal regulations, the letter
would be placed in the stations public file.1
Around that time, Steve Rhyner, KJNOs station manager,
decided to take the Tom Leykis Show off the air because major
advertisers had complained about the program and Rhyner objected
to the content of one particular show. July 24, 1998 was the
last day the Tom Leykis Show was broadcast in Juneau.
During the July 24 broadcast, Leykis made several
remarks about KJNOs cancellation of the show and Carpenters
letter. He described those who objected to the show as some
small band of old prunes and old blue-hairs, nut cases and all
these cretins. He said: [A]fter we go, keep an eye on our web
site. Im going to find out who these people are [who cancelled
the show], and well put it up on the web site. He complained I
hate those those old biddies who sit out there and have nothing
better to do than to write in to radio stations. He also said:
Maybe if this woman had gotten laid in the last 50 years, who
writes into the station and started making all these waves, maybe
she wouldnt be complaining so much. Im not kidding. After
reading Carpenters letter on the air, Leykis commented:
And its signed, the woman who wrote the
letter its signed: Karen Carpenter. Well
Karen, I have a little something that you
could use right about now. [buzzing sound
intended to simulate the sound of a vibrator]
Sit on this, you old prune. Come on, get
close to the radio. Get right on top of the
speaker, baby. You moron. You jerk. You
and your little band of nut cases out there,
trying to decide whats going to be on the
radio in Juneau, Alaska. You know, maybe you
ought to go out and get laid once in awhile,
huh? [buzzing sound]
You cretin. Are your nipples getting hard
yet, baby? Feel the power. You cant stop
this show. Oh, you can stop Juneau, Alaska.
But you cant stop me. . . .
You and your stupid your stupid church and
your stupid religion, and you and your stupid
god damned bunch of marauders. You morons.
Jerks.
Im enjoying this. Im sporting wood right
now, just thinking about it. Woo hoo. . . .
. . . .
Oh, Karen Carpenter. Karen Carpenter wanted
our show off the air. No, not that Karen
Carpenter. But Karen, sit on it, baby.
[buzzing sound]
Oh, yeah. See, if you got more of this, you
wouldnt be writing complaint letters to the
station.
Later in the show, a Juneau caller attempted to broadcast
Carpenters home telephone and fax numbers, which were listed in
the local telephone directory under K.L. Carpenter, and expressed
the hope that people would send her faxes. The telephone number
was partially bleeped out. Around this time, according to the
trial testimony of one of Carpenters friends, Leykis also
encouraged his listeners to make Carpenters telephone ring off
the hook. Later in the program a Juneau fan called in to praise
the show. Leykis responded: Well, we hate to lose you, but like
I say, stay tuned, cause were going to get back on in Juneau. . .
. And were going to make that womans life a living hell.
According to the trial testimony of another of Carpenters
friends, this living hell comment was used repeatedly throughout
the broadcast.
Carpenter heard the first part of the broadcast and
learned about other parts of the show from friends who had heard
it. She testified later that she felt humiliated and sexually
violated. She testified that she received a telephone message at
her home that repeated part of what Leykis had said about her.
She also received several threatening faxes at her home.
Carpenter was later diagnosed with post-traumatic stress syndrome
and an anxiety disorder.
The Tom Leykis Show was recorded in the studio on VHS
videotapes as the show aired. These tapes were stored in a
drawer in the studio; as soon as the drawer was full, the tapes
were recycled, erasing the recordings. There were various
estimates of how long the tapes stayed in the drawer. A Westwood
One executive estimated they stayed there four to six months,
while the shows producer testified that judging by the size of
the drawer, [the tapes] go back six to eight months, or
approximately a year.
Carpenter wrote in an affidavit that she believe[d]
she requested a copy of the July 24, 1998 tape from Westwood One
and never received a response, and at trial she testified with
certainty to having requested a copy. She also made several
requests through her lawyers. Attorney Robert Reges testified
that he sent an email to KJNO requesting a tape soon after the
July 24 broadcast. An affidavit from KJNO employee Justin
McDonald indicates that Reges did not identify himself as a
lawyer, and did not admit the true purpose of his request.
On December 24, 1998, five months after the broadcast,
another Carpenter attorney, Jim Douglas, wrote a letter to KJNO
and Westwood One, requesting a tape and making it clear that
legal action might be forthcoming. No address was given for
Westwood One, just the name of the company and its street address
in California. Westwood One employees testified that they had
not seen the letter, but the shows producer testified to a
general recollection that the companys legal department had
requested the tape and that upon receiving such a request he
would have made a copy of the tape and sent it to the legal
department. He recalled that a copy was found. He also
testified that he would not intentionally have altered or
destroyed a tape of th[e] show, and that he did not do so.
Douglas testified that he never received a response from Westwood
One, and that KJNO told him that the station had forwarded the
letter to Westwood One. The only copy of the July 24 show ever
found was a cassette of the first two hours; KJNOs Justin
McDonald provided this tape and recalled in an affidavit that
Westwood One had sent him the tape possibly before the end of
1998. He kept the cassette with his personal tapes and forgot
about it until Steve Rhyner requested it in 2001. There was no
evidence that a recording of the second half of the four-hour
show ever surfaced.
Carpenter filed a superior court complaint against Tom
Leykis, Westwood One, KJNO, Alaska Broadcast Communications,
Inc., and Steve Rhyner. She alleged that Leykiss comments about
her on his July 24, 1998 broadcast were defamatory, caused
negligent and intentional infliction of emotional distress, and
placed her in a false light. She also alleged that Leykis and
Westwood One spoliated evidence.
Alaska Broadcast Communications, Westwood One, and
Leykis filed summary judgment motions on all of Carpenters claims
on grounds that Leykiss comments were protected by the First
Amendment and that Carpenter was a limited public figure on the
issue of obscenity in the mass media. Carpenter filed a motion
for partial summary judgment on her claims of intentional
infliction of emotional distress (IIED), negligent infliction of
emotional distress, invasion of privacy by way of false light
publicity and intrusion upon seclusion, and spoliation of
evidence. The trial court issued an order granting in part and
denying in part the parties cross-motions for summary judgment.
It dismissed Carpenters claims of defamation, negligent
infliction of emotional distress, and false light invasion of
privacy. The court declined to grant summary judgment to either
side on Carpenters claims of IIED, intrusion upon seclusion, and
intentional spoliation of evidence.
A jury trial was held on those claims. Leykis and
Westwood One moved for a directed verdict at the close of
evidence and the trial court took their motion under advisement.
The jury found that Westwood One had engaged in intentional
spoliation of evidence and awarded Carpenter $5,042 in
compensatory damages and $150,000 in punitive damages. The jury
also returned a verdict for Leykis and Westwood One on Carpenters
claims of IIED and intrusion upon seclusion and for Leykis on her
spoliation claim. As to the spoliation claim, Westwood Ones
directed verdict motion was converted to a motion for judgment
notwithstanding the verdict. The trial court ruled that the
directed verdict motions were moot as to the invasion of privacy
and IIED claims; it denied the JNOV motion as to the spoliation
claim.
Carpenter moved after trial for an order declaring AS
09.17.010(b) and AS 09.17.020(j) unconstitutional. Alaska
Statute 09.17.010(b) imposes a cap on non-economic damages awards
in personal injury and wrongful death cases. Because the jurys
award did not include non-economic damages, the trial court
dismissed as moot the portion of Carpenters motion addressing AS
09.17.010(b). Alaska Statute 09.17.020(j) requires payment of
fifty percent of a plaintiffs punitive damages award to the State
of Alaska.2 The trial court ruled that AS 09.17.020(j) was
constitutional. Carpenter also objected to the form of the
judgment proposed by the defendants; she argued that the court
should deduct from the punitive damage award the contingent fee
(including her costs) she owed her attorneys before the court
awarded one-half of the remainder to the state. The State of
Alaska intervened to protect its interest in the punitive damages
award. The trial court ruled that it would deduct the contingent
fee from the punitive damages award before distributing one-half
of the balance of the award to the state. The trial court issued
a final judgment on June 27, 2002. On September 20, 2002, it
denied Carpenters motion to deduct fifty percent of her costs
from the states portion of the punitive damages award.
Leykis, Westwood One, and Carpenter all moved for
attorneys fees. The trial court denied all fees motions and
ordered the parties to bear their own fees and costs.
In Case No. S-10709 Carpenter appeals the trial courts
grant of summary judgment against her on her defamation and false
light claims. She also appeals two jury instructions, two
evidentiary rulings, the ruling on the constitutionality of AS
09.17.020(j), and the denial of her motion to deduct costs from
the states share of the punitive damages award.
In Case No. S-10739 Westwood One appeals the denial of
its JNOV motion on the spoliation claim, and also appeals the
constitutionality and amount of the punitive damages award;
Westwood One and Leykis appeal the denial of their motion for
prevailing party attorneys fees and costs.
In Case No. S-10700 the state appeals the pro rata
deduction of Carpenters attorneys contingency fee from the states
share of the punitive damages award.
III. DISCUSSION
A. The Superior Court Did Not Err in Granting Summary
Judgment Against Carpenter on Her Defamation Claim.
Carpenter appeals the superior courts grant of summary
judgment to Leykis and Westwood One on Carpenters defamation
claim.3 We review grants of summary judgment de novo,4
considering the facts presented in a light most favorable to the
non-movant to determine whether any genuine issues of material
fact exist and whether the movant is entitled to judgment as a
matter of law.5 We apply our independent judgment to
constitutional law issues.6
The elements of a defamation claim are: (1) a false and
defamatory statement; (2) unprivileged publication to a third
party; (3) fault amounting at least to negligence; and (4) either
per se actionability or special damages.7 A defamatory statement
tends to harm the reputation of another so as to lower [her] in
the estimation of the community or deter third persons from
associating or dealing with [her]. 8 An expression of opinion is
defamatory if the expression contains an implied assertion of
false fact and is sufficiently derogatory as to cause harm to the
subjects reputation.9 It is not necessary that the communication
actually cause harm to anothers reputation; its character depends
upon its general tendency to do so.10 If the context demonstrates
to the audience that the speaker is not purporting to state or
imply actual, known facts, the speech cannot be the basis for a
defamation claim.11
The common law rule that a pure expression of opinion
may serve as the basis for a defamation action was rendered
unconstitutional by recent United States Supreme Court decisions.
The Supreme Court has held that the First Amendment bars
defamation actions if the allegedly defamatory statements are
pure expressions of opinion, not implied or stated assertions of
false fact.12 The Court recognized that [t]he freedom to speak
ones mind is not only an aspect of individual liberty and thus a
good unto itself but also is essential to the common quest for
truth and the vitality of society as a whole.13
The superior court granted summary judgment against
Carpenter on her defamation claim, reasoning that Leykiss
statements about Ms. Carpenter . . . [were] opinionated insults
protected by the First Amendment. The court held that Leykiss
statements were hyperbole, used only for shock value, and d[id]
not state or imply any factual basis. We agree.
In Sands v. Living Word Fellowship, we explained: [t]o
ascertain whether a statement is factual, courts consider the
type of language used, the meaning of the statement in context,
whether the statement is verifiable, and the broader social
circumstances in which the statement was made. 14 Many of Leykiss
remarks about Carpenter were pure insults that were not factually
verifiable. Even those statements that could constitute implied
factual assertions, such as those about Carpenters sexual habits,
were not factual under the circumstances. No listener would
understand Leykiss remarks about Carpenters sexual habits to
imply actual facts about Carpenter. Sex-related jokes were a
common feature of the show. Even if Leykiss remarks implied that
Carpenter was in fact sexually frustrated and deprived, no
reasonable listener would believe that Leykis was purporting to
reveal actual, known facts about Carpenter.15 While Leykiss
statements were offensive to any rational person, they were not
defamatory.16
On appeal, Carpenter argues that the distinction
between fact and opinion is inapposite because Leykiss statements
fell within categories of speech that are not protected by the
First Amendment. She offers three grounds on which to hold that
the speech was unprotected: (1) it was indecent speech broadcast
when children would likely hear it; (2) it was obscene; and (3)
it constituted fighting words.
For her first argument she relies on the United States
Supreme Courts decision in FCC v. Pacifica Foundation.17 That
decision does not support her claim, however, as it only decided
whether the government has the power to regulate indecent speech
that is broadcast by radio at times when children are likely to
overhear it.18 Pacifica held that indecent speech is not entitled
to absolute constitutional protection and that under limited
circumstances, the Federal Communications Commission may
constitutionally regulate it. The agency may not prohibit the
speech entirely, however; it may only channel the communication.
Thus the speech is unprotected only insofar as it subject to the
agencys time, place, and manner restrictions. The decision is
therefore inapplicable to Carpenters defamation claim.
Carpenters other two arguments also fail. Leykiss
statements, however offensive, do not satisfy the three-pronged
test for obscenity set out in Miller v. California.19 Likewise,
they do not fall within the classic fighting words category of
unprotected speech. The fighting words exception is limited to
words that by their very utterance . . . tend to incite an
immediate breach of the peace.20 Leykiss statements, uttered over
the radio, were unlikely to achieve an immediate breach of the
peace. They may have encouraged listeners to retaliate against
Carpenter, presumably by telephoning or faxing her at home. An
exhortation for action of that sort is relevant to Carpenters
IIED claim. See Part III.C. But his words are insufficient to
be the basis for a defamation claim based on a theory that Leykis
uttered fighting words.
B. The Superior Court Did Not Err in Granting Summary
Judgment Against Carpenter on Her False Light Invasion
of Privacy Claim.
Carpenter argues that the superior court erred in
granting summary judgment to Leykis on her claim of false light
invasion of privacy. A false light invasion of privacy claim
arises when the defendant publicizes a matter that places the
plaintiff before the public in a false light.21 In many cases,
the publicity is defamatory, although a plaintiff need not show
injury to reputation to prevail on a false light claim.22 An
action for false light invasion of privacy differs from an action
for defamation because a defamation claim redresses damage to
reputation while a false light privacy claim redresses mental
distress from exposure to public view.23 Like defamation
liability, however, false light liability requires at least
knowing or reckless disregard of the falsity of the assertion of
fact.24 Because opinions cannot be proved false, they cannot give
rise to false light liability.25 Carpenters false light invasion
of privacy claim relies on the same statements that formed the
basis for her defamation claim. It therefore fails. As we
explained in Part III.A, Leykiss statements purportedly
describing Carpenter were opinions, not false statements of fact.
C. Jury Instruction No. 17 Potentially Prevented the Jury
from Considering Carpenters IIED Claim Against Leykis.
1. The claimed error
Instruction No. 18 expressly instructed the jury on the
elements of Carpenters intentional infliction of emotional
distress (IIED) claim. But Carpenter argues that Instruction No.
17 erroneously restricted the jurys consideration of her IIED
claim.
The text of Instruction No. 17 effectively prevented
the jury from finding Leykis liable for words spoken to or about
Carpenter unless the speech fell within either one of two narrow
exceptions. Carpenter asserts that it was error to give that
instruction because she was not a public figure and because even
if Leykiss speech was entitled to some protection, the
instruction erroneously stated the law as to her IIED claim.26
Carpenter contends that the jury must or could have
applied Instruction No. 17 to her IIED claim, and that Special
Interrogatory 1 also misdirected the jury as to that claim. That
special interrogatory asked the jury to determine whether Leykiss
remarks about Carpenter were intended to provoke a hostile
reaction under circumstances where a clear and present danger of
immediate violence existed. Because the jury answered No to that
interrogatory, Carpenter reasons that Instruction No. 17 and
Special Interrogatory 1 must have caused the jury to believe that
it had no choice but to conclude that nothing Leykis said about
Carpenter could support her IIED claim. She concludes that the
instructional error was prejudicial and that a properly
instructed jury could have found that Leykiss outrageous conduct
caused Carpenter severe emotional distress. That outcome is
entirely likely, she reasons, given that in answering Special
Verdict Form Question (11), the jury found Leykiss conduct to be
outrageous.
Leykis argues that Instruction No. 17 correctly stated
the law and did not prejudice the jurys consideration of the IIED
claim. Citing Alaska cases,27 he argues that speech may be
punished in only the most limited circumstances, and, citing
Hustler Magazine, Inc. v. Falwell,28 he argues that the First
Amendment forecloses an IIED claim that is based on the same
facts as a defective defamation claim. He contends that because
Carpenter claimed emotional distress inflicted through media
speech, it was appropriate to instruct the jury on constitutional
speech protections.
The propriety of jury instructions generally raises
questions of law that are subject to the independent judgment
standard of review.29 Jury instructions to which timely
objections were made are therefore reviewed de novo.30 Special
verdict forms are subject to the same standard of review as other
jury instructions.31 Errors in jury instructions are not grounds
for reversal unless the errors are prejudicial.32 An erroneous
instruction is prejudicial if it can be said that the verdict may
have been different had the instruction not been given.33
2. The jury instructions, special interrogatory, and
special verdict form
This claim of error requires us to consider the effect
of Instruction No. 17, Instruction No. 18, Special Interrogatory
1, and parts of the special verdict form.
Instruction No. 17 told the jury it could not consider
as a basis for liability words spoken to or about Carpenter
unless the speech was unprotected for either of two reasons. It
stated:
The law protects most speech. By example,
statements of opinion, even if insulting or
distasteful, are generally protected speech.
It is only in limited circumstances that
speech can be punished or be the basis of
liability for damages. Therefore, you shall
not consider words spoken to or about Karen
Carpenter unless you find that the speech is
not protected because of either of the
following reasons:
(1) Speech that is intended to provoke a
hostile reaction under circumstances where a
clear and present danger of immediate
violence exists is not protected speech.
(2) Publication of private factual
information about an individual with
knowledge or in reckless disregard that
disclosure of the factual information would
be highly offensive to a person of ordinary
sensibilities is not protected speech. A
fact is private if (a) it is not known to the
public, that is, not a public record and not
information legally available to the public
or the media; and (b) the private fact is of
a kind that, if publicized, would be highly
offensive to a reasonable person; and (c) the
private fact is not newsworthy, that is, of
legitimate concern or interest to the public
or an appreciable percentage of the public.
Instruction No. 18 explained the elements of Carpenters
IIED claim:
Karen Carpenter claims that Tom Leykis or
Westwood One or its employees or agents
intentionally inflicted emotional distress on
her by virtue of a radio broadcast on July
24, 1998.
For Karen Carpenter to recover for this claim
of intentional infliction of emotional
distress, you must decide that it is more
likely true than not true that Tom Leykis[s]
or Westwood One[s] or its employees conduct
was extreme and outrageous and that he/they
intentionally or recklessly caused Karen
Carpenter severe emotional distress.
I will now define extreme and outrageous
conduct, intentional, reckless, legal cause,
and severe emotional distress for you.
There is no contention that this instruction was erroneous
(although Leykis and Westwood One argue here, as they did below,
that Carpenters IIED claim should not have been submitted to the
jury).
The superior court gave the jury special
interrogatories with an instruction that it was to answer them
before turning to the special verdict form. Special
Interrogatory 1 asked: Did Tom Leykis engage in speech related to
Karen Carpenter that was intended to provoke a hostile reaction
under circumstances where a clear and present danger of immediate
violence existed? The jury answered No.
The court also gave the jury a special verdict form
asking specific questions, including this question: (1) Did Tom
Leykis, by extreme and outrageous conduct, intentionally or
recklessly inflict severe emotional distress on plaintiff Karen
Carpenter? The jury answered No. The special verdict form also
asked whether the jury found by clear and convincing evidence
that the conduct of Tom Leykis and/or Westwood One (or its
employees or agents) was outrageous and thus subject to an award
of punitive damages? As to Leykis the jury answered Yes.
3. Distinguishing between Carpenters defamation/false-
light claims and her IIED claims
The question we must decide here is whether, by
prohibiting the jury from basing liability on words spoken to or
about Carpenter unless it found the speech was unprotected for
one of the two specified reasons, Instruction No. 17 may have
prevented the jury from fully considering Carpenters IIED claim.34
The question is important because the conduct that she asserts
was outrageous consists largely of Leykiss conduct in speaking
words to or about Carpenter during the broadcast. The
instructions did not define the phrase words spoken to or about.
The literal and common-sense meaning of that phrase encompasses
all words spoken to Carpenter, and all words spoken about her.
This meaning renders the instruction applicable to all words
Carpenter alleges were actionable. Some of those words described
Carpenter in derogatory and humiliating terms and were central to
the defamation and false-light claims that we held above were
properly dismissed. But other words did not purport to describe
Carpenter. A jury might interpret these other words as having
been intended to invite listeners to contact her and make her
life a living hell. We are concerned here with determining
whether the instruction potentially prevented the jury from
fairly considering whether broadcasting these latter words was
outrageous conduct that could be the basis for IIED liability.
We assume that an IIED claim that turns on the truth or
falsity of speech is subject to the same limitations that protect
speech from claims of defamation. Thus, just as actual malice
must be proved by a public figure who is claiming defamation,
actual malice must also be proved by a public figure who is
claiming IIED based on the same speech that gives rise to a
defamation claim.35 Likewise, we assume that just as actual
malice must be proved by a plaintiff claiming defamation that
arises out of speech on a matter of public concern in Alaska,36
actual malice must be proved by a plaintiff who bases a claim of
IIED on the same speech.37
Carpenter argues that the superior court erroneously
considered her to be a public figure and that Hustler Magazine,
Inc. v. Falwell,38 which applied actual-malice defamation
standards to an IIED claim brought by a public figure,
consequently does not control Carpenters IIED claim. The United
States Supreme Court has identified two bases on which to find
public figure status:
In some instances an individual may achieve
such pervasive fame or notoriety that he
becomes a public figure for all purposes and
in all contexts. More commonly, an
individual voluntarily injects himself or is
drawn into a particular public controversy
and thereby becomes a public figure for a
limited range of issues.[39]
A person in this second category is often referred to as a
limited-purpose public figure.40
We assume that whether Carpenter was a limited purpose
public figure would be important to her IIED claim if that claim,
like her defamation claim, turned on the truth or falsity of
Leykiss words about Carpenter. If the falsity of those words
were a necessary element of her IIED claim, whether she was a
limited purpose public figure would determine whether under
federal law she had to prove actual malice to prevail on her IIED
claim.41 Likewise, if the falsity of those words were a necessary
element of her IIED claim, we assume that Alaska law also would
have required her to prove actual malice if Leykiss on-air
comments to or about her forming the basis of her IIED claim were
about a matter of public concern.42
But because her only viable claim is not based on the
truth or falsity of Leykiss words about Carpenter and is not
based on harm to her reputational interest, we conclude that the
heightened protections due speech about public figures and
matters of public concern do not altogether foreclose Carpenters
IIED claims. We therefore do not need to decide whether
Carpenter was a public figure. In Falwell, the United States
Supreme Court held that the First Amendment affords heightened
protection to speech in the area of public debate about public
figures, regardless of whether the speakers motivation was ill
will, hatred, or mere desire to inflict emotional distress.43
Heightened First Amendment protection does not extend to IIED
claims based on speech that is not about a public figure or about
a matter of public concern.44 We distinguish between speech,
however crude, somehow contributing to the public debate about a
public figure or a matter of public concern or directed at
persuading the ultimate target to change her mind about a matter
of public concern, and speech intended merely to harass or cause
others to harass the target. Speech of the latter sort is not
entitled to First Amendment protection. A defendants conduct in
uttering words is therefore not invariably constitutionally
protected from claims alleging the tort of outrage. Not all
words are entitled to First Amendment protection. Instruction
No. 17 implicitly, but incompletely, recognized the distinction
in telling the jury of two limited examples of unprotected
speech.
Unlike her defamation claim, Carpenters IIED claim was
not dependent on the truth or falsity of Leykiss words. Although
her IIED claim as she presented it was based in part on what
Leykis said in describing her, it was also based on what he
seemed to urge his listeners to do and on related on-air
statements directed at Carpenter that a jury might interpret as
threats to organize an ongoing campaign of harassment against
her. Her defamation and IIED claims both arose out of words
Leykis allegedly spoke (or allegedly permitted others to speak)
during the July 24 broadcast, and Leykiss conduct allegedly
included the act of uttering or condoning those words.45 But the
essence of her defamation claim was the alleged falsity of
Leykiss words purportedly describing Carpenter, whereas the
essence of the viable part of her IIED claim was the alleged
outrageousness of his conduct in provoking his listeners and
inviting them, some of whom, like Carpenter, lived in Juneau, to
harass Carpenter and, with him, make her life a living hell.
This was what the trial court characterized as Leykiss call to
arms. Likewise, Leykiss conduct allegedly included disclosing or
allowing the disclosure or partial disclosure of Carpenters home
telephone and fax numbers to make it easier for audience members
to contact her at home. Leykiss Brief of Appellee recognizes
this distinction between the two claims in stating that her IIED
claim was based on Leykiss conduct: Ms. Carpenters emotional
distress claim was based on the allegation that Mr. Leykis
provoked members of his radio listening audience to harass her
and make her life a living hell, and disclosed her home telephone
and fax numbers to facilitate their doing so.
As we will see in discussing what is to be done on
remand, that does not mean that what Leykis said about her was
totally irrelevant to her IIED claim. But it does mean that it
was essential that the jury be told accurately what consideration
it could give to Leykiss words to or about Carpenter in deciding
her IIED claim.
Such distinctions were drawn appropriately in Esposito-
Hilder v. SFX Broadcasting, Inc.46 A radio station there
conducted an Ugliest Bride contest that disparaged plaintiffs
appearance. The court allowed an IIED claim even though it
recognized that no defamation claim could stand. It also
observed:
We are not unmindful of the constitutional
issues implicated in this case and in our
resolution thereof. In the quest for the
proper accommodation between the right of
redress for infliction of injury and the
freedoms of speech and expression protected
by the 1st Amendment, we have determined that
the States relatively strong interest in
compensating individuals for harm outweighs
the relatively weak 1st Amendment protection
to be accorded defendants. It is elementary
that not all speech or expression is to be
accorded equal 1st Amendment protection; the
most jealously protected speech is that which
advances the free, uninhibited flow of ideas
and opinions on matters of public interest
and concern; that which is addressed to
matters of private concern, or focuses upon
persons who are not public figures, is less
stringently protected [citing Falwell, 485
U.S. 46; Dun & Bradstreet, Inc. v. Greenmoss
Builders, Inc., 472 U.S. 749 (1985); Gertz,
418 U.S. 323]. Moreover, among the forms of
communication, broadcasting enjoys the most
limited 1st Amendment protection [citing FCC
v. Pacifica Found., 438 U.S. 726 (1978)].[47]
Likewise, there was sufficient evidence to permit a
jury to find that Leykiss words in issuing his so-called call-to-
arms departed from the bounds of protected speech. We assume
that a broadcaster seeking to avoid cancellation in a local
market may ridicule local critics, because debate about a shows
cancellation is a matter of public interest and that those sorts
of words are therefore protected at least qualifiedly by the
First Amendment. But Leykis did not stop after speaking words
that ridiculed or humiliated the person he claimed he thought
responsible for the shows cancellation in Juneau. A reasonable
jury could permissibly find that his call-to-arms words were
extreme and outrageous within the meaning of the instruction
defining extreme and outrageous conduct, because it could
permissibly find that he intended those words to provoke
listeners to harass her. We also note that his words were devoid
of any express or implicit message that a jury might deem an
attempt to persuade Carpenter, except perhaps out of fear of
harassment, to withdraw her objections to broadcasting the show
in Juneau.
We are unconvinced that submitting an IIED claim to a
jury in such a case will unduly chill protected speech. To
recover for intentional infliction of emotional distress, an IIED
claimant must prove that there was extreme and outrageous conduct
that intentionally or recklessly inflicted severe emotional
distress.48 As the jury was instructed here, conduct gives rise
to an IIED claim only if it is so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious and utterly intolerable
in a civilized community.49 Therefore, as the jury was also
instructed, mere insults, indignities, threats, annoyances, petty
oppressions or other trivialities cannot form the basis of an
IIED claim.50 We have previously noted, and the jury was
instructed here, that even harmful conduct characterized by
malice is insufficient to make out an IIED claim if the conduct
is not extreme and outrageous.51 An IIED claim is therefore
arguably no easier to prove than a defamation claim, even a
defamation claim that must satisfy the actual malice standard.
In addition, because IIED requires proof of an intentional or
reckless mental state, an IIED plaintiff must show that the
defendant acted in deliberate disregard of a high degree of
probability that the emotional distress will follow.52
IIED claims must also satisfy other hurdles beyond
those applicable to defamation claims. Injury is presumed from
the fact of publication under defamation law.53 In comparison, an
IIED plaintiff must prove that she suffered severe emotional
distress,54 i.e., distress of such substantial quality or enduring
quantity that no reasonable person in a civilized society should
be expected to endure it.55 The requirements for an IIED claim
are therefore inherently protective of most conduct; liability is
allowed only if intentional or reckless conduct is extreme and
outrageous and causes severe emotional distress. Claiming
intentional infliction of emotional distress is consequently not
a functional means of circumventing the restrictions on
defamation claims.56 This is particularly so since those IIED
claims that are mere clones of defamation claims because both
turn on the words falsity will have to satisfy the actual malice
standard if the plaintiff is a public figure or the speech
concerns a matter of public interest.57
Finally, we are also confident that our trial courts
can craft instructions that tell juries considering IIED claims
how to distinguish between speech that can permissibly be the
basis for finding outrageous conduct and speech that is
protected. Even speech that relates to a matter of public
interest loses its protection and can give rise to an IIED claim
if, in addition to meeting the other requirements for an IIED
claim, it is uttered with an intent merely to harass and with no
intent to persuade, inform, or communicate.
So far, we have focused on state law. Because Leykis
claims Carpenter is a limited purpose public figure under federal
law, we must consider whether permitting the IIED claim to go
forward may be contrary to the First Amendment.58 We therefore
consider whether the limitations applicable to Carpenters IIED
claim satisfy federal law.
The dissent characterizes Leykiss speech as opinion
statements. Dissent at 74. Certainly some of Leykiss words
purporting to describe Carpenter consisted of opinion statements.
As we have recognized, those words cannot be the basis for
defamation or IIED claims. But the dissents characterization
fails to recognize that jurors might fairly find that other words
Leykis spoke or allowed to be broadcast were not statements
expressing opinions, but statements intended to harass. As
discussed above, the heightened intent we require here prevents
the IIED claim from chilling protected speech, because we
distinguish unprotected speech from speech expressing opinions
or addressing matters of public concern. Even if the two types
of speech are uttered contemporaneously, permitting a claim as to
the unprotected speech will not chill protected speech. A
speaker is not privileged to speak with an intent to harass even
if she has just commented on important public issues.
Is harassing speech of the kind described above
unprotected under federal law? Four kinds of speech have been
recognized to date by the United States Supreme Court as wholly
unprotected: obscenity,59 fighting words,60 true threats,61 and
words that create a clear and present danger62 of imminent lawless
action.63 Defamatory falsehood is also unprotected as to private
figures, and is only protected as to public figures absent actual
malice.64 Leykiss comments do not fit into any of the first four
categories, nor are they actionable as defamatory. But these
five categories are useful guideposts to mark the boundary
between words that comprise protected speech and words that
comprise unprotected speech. With the possible exception of
obscenity, words falling into one of the five categories are
arguably unprotected speech not because of their informative
content, but because they do more than merely disseminate
information. They instead have an operative effect that would be
actionable, and in some cases criminally punishable, whether that
effect was accomplished by word or deed.
Thus, uttering fighting words has the same impact as
striking the first blow in an affray; uttering true threats is a
form of assault that is purely verbal; and creating a clear and
present danger of imminent lawless action is the verbal form of
starting a riot or insurrection. Defamation requires damage to
anothers reputation, a legally protected interest.65 The tort of
IIED protects ones interest in her physical and psychological
integrity, a different legally protected interest.66
The United States Supreme Court dealt with the issue of
harassment when it upheld an ordinance banning residential
picketing.67 In that case and several others, the Court expressed
a special solicitude for the home, holding that [o]ne important
aspect of residential privacy is protection of the unwilling
listener. Although in many locations, we expect individuals
simply to avoid speech they do not want to hear, [citations
omitted] the home is different.68 The Court concluded, [t]here
simply is no right to force speech into the home of an unwilling
listener.69 Here, Carpenter claimed that her home telephone and
fax numbers were disseminated.70
Decisions of the federal courts of appeals have held or
recognized that telephonic harassment whether effected by the
conduct of making a telephone call with the intent to harass and
hanging up or saying nothing, or by speaking to the victim may
be criminally punished.71 These opinions suggest that a law must
cover both harassing speech and conduct to withstand
constitutional scrutiny. The tort of IIED clearly pertains to
both speech and conduct, and our ruling is consistent with the
D.C. Circuits statement in United States v. Popa, that harassing
speech made with no intent to contribute to the public or
political discourse may be criminally punished.72
We therefore conclude that our holding here is
consistent with current First Amendment precedent.
4. Effect of Instruction No. 17
Instruction No. 18 properly instructed the jury on the
elements of an IIED claim. But the jury was not informed that
Instruction No. 17 did not apply to Carpenters claim that Leykiss
conduct was outrageous, or that in considering the IIED claim the
jury might or should distinguish between his merely derogatory
words about Carpenter and his words that arguably were intended
to invite harassment. In essence Leykis argued that everything
he said was protected speech, and that Special Interrogatory 1
used speech as a synonym for conduct or acts intended to provoke
a hostile reaction. Special Interrogatory 1 similarly treated
the claim of provoking a hostile reaction as falling within
paragraph (1) (the hostile reaction exception) of Instruction
No. 17. Special Interrogatory 2 likewise equated the conduct of
disclosing private factual information with the other exception,
contained in paragraph (2) of Jury Instruction No. 17. Because
the IIED claim arose out of words that Leykis spoke or allowed to
be spoken on the air and because those words were to or about
Carpenter, the jury was unable to consider the IIED claim without
applying Instruction No. 17.
Leykis argues that Instruction No. 17 correctly stated
the law and did not prejudice the jurys consideration of the IIED
claim. We are unconvinced that the jury must have understood
that Instruction No. 17 did not apply to the IIED claim. Given
the breadth of Instruction No. 17, it is probable the jury
thought it did apply to that claim.
We are also unconvinced that Carpenter, to prevail on
her IIED claim, should have been required to prove that Leykiss
speech fell under one of the two categories of unprotected speech
described in Instruction No. 17. Instruction No. 17s hostile
reaction exception restates the classic fighting words exception.73
But conduct consisting of speech can be found to be outrageous if
a jury finds that the speaker intended to harass by provoking a
widespread audience to react with hostility toward the target of
humiliating and demeaning comments. A jury could reasonably
determine that Leykis encouraged his listeners to be angry with
Carpenter and to contact her and harass her. There is no reason
why an IIED plaintiff under such circumstances must prove that
there is in fact a clear and present danger of immediate
violence; so long as Leykis acted with the requisite intent to
harass, it is enough that a reasonable person could think that
his comments were likely to prompt listeners to contact or
communicate with Carpenter in a hostile fashion, thus
accomplishing his objective. In short, the hostile reaction
exception did not accurately describe Carpenters IIED claim, and
made it more difficult for her to prevail on that claim. The
instructions exception for publication of private factual
information was equally inapplicable, and equally potentially
prejudicial.
There is no basis for thinking the verdict would have
been the same if it had been clear to the jury that Carpenters
IIED claim only had to satisfy Instruction No. 18 and did not
also have to satisfy Instruction No. 17, at least as to that part
of the IIED claim based on broadcasting the call to arms. The
evidence fairly described in a manner favoring Carpenter would
have permitted reasonable jurors to find that Leykiss conduct was
extreme and outrageous. In allowing the IIED issue to go to the
jury, the trial court apparently assessed the evidence the same
way, even though the trial court had post-trial qualms about the
claim.
Furthermore, as Carpenter argues, the jurys answers to
the special verdict form may imply that Instruction No. 17 and
Special Interrogatory 1 actually affected the IIED verdict. In
answering Special Verdict Form Question (11), the jury found by
clear and convincing evidence that Leykiss conduct was outrageous
and thus subject to an award of punitive damages. But in
answering Special Verdict Form Question (10) the jury found that
Leykis had no responsibility for the spoliation of the July 24
tape. Taken together, these answers may indicate that the jury
found that Leykiss on-air conduct was outrageous. This in turn
may indicate that the jury rejected Carpenters IIED claim only
because his conduct did not satisfy the immediate violence
element that was discussed in Instruction No. 17, expressly
required by Special Interrogatory 1, and impliedly required by
Special Verdict Form Question (1).
We therefore hold that Instruction No. 17 potentially
prevented the jury from giving fair consideration to Carpenters
IIED claim. Remand for a new trial on the IIED claim is
consequently necessary. The jury on remand should consider
whether Leykiss conduct, when viewed in its entirety: (1) was
extreme and outrageous, (2) was intentional or reckless, and (3)
caused [Carpenter] severe emotional distress.74
5. Instructions on Remand
Conduct in broadcasting the call to arms and
encouraging listeners to take harassing action against Carpenter
was not protected speech and may be the basis for IIED liability.
Nonetheless, some of Leykiss comments about Carpenter and her
actions in trying to have his show taken off the air in Juneau
cannot be the sole basis for her IIED claim. There are two
reasons why: First, the derogatory comments are entitled to some
speech protections because debate about whether a nationally
broadcast radio show should no longer be aired in Juneau is
potentially a matter of public importance in Alaska. Offensive
as the derogatory comments about Carpenter would be to persons of
normal sensibilities, they arguably challenge the credibility of
the person Leykis identified as being responsible for the
cancellation. They attacked the wisdom and need for cancellation
by attacking that person and her values. Under Alaska law,
therefore, they addressed a matter of public interest and are
qualifiedly privileged.75 They consequently cannot themselves be
the sole basis for her IIED claim unless Leykis abused the
privilege.76 Second, to the extent the derogatory words were
arguably germane to the shows cancellation, a topic of public
interest, speaking them cannot be considered outrageous conduct.
But the derogatory comments remain potentially relevant
to Carpenters IIED claim. As to that claim, the jury on remand
may consider how Leykiss derogatory comments bore on whether it
was extreme and outrageous to encourage listeners to contact
Carpenter or harass her. It might think his comments were
intended to incite listeners to act on his arguable invitation to
take harassing action against her and increased the
foreseeability and likelihood that some would do so. In this,
the comments bear on whether Leykis acted with the mental state
required for an IIED claim. Finally, the words may also be
relevant to the question whether Carpenter suffered severe
emotional distress.
Instructions on remand should therefore distinguish
between those aspects of the July 24 broadcast that may not be
the basis for an IIED claim and those that may. We will not try
to draw that distinction here. It is fact-intensive and the
trial court is in the best position to assess the words probative
value and the potential for undue prejudice. Moreover, the
parties have not really tried to distinguish between comments
that might legitimately be the basis for finding outrageous
conduct, comments that may not themselves be the basis for an
IIED claim but may nonetheless be relevant to that claim, and any
comments that the jury cannot be allowed to consider on the issue
of IIED liability. We recognize the potential difficulty of
drawing the line accurately. But we are also confidant the trial
court will be able to make clear to the jury on remand the extent
to which it may or may not consider such comments in deciding the
IIED claim.77
D. The Superior Courts Refusal To Admit into Evidence
Carpenters Compendium of Broadcast Excerpts and
Evidence of Leykiss Salary Was Not an Abuse of
Discretion.
Carpenter argues that the trial court abused its
discretion in refusing to admit into evidence a one-hour
compendium of excerpts from broadcasts of Leykiss show between
May 2000 and August 2001. All of the excerpts in the compendium
were from shows broadcast after the July 24, 1998 program at
issue. The compendium consists of segments from twenty-four
taped broadcasts.
Carpenter contends that the exhibit established that
Leykis intentionally and routinely denigrated and attacked women.
She asserts that the compendium demonstrates that Leykis intended
to inflict emotional distress on Carpenter and that he
intentionally disseminated Carpenters personal information. She
argues that the broadcasts establish Leykiss intent to injure her
by revealing his antipathy toward women and, by extension, her.
The trial court refused to admit the entire compendium.
It ruled that while the compendium might tend to show Leykiss
attitudes toward women, its prejudicial effect outweighed its
probative value.
We review evidentiary rulings for abuse of discretion,
although whether the trial court applied the correct legal
standard presents a question of law that we review de novo.78
Alaska Rule of Evidence 403 permits exclusion of
relevant evidence if its probative value is outweighed by the
danger of unfair prejudice. Evidence that Leykis hated women may
lend support to Carpenters claim that Leykis intentionally or
recklessly caused her to suffer emotional distress, but its
probative value is slight. The prejudicial effect, on the other
hand, is potentially great. As the trial court pointed out, the
compendium included distasteful and offensive remarks that were
likely to prejudice the jury against Leykis, particularly because
it was composed of snippets (as the trial court characterized
them) taken out of context. The court did not preclude Carpenter
from playing particular passages to impeach Leykis if he denied
ever having said particular things or ever having acted in a
particular fashion while broadcasting. We conclude that the
trial court did not abuse its discretion in denying admission of
the entire compendium.
Carpenter also argues that the trial courts refusal to
allow cross-examination of Leykis on the terms and amount of his
annual compensation as host of the show was an abuse of
discretion. The trial court granted Leykiss motion for a
protective order because the evidence was not relevant to the
core issues of the case:
At best, the fact that Mr. Leykis receives
compensation for his work is relevant to show
that he wants to go on making a salary. In
contrast, the Leykis compensation could be
misused or misunderstood by the jury as a
potential yardstick for damages. In this
particular case, there is already risk that
the jury could impose liability based on
their dislike of the content of the radio
show in general as opposed to determining the
narrow liability issues presented. The
probative value of this salary information is
outweighed by the potential for undue
prejudice.
Carpenter has not persuaded us that the trial court abused its
discretion in granting the protective order.
E. The Superior Court Did Not Err in Denying Westwood Ones
Motion for a Directed Verdict on the Spoliation of
Evidence Claim.
The jury found that Westwood One (but not Leykis)
committed the tort of spoliation of evidence by destroying the
tape of the show and awarded Carpenter $5,042 in compensatory
damages and $150,000 in punitive damages against Westwood One.
The act of [s]poliation is the destruction or alteration of
evidence,79 or its intentional concealment . . . until it is
destroyed by natural causes.80 Although this court has not laid
out the exact elements of the spoliation tort, it is clear that a
viable underlying cause of action must accompany a spoliation
claim,81 that a plaintiff must show that the spoliation occurred
with the intent to disrupt [the plaintiffs] prospective civil
action,82 and that the spoliation must have prejudiced the
prosecution of the action.83 Westwood One argues that it should
have received a directed verdict on the spoliation claim because
there was no viable underlying cause of action and because there
was insufficient evidence of intent.
In reviewing a trial courts denial of a motion for
directed verdict, we determine whether the evidence, when viewed
in the light most favorable to the non-moving party, is such that
reasonable persons could not differ in their judgment as to the
facts.84 If there is room for diversity of opinion among
reasonable people, the question is one for the jury. 85
1. The IIED claim was viable.
An action based on the tort of spoliation is meritless
unless it can be shown that a partys underlying cause of action
has been prejudiced by the spoliation. . . . Therefore, in order
for [a plaintiff] to prevail on [her] spoliation claim, [her]
underlying cause of action . . . must be viable.86 We have not
articulated what is required for a cause of action to be
considered viable in this context. Only once have we encountered
the viability element of the claim, in Estate of Day v. Willis.87
We there determined that the underlying claim was not viable
because it relied on a duty that we concluded did not exist.88
Because a jury could reasonably find that the uncontested
evidence of Leykiss conduct satisfies the elements of an IIED
claim, that claim was viable.
Carpenters intentional infliction of emotional distress
claim had three elements. She was required to prove that Leykiss
broadcast (1) was extreme and outrageous, (2) was intentional or
reckless, and (3) caused [Carpenter] severe emotional distress.89
Westwood One challenges only the first element. Leykiss action
was sufficiently outrageous to make out an IIED claim if it was
so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.90
Although mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities cannot be the basis of an IIED
claim,91 a properly instructed jury could find that Leykiss
conduct discussed above in Part III.C was sufficiently outrageous
for IIED liability. Similarly, a jury could find that it was
foreseeable that a citizen, allegedly targeted and humiliated by
Leykis on national radio before admiring listeners who seemed
predictably inflamed by his comments, would suffer emotional
distress upon realizing that Leykis had probably caused
thousands of strangers to loathe her and that some of them might
act on his seeming invitation to harass and confront her.
2. There was sufficient evidence of Westwood Ones
intent to disrupt Carpenters claim.
A reasonable jury could find that Westwood One spoiled
the tape with the intent to disrupt the underlying litigation.92
Attorney Jim Douglass letter to KJNO and Westwood One informed
the company of the potential for legal action. Westwood One was
thereafter on notice of the potential claim.93 If credited, there
was testimony that implied that the tape was handed over to the
legal department. The evidence could therefore establish the
requisite intent.94 It was not error to submit the claim to the
jury.
F. The Punitive Damages Award for the Spoliation Claim Was
Not Excessive.
Westwood One challenges the $150,000 punitive damages
award, claiming it is grossly excessive. We review de novo the
question of whether punitive damages are grossly excessive and
thus unconstitutional under the due process clause of the
Fourteenth Amendment.95
Westwood One argues that the award is outside the vague
boundaries set out by the United States Supreme Court in BMW of
North America, Inc. v. Gore96 and State Farm Mutual Automobile
Insurance Co. v. Campbell.97 These cases hold that a grossly
excessive punitive damages award violates the Due Process Clause.98
Gore provides three guideposts for determining when an award is
unconstitutional: (1) the degree of reprehensibility of the
tortious conduct; (2) the disparity between the harm or potential
harm suffered by [the plaintiff] and [the] punitive damages
award; and (3) the difference between [the punitive damages
award] and the civil penalties authorized or imposed in
comparable cases.99
We do not find that the first factor reprehensibility
is met.100 The next factor is the ratio between the punitive
damages award and the harm caused by the tortious conduct
(generally measured by the compensatory damages awarded). While
the Supreme Court is reluctant to actually draw a line, it has
said that a ratio of four to one is close to the line of
constitutionality.101 The ratio between Carpenters punitive
damages award of $150,000 and her compensatory award of $5,042 is
nearly thirty to one, off the allowable scale. Nonetheless, the
relatively low compensable damages on the spoliation claim would
potentially justify a high ratio.
The third factor is the difference between the punitive
damages award and the civil penalties authorized or imposed in
comparable cases. Carpenter argues that a comparison between the
punitive damages award and the criminal penalty for evidence
tampering under AS 11.56.610(a)(1) supports the constitutionality
of the award. While Westwood One correctly points out that it
probably could not have been convicted of tampering on such
limited evidence of intent, the Supreme Courts comparison between
punitive damages and statutory penalties has not depended on a
finding that the exact conduct subject to punitive damages would
be subject to the other penalties. Instead, the Supreme Court
has considered the penalties imposed in comparable cases.102
Similarly, the Supreme Court in Pacific Mutual Life Insurance Co.
v. Haslip looked to the fines that could be levied for insurance
fraud in general, without considering whether the defendants
particular conduct would warrant such a fine.103 Thus, it is
appropriate to consider the fines for evidence tampering. The
fines can be as much as $1,000,000, a figure well above the
punitive damages award here.104 This factor therefore weighs in
favor of the constitutionality of the award.
Finally, we note that punitive damages may sometimes be
the only appropriate damages recoverable for spoliation,
especially when the jury finds no liability for the underlying
claims. It is difficult to see how spoliation can cause harm
other than by denying the plaintiff the opportunity to fully
prosecute the underlying claims. Compensatory damages cannot
reflect much besides speculation as to how the underlying claims
would have turned out if the evidence had not been spoiled.
Punitive damages, providing retribution and deterrence, are
particularly appropriate for this tort.105 We hold, therefore,
that the punitive damages award for Carpenters spoliation claim
was not excessive.
On remand, Carpenters IIED claim may provide an
independent ground for a punitive damages claim. If punitive
damages are sought on retrial of that claim, any award must not
result in double recovery, i.e., must not twice punish the same
defendant for the same conduct.
G. Alaska Statute 09.17.020(j) Is Constitutional.
Carpenter appeals the superior courts denial of her
motion seeking a declaration that AS 09.17.020(j) is
unconstitutional. Alaska Statute 09.17.020(j) provides:
If a person receives an award of punitive
damages, the court shall require that 50
percent of the award be deposited into the
general fund of the state. This subsection
does not grant the state the right to file or
join a civil action to recover punitive
damages.
We review the issue de novo.106
Carpenter challenges the constitutionality of AS
09.10.020(j) on two grounds. First, she argues that it violates
the separation of powers doctrine. She theorizes that the
legislature exceeds the power granted it under the Alaska
Constitution when it compels a judge to issue a judgment that
contradicts a reasonable jury verdict. She argues that the
content of a final judgment is the exclusive concern of the
courts.
We addressed a similar issue in Evans ex rel. Kutch v.
State, in which we held that the statutory caps on noneconomic
and punitive damages did not amount to a remittitur that violated
the separation of powers doctrine.107 Although the dispositional
opinions separation of powers analysis did not discuss the
validity of the allocation statute, we adopt that analysis today
in rejecting Carpenters separation of powers challenge to AS
09.10.020(j). In Evans, the dispositional opinion reasoned that
because they applied generally to all cases and were not case- or
fact-specific, the damage caps did not amount to a remittitur.108
The dispositional opinion concluded that the damages caps
therefore did not violate the separation of powers, and stated
that the power of the legislature to modify or abolish the common
law necessarily includes the power to set reasonable limits on
recoverable damages in causes of action the legislature chooses
to recognize. 109
Likewise, it is within the legislatures power to
mandate the award of a portion of the punitive damages to the
state. Just as the legislature may require the trial court to
cap the jurys damages awards, it may require the court to
allocate half of the punitive damages award to the state.
Carpenter next argues that AS 09.10.020(j) results in
an unconstitutional taking.110 We rejected an identical argument
in Reust v. Alaska Petroleum Contractors, Inc.111 We there held
that an unlitigated claim does not become property until after it
accrues.112 Because claims are defined by the law that exists when
they accrue, any claim accruing after the August 7, 1997
effective date of AS 09.17.020(j) may constitutionally be limited
by the terms of the statute; here, the claim is limited to one-
half of any punitive damages award.113 We stated in Reust that
parties whose claims accrued after the effective date of the
allocation statute cannot have a reasonable expectation of
receiving more than half of their punitive damages award.114
Carpenters claim accrued on July 24, 1998, nearly a
year after AS 09.17.020(j) became effective. Her claim that the
statute works an unconstitutional taking therefore fails.
H. Pro Rata Attorneys Fees Should Be Deducted from the
States Fifty Percent Share of the Punitive Damages
Award.
Carpenters contingent fee agreement required her to pay
forty percent of her punitive damages award to her attorney. The
state argues that it was error for the superior court to deduct a
pro rata share of Carpenters contingent fee from its portion of
the punitive damages award. The state argues that the language
and legislative history of AS 09.17.020(j) and AS 09.60.080
support its position.115 Alaska Statute 09.60.080 provides:
If an attorney contracts for or collects a
contingency fee in connection with an action
for personal injury, death, or property
damage and the damages awarded by a court or
jury include an award of punitive damages,
the contingent fee due the attorney shall be
calculated before that portion of punitive
damages due to the state under AS
09.17.020(j) has been deducted from the total
award of damages.
The state raises arguments similar to those it raised
in Anderson II. In that case, we unanimously held that the
statute requires that the superior court deduct pro rata the
contingent fee from the states portion of the punitive damages
award.116 Although section .080 only directly addresses how fees
are to be calculated, we construed the language of the section to
impl[y] that half of the calculated fee should be deducted from
the portion of damages due the state.117 We explained:
Section .080 clearly is concerned with when
the calculation of fees takes place, yet
timing of the calculation is unimportant
unless a deduction is meant to occur.
Otherwise calculation of fees would be just
as appropriate after the states portion was
deducted, so long as it was clear that the
fees should be based on the entirety of the
award. Further, if section .080 means that
no deduction for fees can be taken from the
states share, its purpose would be to ensure
full compensation of plaintiffs attorneys
while imposing a double burden on their
clients. This seems like an unlikely
objective.[118]
We determined that the statutes legislative history
supported our interpretation.119 An early version of the bill that
became the Tort Reform Act of 1997 provided that the contingent
fee due the attorney shall be calculated after that portion of
punitive damages due the state under [AS 09.17.020(j)] has been
deducted from the total award of damages.120 We concluded that a
later amendment that changed the word after to before was meant
to require the state to pay its share of a plaintiffs attorneys
contingent fee.121
The state also argues that the House of Representatives
rejection of a proposed amendment that would have allocated
punitive damages to the state only after payment of all costs and
fees incurred in obtaining the award supports its position. It
points to House Majority Leader Brian Porters statement that the
amendment was determined to be unacceptable in the main, because
[its] punitive damages section . . . removed the disincentive to
settle found in returning a full 50% of these fines to the state.122
We addressed that argument in Anderson II, explaining that it was
more likely that the reference to a full fifty percent of these
fines . . . is to the fact that under the amendment the state
would only receive a graduated percentage of punitive damages
awards, up to forty percent for awards greater than $10 million,
rather than fifty percent of any punitive damages award no matter
what its size.123 Because Anderson II squarely resolved the issue,
we conclude that the superior court did not err by deducting a
pro rata share of Carpenters contingent fee from the states
portion of Carpenters punitive damages award.
I. Pro Rata Costs Incurred in Obtaining the Punitive
Damages Award Should Be Deducted from the States Fifty
Percent Share.
The superior court declined to deduct a pro rata share
of Carpenters costs from the states portion of her punitive
damages award. Carpenter argues that the phrase contingent fee
as used in AS 09.60.080 includes costs and expenses. The state
challenges Carpenters interpretation of the statute, pointing to
a rejected amendment package to the bill that became the Tort
Reform Act of 1997. The amendment explicitly required payment of
both costs and fees before calculation of the states share of the
award. It provided: All amounts to State, after payment of all
costs and fees incurred in connection with securing the award.124
The state argues that the deletion of any reference to costs in
the final version of the bill implies that only fees are deducted
from the states share.125 As Anderson II noted, however, the
amendment package covered many subjects,126 precluding us from
inferring that the deletion indicates a legislative intention to
prevent pro rata deduction of costs from the states portion of
punitive damages.
Because the statutory language is ambiguous, we apply
equitable considerations to determine whether to apply a pro rata
deduction of costs to the states share of the award.127 If the
state is not required to pay its pro rata share of the litigation
costs, it effectively receives the windfall of a judgment in its
favor without incurring any costs. In order to ensure that the
state is not unjustly enriched at the expense of litigants, we
read AS 09.60.080 to require a pro rata deduction of costs from
the states share of the punitive damages award.
The superior court found that it was unable to
differentiate between Carpenters costs attributable to her
punitive damages award and those costs associated with her
unsuccessful claims. If Carpenter prevails on her IIED claim on
remand and additional punitive damages are awarded, the superior
court may find it easier to make that determination. If not, the
court should apply to Carpenters total costs application a
straight ratio of Carpenters compensatory damages award to her
punitive damages award.
J. Whether the Superior Court Abused Its Discretion in
Refusing To Deem Leykis a Prevailing Party Is Not Yet
Determinable.
Under Alaska Rule of Civil Procedure 82(a), a
prevailing party shall be awarded attorneys fees. The superior
court ordered the parties to bear their own costs and fees.
Leykis appeals this order, arguing that because he was not found
liable for any claim, he was a prevailing party and should
receive a fee award. We need not decide this issue now, given
the possibility Leykis will be found liable on remand for
intentional infliction of emotional distress. If he is found
liable, he will not be a prevailing party. If he is not found
liable, the trial court should award attorneys fees to Leykis if
it can distinguish the fees incurred in defending Leykis from
those incurred in defending Westwood One.
IV. CONCLUSION
For these reasons, we AFFIRM the grant of summary
judgment dismissing Carpenters defamation and false light
invasion of privacy claims. We also AFFIRM the evidentiary
rulings and the ruling on Carpenters proposed Jury Instruction
No. 15. We REMAND Carpenters IIED claim for a new trial. On
remand, the jury must be instructed to consider whether Leykiss
statements, when examined in their entirety, satisfy the elements
of an IIED claim. The trial court should give other instructions
to inform the jury how to distinguish between speech-based
conduct that could be found to be sufficiently outrageous for
IIED liability, and speech that is qualifiedly privileged but
that might also be relevant to the IIED claim.
We AFFIRM the denial of Leykiss motion for a directed
verdict on Carpenters spoliation claim. We also AFFIRM the
constitutionality of both the punitive damages award and AS
09.17.020(j), and AFFIRM the deduction of a pro rata share of
Carpenters attorneys fees from the states portion of the punitive
damages award, but REMAND for a pro rata reduction of costs from
the states portion of the award.
Carpeneti, J., concurring.
In arguing that the jury was misinstructed on her IIED
claim, Karen Carpenter argues that Instruction No. 17 was
erroneous because the superior court mistakenly assumed that
Carpenter was a public figure. I agree, and would resolve this
issue on that basis.
Whether Instruction No. 17 was erroneous depends on
whether Carpenter was a public figure. Relying in part on
Hustler Magazine, Inc. v. Falwell,1 the trial court instructed
the jury to disregard statements of opinion and to apply the
standard of liability applied to a defamation claim brought by a
public figure. But if Carpenter is not a public figure, Falwell,
which applied defamation standards to an IIED claim brought by a
public figure, does not control Carpenters IIED claim.2
The Supreme Court has identified two bases on which to
ground public figure status:
In some instances an individual may achieve
such pervasive fame or notoriety that he
becomes a public figure for all purposes and
in all contexts. More commonly, an
individual voluntarily injects himself or is
drawn into a particular public controversy
and thereby becomes a public figure for a
limited range of issues.[3]
A person in this second category is often referred to
as a limited-purpose public figure.4 To find public figure
status on this basis, a court must conduct a two-part inquiry:
first, whether there is a public controversy; and second, whether
the nature and extent of the persons participation in the
controversy were sufficient to make him or her a public figure
within that controversy.5 The superior court, pointing to
Carpenters contacts with government officials and KJNO
advertisers, reasoned that Carpenter fit within [the] definition
of limited public figure, at least to the extent of her efforts
to remove the Tom Leykis Show from the air. The dissent also
takes this approach. Although the topic of whether the show
should be canceled in Juneau arguably generated a public
controversy,6 I do not believe that Carpenters participation was
sufficient to confer limited-purpose public figure status on her.
Based on its analysis of the Supreme Courts precedents,
the United States Court of Appeals for the Second Circuit has
adopted the following test to determine whether a defendant has
established that a plaintiff is a limited-purpose public figure:
A defendant must show the plaintiff has: (1)
successfully invited public attention to his
views in an effort to influence others prior
to the incident that is the subject of
litigation; (2) voluntarily injected himself
into a public controversy related to the
subject of the litigation; (3) assumed a
position of prominence in the public
controversy; and (4) maintained regular and
continuing access to the media.[7]
I believe that this test appropriately states what a defendant
must prove, and that it accurately reflects the Supreme Courts
analysis in this area. I would adopt it here.
I assume that Carpenter voluntarily injected herself
into the topic of whether the show should be aired in Juneau,
although there is little evidence that this question was public
before July 24. KJNO had already received some complaints and
some advertisers had already cancelled, but its manager regarded
the stations decision whether to stop broadcasting the show as a
private thing.
Therefore, I have doubts that there was a public
controversy. Assuming, however, that Leykis satisfied the second
element, inquiry on whether Leykis established that Carpenters
conduct satisfied the tests first, third, and fourth elements
leads to the conclusion that she was not a public figure.
Carpenter testified that after hearing the Tom Leykis
Show for the first time on July 20, she discussed the program
with about five friends and associates. She contacted a woman
named Lorene Kappler who was trying to get the Tom Leykis show
taken off the air and asked Kappler what she could do to help.
Kappler said she would send a letter to KJNO and asked Carpenter
to do so as well. They also discussed several other ideas during
what Kappler estimated to be a half-dozen telephone
conversations. Carpenter never actually met Kappler.
The next day, July 21, Carpenter left messages for
three City and Borough of Juneau assembly members. Two members
never returned her calls; she actually spoke to only one.
Carpenter related her concerns to that member, inquired whether
Juneau had any decency ordinances, and asked for advice on how to
handle the situation. That member checked with the city attorney
and then informed Carpenter that Juneau had no decency
ordinances; she suggested that Carpenter contact the radio
stations advertisers.
Carpenter also called the governors office on July 21,
but testified that she wasnt specific about what [she] wanted
when [she] called them. She recalled that she was simply trying
to see if there were any decency laws regarding broadcasting.
She received no response. Carpenter also contacted the
congressional office in Juneau in an attempt to gather
information about any federal decency laws, but apparently did
not request assistance in getting the show taken off the air.
Carpenter testified that on July 22 she contacted three
or four advertisers and asked them if they knew their ads were
being run during the Tom Leykis Show and whether they wanted
their advertising dollars to support the content of the show. On
the same day she also faxed her complaint letter to KJNO.
Carpenter testified that she was unaware that, as required by
federal regulations, the letter would be placed in the stations
public file.8 She did not write directly to Westwood One or the
Tom Leykis Show and did not intend her letter to be forwarded;
she thought it was a local issue.
Carpenter testified that she did nothing related to The
Tom Leykis Show on July 23.
KJNOs last broadcast of the program was on July 24.
Carpenter testified that she probably spent a total of
six hours on the issue, and spent most of that time talking with
Kappler. The KJNO station manager agreed at his deposition, in a
passage read at trial, that nothing in Carpenters letter to the
station indicated to him she was a public person rather than a
private person expressing her personal point of view.
Before the July 24 broadcast, Carpenter did not write
letters about the show to the editor of the local newspaper. She
did not appear on television or radio. She did not organize or
attend community meetings on the subject. She did not picket the
station. In other words, Carpenter did not do any of the things
that courts in other jurisdictions have found significant in
concluding that a plaintiff invited the publics attention to his
or her views.9 Aside from discussions with Kappler, friends, and
associates, and a handful of telephone calls to local, state, and
federal governmental offices, there was no evidence that
Carpenter communicated with anyone other than private individuals
specifically associated with airing the Tom Leykis Show on KJNO
(i.e., some advertisers and the station itself).10 On these
facts, I would conclude that Carpenter did not invite[] public
attention to her views.
I also conclude that the evidence did not establish
that Carpenter assumed a position of prominence through her
participation in the controversy. Steve Rhyner, the manager of
KJNO, testified that Carpenter was not the only listener who
complained. He testified that major advertisers were cancelling
from the show before Carpenter became involved. [T]he straw that
broke the camels back, according to Rhyner, was one particular
Leykis show that Rhyner did not care for personally. Rhyner then
made the final decision to cancel the show. Carpenter was
therefore one of several people concerned about the content of
the show and there was nothing especially noteworthy about her
participation.11
Finally, there is no evidence that Carpenter had or
exercised any access to the media, much less regular and
continuing access. The fact that Leykis read Carpenters letter
on the air during the July 24 broadcast does not change my
conclusion, because those charged with defamation cannot, by
their own conduct, create their own defense by making the
claimant a public figure.12
Because Carpenter did not engage the publics attention
and did not assume special prominence in the resolution of the
controversy over the Tom Leykis Show, I would hold that she was
not a public figure.13
As a private figure, Carpenter is entitled to greater
protection from hurtful speech.14 In Gertz, the Supreme Court,
addressing a defamation claim brought by a private figure,
explained:
Public officials and public figures usually
enjoy significantly greater access to the
channels of effective communication and hence
have a more realistic opportunity to
counteract false statements th[a]n private
individuals normally enjoy. Private
individuals are therefore more vulnerable to
injury, and the state interest in protecting
them is correspondingly greater.[15]
The Court also reasoned that private figures deserve
protection more than public figures because the private
individual has not voluntarily become involved in a public
controversy; he has not intentionally exposed himself to
increased risk of injury.16 Where private figures are concerned,
a different balance is struck between First Amendment concerns
and the states interest in allowing individuals to seek
compensation for injury to reputation.17 In such cases, the
state has a strong and legitimate interest in protecting private
individuals.18 This interest, and the justifications for
distinguishing between defamation claims brought by private and
public figures, apply with equal force to IIED claims involving
speech.
In Hustler Magazine, Inc. v. Falwell, the Supreme Court
applied defamation standards to an IIED claim brought by a public
figure.19 The Court held that the First Amendment limits an IIED
action involving speech directed toward a public figure to the
same extent that it would limit a defamation action based on the
same speech.20 That is, speech that is protected for purposes of
a defamation claim because it is opinion, or because it is a true
statement of fact, or because it was false but made without
actual malice, may not serve as the basis for an IIED claim
brought by a public figure. Falwell by its terms governs only
public figure cases.21 Because I believe that the states
interest in protecting private individuals from the intentional
infliction of emotional distress outweighs the First Amendment
interest in speech on private matters concerning private
individuals, I would decline to extend Falwell to IIED claims
brought by private figures such as Carpenter.
The state has a strong and legitimate interest in
protecting private individuals from unprovoked verbal attacks.
Private figures like Carpenter are both less equipped to defend
themselves against attack and more worthy of protection than are
public figures who run the risk of closer public scrutiny, but
enjoy significantly greater access to the channels of effective
communication.22 Although Carpenter voluntarily participated in
the controversy over the shows cancellation, the limited and
discrete nature of her participation did not warrant the degree
of exposure she received.
Application of defamation standards to the IIED claims
of private figures exposes to retaliation any private individual
exercising her own free speech rights to complain about media
program content. In such circumstances, no one could ever safely
complain about the media without risking public attack. It would
chill listeners desire to voice their opinions. This result is
inconsistent with the value placed on listener input by the FCC
regulations as well as the values represented by the First
Amendment.23
Finally, the statements that allegedly inflicted
emotional distress on Carpenter were not fairly a part of any
public issue. Neither Carpenters sex life nor her contact
information was a matter of widespread public interest. Leykiss
remarks generally constituted personal insults and jabs at
Carpenters alleged sexual proclivities; they were not the sort of
speech that encourages the free and robust debate of public
issues.24 Protection of personal insults or offensive parodies
targeted at public figures is necessary to ensure uninhibited
public debate.25 But protection of insults and threats directed
at private figures is not necessary to give adequate breathing
space26 to the freedoms protected by the First Amendment.
For these reasons, I would conclude that Instruction
No. 17 misstated the applicable law. I would remand for retrial
of the IIED issue without affording Leykis the protection of the
ruling that Carpenter is a public figure.
BRYNER, Chief Justice, with whom CARPENETI, Justice, joins,
dissenting in part.
For the reasons set out in my dissenting opinion in
Evans ex rel. Kutch v. State,1 I disagree with the parts of
todays opinion that uphold the constitutionality of Alaskas non-
economic damages cap and punitive-damages forfeiture provisions.
In all other respects I agree with and join in the opinion.
FABE, Justice, dissenting.
I. Introduction
I cannot agree with the courts conclusion that Leykiss
statements, uttered during a national broadcast and discussing a
public figure and a public issue, are unprotected speech. Because
I disagree with the courts conclusion that the statements Leykis
made during his broadcast are not protected speech, I conclude
that the trial courts instructions did not prevent the jury from
fully considering Carpenters intentional infliction of emotional
distress claim.
In my view, the record does not support the courts
conclusion based largely on seven words that Leykis issued a
call to arms inviting listeners to harass Carpenter. Even a
cursory examination of the statements within the context of the
broadcast reveals that the call to arms was nothing more than the
sort of hyperbole and rhetoric that is typical of debate about
public figures and matters of public concern in this day and age.
Moreover, the trial court recognized the controlling
precedent for such statements the United States Supreme Courts
holding in Hustler Magazine, Inc. v. Falwell that public figures
may not recover for IIED without proving false statements of fact
made with actual malice1 and properly instructed the jury that
Carpenter could not recover from Leykis unless the statements
were unprotected for another reason.2 Yet, without upsetting the
trial courts finding that Carpenter was a public figure,3 the
court today concludes that Leykis may be subject to liability for
intentional infliction of emotional distress for statements
directed at Carpenter during a heated discussion of an issue at
the heart of First Amendment protections. Where, as here, an
IIED claim is based on speech directed at a public figure and on
a matter of public concern, declining to limit IIED liability
threatens to erode the breathing space that robust political
dialogue requires.
II. Leykis Did Not Issue a Call to Arms.
I disagree with the factual conclusions upon which the
courts opinion rests. I do not agree that the record supports
the conclusion that Leykis issued a call to arms intended to
provoke listeners to harass Carpenter or the conclusion that
Leykiss words were devoid of any attempt to persuade.4
Examination of Leykiss statements within the overall context of
the broadcast reveals that the statements at issue focused
directly on the issue of public concern namely, the shows
cancellation. To the extent that his statements encouraged
listeners to do anything, it was to persuade Carpenter, a public
figure, to change her mind by demonstrating that she held the
minority view and by suggesting alternate routes to address her
concerns.
The court does not sufficiently identify and analyze
the basis for its conclusion that Leykis issued a call to arms.
Unable to point to any statements made by Leykis that overtly
encouraged listeners to harass Carpenter, the court patches
together two exchanges separated by over an hour in the
broadcast. The alleged call to arms apparently began when a male
caller reported Carpenters phone number, which was partially
blocked out, and her fax number. The caller stated simply that I
think everybody should give her a little piece of . . . our
minds. Leykis responded to the caller not with an exhortation
that listeners use the number to harass Carpenter, but with a
statement about censorship:
Well, you know, again heres one person trying
to decide for an entire city what you ought
to be able to listen to. And, you know,
again, you have an off button; you have a
station changer button, a tuner. You can get
away from the show if you dont want to hear
it. But, no, its not that she doesnt want to
hear it. She doesnt want you to hear it.
After further exchange and another statement by Leykis
that its a shame when the minority can decide what the majority
are going to hear, the caller repeated his hope that people would
call Carpenter and send her faxes. Leykis responded not by
agreeing or suggesting that listeners should harass Carpenter,
but by suggesting that the listener might also contact that fine
church in your community that got together to try to do us in.
In so doing, Leykis redirected the listeners focus to other
proponents of the shows cancellation.5
Leykiss response to the callers publication of
Carpenters numbers did not include any suggestion that listeners
harass Carpenter or make her life a living hell. Indeed, Leykis
himself did not directly urge listeners to contact Carpenter for
any reason whatsoever. He made no statement to Carpenter that
she should expect such treatment. Instead, his speech was
directed at the issue of public concern the cancellation of his
show due to what he perceived to be a minoritys wishes. Even if
Leykiss exchange with the listener could be reasonably construed
as actively endorsing some sort of contact with Carpenter, his
statements about censorship and contacting other censors suggest
he intended to foster political debate rather than encourage
personal harassment. Such an exchange is no less protected than
a radio shows broadcast of a politicians publicly listed fax
number, with an exhortation that listeners contact the politician
to express their views on an issue of public concern.
In recognition that the broadcast of Carpenters fax
number alone is not sufficient, the court also relies on a
statement by Leykis that appears to have occurred over an hour
after the caller reported Carpenters fax number. In this second
statement, Leykis said to a female caller from Juneau: Well, we
hate to lose you, but like I say, stay tuned, cause were going to
get back on in Juneau. He later continued: And were going to
make that womans life a living hell.6 If Leykis intended this
statement to encourage listeners to send harassing faxes to
Carpenter, common sense suggests that he would have repeated the
fax number instead of assuming that listeners had written down
the contact information over an hour earlier. But Leykis did not
repeat Carpenters fax number. He did not propose that listeners
make Carpenters life hell by contacting her, nor did he make
statements encouraging them to harass Carpenter. Read fairly and
in context, the statement merely reflects Leykiss intent to get
back on the air in Juneau and his opinion and commentary that, in
so doing, he would make Carpenters life miserable.
The notion that Leykis exhorted viewers to harass
Carpenter is further undermined by the reaction of listeners.
Contrary to the onslaught of harassing faxes that one might
expect if Leykis incited his national audience to make Carpenters
life a living hell, Carpenter testified that she received one
phone message7 and several faxes. Carpenter testified that the
faxes were dealing with the show being taken off the air.
Indeed, the faxes submitted as exhibits focused on the
discontinuation of the shows broadcast.8 While listeners actions
in response to the broadcast do not conclusively prove the
reasonable interpretation of Leykiss comments, the faxes support
a conclusion that Leykis did not encourage listeners to harass
Carpenter and that listeners did not interpret his statements
that way. Moreover, even if he did encourage listeners to
contact Carpenter about the issue of public concern the shows
cancellation his actions fall far short of a call to arms
exhorting listeners to violate the law to harass Carpenter. In
sum, this patchwork of statements cited by the court as
supporting a call to arms represents nothing more than rhetoric
addressing a public figure and an issue of public concern.
The record demonstrates the fallibility of the courts
presumption that we can meaningfully distinguish between
statements intended to contribute to debate and those intended to
harass. It is precisely because of the danger of courts
attempting to draw such fine lines that this court and the United
States Supreme Court have extended protection to speech directed
at public figures and matters of public concern.
III. The First Amendment Protects Leykiss Statements.
The courts opinion today is wholly inconsistent with
the United States Supreme Courts holding in Hustler Magazine,
Inc. v. Falwell that public figures may not recover on claims of
IIED without a showing of false statements of fact made with
actual malice.9
As the court construes it, Carpenters IIED claim is not
based on any statement of fact, false or otherwise. Instead,
while conceding that Leykis did not make statements that
constitute incitement,10 the court concludes that his statements
provoking his listeners and inviting them . . . to harass
Carpenter can be the basis for liability.11 This conclusion
violates both the holding and the rationale of Falwell.
In Falwell, the Supreme Court noted that in the world
of debate about public affairs, many things done with motives
that are less than admirable are protected by the First
Amendment.12 The Court reasoned that while . . . a bad motive
may be deemed controlling for purposes of tort liability in other
areas of the law, we think the First Amendment prohibits such a
result in the area of public debate about public figures.13 As a
result, the Supreme Court held that public figures cannot recover
for IIED without showing a false statement of fact made with
malice.14
As the Supreme Court noted in Falwell, [a]t the heart
of the First Amendment is the recognition of the fundamental
importance of the free flow of ideas and opinions on matters of
public interest and concern.15 The Supreme Court went on to
explain the importance of protecting speech critical of public
figures:
We have therefore been particularly vigilant
to ensure that individual expressions of
ideas remain free from governmentally imposed
sanctions. The First Amendment recognizes no
such thing as a false idea. . . .
The sort of robust political debate
encouraged by the First Amendment is bound to
produce speech that is critical of those who
hold public office or those public figures
who are intimately involved in the resolution
of important public questions or, by reason
of their fame, shape events in areas of
concern to society at large. . . . Such
criticism, inevitably, will not always be
reasoned or moderate; public figures as well
as public officials will be subject to
vehement, caustic, and sometimes unpleasantly
sharp attacks.[16]
As explained above, Carpenter, a public figure, bases
her IIED claim on rhetoric spoken by Leykis during his
discussions of Carpenters efforts to have his show cancelled.
Falwell makes clear that such opinion statements cannot be the
basis for an IIED claim.
To find error in the trial courts instruction, the
court attempts to limit Falwell today on two different grounds.
First, without citing any authority from any court, the court
appears to limit Falwell by reading its constitutional
protections as inapplicable to statements that are neither true
nor false.17 However, this reading cannot be correct. Falwell
is clearly intended to protect opinion statements about public
figures and matters of public concern. And the very definition
of an opinion statement is that its accuracy cannot be
established. By attempting to distinguish this case on the
grounds that Leykiss statement can be neither true nor false, the
court exposes all opinion statements directed at public figures
to IIED liability. This is not only clearly contrary to Falwell
but substantially eviscerates the protections it extended.
The court also tries to limit Falwell by declaring that
its protection applies only to speech about public figures.18
But the First Amendments robust protections for debate in the
public realm simply cannot turn on such an amorphous distinction.
Moreover, I cannot conclude that the statements at issue made
during a national broadcast were not about Carpenter. Indeed,
Leykiss statement that his return to the air would make
Carpenters life a living hell is undeniably about Carpenter and
her reaction to his show. The concern that animated the Courts
holding in Falwell the need to protect heated rhetoric directed
at public figures and issues of public concern applies
regardless of how a plaintiff chooses to package her claim and
regardless of whether a statement is about a public figure or to
a public figure.19 Here, Leykiss words, on a matter of public
concern and regarding a public figure, reflect his opinions and
his attempts to persuade his audience of an injustice. Certainly
Leykiss remarks about Carpenter were crass, mean, and utterly
repugnant. And they could be construed as endorsing listener
contact with Carpenter to express outrage that her actions had
caused his show to be cancelled in Juneau. But such incitement
to action, petition, or protest on matters of public concern and
directed at public figures lies at the core of the sort of speech
protected by Falwell.20
Statements of opinion on matters of public concern are
often characterized by hyperbole or very crude offensive
method[s] of stating a political opposition.21 And there is no
doubt that Leykiss remarks about Carpenter had an ugly, sexist
tone. Nonetheless, because political debate is the core of First
Amendment protection, the United States Supreme Court has evinced
a strong commitment to ensuring that political hyperbole and
emotionally charged rhetoric can be expressed without fear of
liability or sanction. Time and again, the Supreme Court has
protected such speech. For example, in Watts v. United States,
the United States Supreme Court overturned Wattss conviction
under a statute prohibiting threats to the President of the
United States.22 During a public rally, Watts had stated that he
did not intend to report for the draft and that [i]f they ever
make me carry a rifle the first man I want to get in my sights is
L.B.J.23 The Court upheld the statute, but overturned Wattss
conviction, cautioning that the kind of political hyperbole
indulged in by Watts was not a threat.24 Noting that the
political arena is often vituperative, abusive, and inexact, the
Court reasoned that Wattss only offense was a kind of very crude
offensive method of stating a political opposition.25
Similarly, in NAACP v. Claiborne Hardware Co., the
United States Supreme Court overturned a judgment holding the
Field Secretary of the NAACP liable for the economic consequences
of a boycott of white businesses.26 The state court partially
based its finding of liability on a speech which included a
statement that [i]f we catch any of you going in any of them
racist stores, were gonna break your damn neck.27 The Supreme
Court acknowledged that [i]n the passionate atmosphere in which
the speeches were delivered, they might have been understood as
inviting an unlawful form of discipline or, at least, as
intending to create a fear of violence.28 Nonetheless, the Court
held that the speech was protected, reasoning that [a]n advocate
must be free to stimulate his audience with spontaneous and
emotional appeals for unity and action in a common cause. When
such appeals do not incite lawless action, they must be regarded
as protected speech.29
Despite this command that speech on matters of public
concern be given great latitude, the court decides this case
without citing any explicit statement by Leykis encouraging
listeners to illegally harass Carpenter. Instead, the court
reads between the lines of several statements of opinion
addressing a public figure and a matter of public concern. In so
doing, the court violates the principle that claims involving
such statements should be read against the background of a
profound national commitment to the principle that debate on
public issues should be uninhibited, robust, and wideopen, and
that it may well include vehement, caustic, and sometimes
unpleasantly sharp attacks on government and public officials.30
It is this commitment to robust debate that led the
United States Supreme Court to create heightened standards for
IIED claims by public figures in Falwell. Yet the court today
sees fit to rely solely on the elements of IIED to protect speech
directed at public figures elements the Supreme Court
specifically declared inadequate in Falwell. The United States
Supreme Court explicitly rejected the notion that the requirement
of outrageousness sufficiently protects speech on matters of
public concern, reasoning in Falwell:
Outrageousness in the area of political and
social discourse has an inherent
subjectiveness about it which would allow a
jury to impose liability on the basis of the
jurors tastes or views, or perhaps on the
basis of their dislike of a particular
expression. An outrageousness standard thus
runs afoul of our longstanding refusal to
allow damages to be awarded because the
speech in question may have an adverse
emotional impact on the audience.[31]
The subjective nature of outrageousness, particularly when
applied to rhetoric, eviscerates the protection for speech on
matters of public concern or directed at public figures. Because
liability under a subjective test is unpredictable, it threatens
to curb the use of such persuasive tools as rhetoric and
hyperbole in political speech. It is this premise that the United
States Supreme Court recognized in Falwell, and it is this
premise that creates the need to establish heightened standards
for IIED claims by public figures.
In stark contrast to the heightened standards the
Supreme Court deemed necessary in Falwell, the court today
concludes that the trial court erred by failing to instruct the
jury that a public figure may recover for IIED based on speech
that is intended to harass32 or that is intended to harass by
provoking a widespread audience to react with hostility.33 In so
doing, the court creates a new category of unprotected speech
directed at public figures a new category whose precise
boundaries it does not define.
Unlike the Supreme Courts conscious efforts to
carefully circumscribe liability and protect public debate in
Falwell, Watts, and Claiborne, todays opinion creates a broad and
unbounded new category of unprotected speech directed at public
figures. The court does not clarify how one can determine when
speech is about a public figure, nor does it define harass or
explain how one can distinguish between opinions that harass and
those that do not. Then, despite recognizing the difficulty of
drawing the line accurately, the court expresses confidence in
the jurys ability to do so. In my view, such confidence is
unwarranted. In the area of the First Amendment, this vagueness
is particularly pernicious. In short, the First Amendment
demands more.
Todays holding threatens to further chill speech
because of the courts conclusion that the jury may consider
Leykiss derogatory comments even those that the opinion concedes
are protected speech in evaluating Carpenters IIED claim.34
Protected speech can not serve as the basis for liability,
regardless of whether that speech serves as the sole basis for
liability or is considered as one factor by the jury. The
purpose of protecting speech is to avoid unnecessarily chilling
public debate and dialogue. As the United States Supreme Court
recognized in New York Times v. Sullivan, speakers fearing
potential liability for their statements will tend to make only
statements which steer far wider of the unlawful zone. 35
Coupled with the fear of liability for opinion statements, the
knowledge that even protected speech could be considered by a
jury will chill discussion of matters of public concern.
Allowing the jury to consider protected speech wholly undermines
any protection ostensibly granted that speech.
Moreover, the court advances a startlingly low
threshold for testing whether Leykiss speech can be penalized,
suggesting in its discussion of jury instructions that it is
enough that a reasonable person could think that his comments
were likely to prompt listeners to contact or communicate with
Carpenter in a hostile fashion.36 But encouraging others to
contact or communicate with a public figure, even in a hostile
fashion, lies at the heart of public debate and the democratic
system itself. For example, under this holding, liability could
even be imposed on a broadcast that encouraged listeners to call
a town mayor and express their views on an issue such as taxation
if listeners were encouraged to insult the mayor. Such liability
erodes the breathing space for matters of public concern that the
United States Supreme Court has vigilantly guarded.
The court turns to analogy to justify its holding. To
support its conclusion that Leykiss speech is unprotected, the
court analogizes to decisions upholding ordinances banning
residential picketing.37 The court cites Frisby v. Schultz 38
for the proposition that the home is given special solicitude.
In Frisby, the United States Supreme Court upheld a content-
neutral ordinance which prohibited only focused picketing taking
place in front of a particular residence.39 The Court emphasized
that protestors were not banned from residential neighborhoods
and remained free to go door-to-door, to distribute literature,
and to contact residents by phone.40 But upholding a content-
neutral ordinance banning a narrow type of picketing is a far cry
from penalizing rhetoric because it may have encouraged listeners
to contact a public figure about a matter of public concern. As
a result, Frisby simply does not support a conclusion that Leykis
incited unlawful conduct on the part of his listeners. Even if
he encouraged listeners to blanket Carpenter with objections to
the shows cancellation, Leykiss speech is protected
communication.
Similarly, United States v. Popa,41 relied on by the
court today,42 demonstrates the constitutionally important
difference between unprotected harassment and rhetoric on a
matter of public concern. In Popa, the D.C. Circuit vacated the
conviction of a defendant who had been prosecuted under a statute
making it a crime to make telephone calls without disclosing
[ones] identity and with intent to annoy, abuse, threaten, or
harass any person.43 The defendant had made seven phone calls to
the United States Attorney for the District of Columbia,
including two recorded calls in which he referred to the United
States Attorney as a criminal and a whore, who violated . . . our
rights.44 Noting that the defendant testified that he had called
to complain about having been assaulted by police officers and
the prosecutors conduct, the court reasoned that the statute was
unconstitutional as applied because [p]unishment of those who use
the telephone to communicate a political message did not further
the governments interest in protecting individuals from
noncommunicative uses of the telephone.45 Similarly, the First
Amendment would likely protect a listener who directly contacted
Carpenter to express a view. And, as detailed earlier, Leykis
did not encourage listeners to illegally harass Carpenter by
phone or by fax. At most, he encouraged them to express their
opinions and petition on behalf of the show. As the D.C. Circuit
concluded in Popa, such political communication with a public
figure on a matter of public concern is protected speech.
Moreover, the courts analogy to telephonic harassment
overlooks the fundamental distinction between prohibiting
harassing calls and punishing speech that encouraged others to
make telephone calls. The court does not base its holding on any
conduct by Leykis; he did not telephone or fax Carpenter.
Instead, the courts holding is based on a conclusion that Leykiss
words could be construed to exhort others to telephone or fax
Carpenter. Despite the obvious echoes of incitement that
permeate this line of reasoning, the court makes no argument that
Leykiss actions rose to the level of incitement or that there was
any error in the jurys instruction on incitement.
Today the court overlooks over forty years of United
States Supreme Court precedent dedicated to ensuring adequate
breathing space for speech about public figures and matters of
public concern. It directly contravenes the United States
Supreme Courts command that claims of IIED brought by public
figures must meet the heightened standards of proving false facts
and actual malice.
IV. The Mount Juneau Privilege for Matters of Public Concern
Protects Leykiss Statements.
The courts opinion is also wholly inconsistent with
this courts longstanding policy of protecting speech on matters
of public interest and concern through application of the actual
malice standard. Even if Carpenter were not a public figure, the
Mount Juneau privilege protects Leykiss statements and precludes
liability in the absence of actual malice and a false statement
of fact. As this court recognized in Mount Juneau:
[T]he public figure test is not the only
route to application of the actual malice
standard. We further protect the free
exchange of ideas by applying the actual
malice standard to publications on issues of
public interest and concern, even if the
defamation plaintiff is not a public figure.
. . .[46]
Citing Pearson v. Fairbanks Publishing Co., we
explained the rationale for such a policy as follows:
On the one hand there is the interest in
safeguarding the right to ones reputation.
On the other hand there is the interest in
allowing freedom of debate and expression on
public questions and issues. We believe that
a fair balance of these competing interests
is achieved where the law of defamation
permits one, without liability for damages,
to comment, criticize and pass judgment on
statements made by another on an issue or
matter of public interest, even if such
comment, criticism and judgment involves
misstatements of fact so long as such
misstatements are relevant to the subject
matter spoken or written about by the one
claiming to be defamed and are not shown by
him to have been made with actual malice.[47]
In Gertz v. Robert Welch, Inc., the United States
Supreme Court concluded that although the actual malice standard
was appropriately applied to those who occupy positions of such
pervasive power and influence that they are deemed public figures
for all purposes and to limited-purpose public figures who have
thrust themselves to the forefront of particular public
controversies in order to influence the resolution of the issues
involved, a separate analysis is required with respect to private
individuals.48 The Court held that so long as they do not impose
liability without fault, the States may define for themselves the
appropriate standard of liability for a publisher or broadcaster
of defamatory falsehoods injurious to a private individual.49
In the wake of Gertz, a majority of states have adopted
a negligence standard with respect to defamation claims brought
by private individuals, making it easier for private plaintiffs
to recover in defamation actions.50 This court declined to
follow suit in Mount Juneau, reaffirming its commitment to
freedom of speech and expression on matters of public interest by
adhering to the actual malice standard, even for private
individuals. In Taranto v. North Slope Borough, we recognized a
further extension of this privilege to speech on matters of
public health and safety.51 These cases reflect our consistent
policy of balancing the need to safeguard an individuals
reputation with the need for freedom of debate and expression on
issues of public concern.52
To the extent that the courts opinion can be read to
allow individuals to recover damages under IIED claims for speech
that would otherwise be privileged as speech on a matter of
public interest and concern, I would depart from its reasoning.
Instead, in recognition of the inherent logic of Falwell, and in
respect for the balance this court has consistently struck in
favor of discussion on public issues, I would extend protection
to Leykiss statement under the Mount Juneau privilege. Because I
think it is clear that Leykiss comments related to a matter of
public interest and concern, the Mount Juneau privilege applies,
protecting all statements except false statements of fact made
with malice.
V. Conclusion
Because I disagree that Leykis encouraged his listeners
to harass Carpenter, and because Leykiss speech is protected
opinion speech directed at a public figure and a matter of public
concern, I respectfully dissent from the courts opinion today.
_______________________________
1 47 Code of Federal Regulations 73.1202 (2004) provides
that
All written comments and suggestions received
from the public by licensees of commercial
AM, FM, TV and Class A TV broadcast stations
regarding operation of their station shall be
maintained in the local public inspection
file, unless the letter writer has requested
that the letter not be made public or when
the licensee feels that it should be excluded
from the public inspection file because of
the nature of its content, such as a
defamatory or obscene letter.
Carpenter has not contended that the publics right to
comment about broadcast licensees is relevant to her claims,
including her IIED claim.
2 AS 09.17.020(j).
3 We refer to Tom Leykis and Westwood One collectively as
Leykis unless context requires otherwise. On issues that
Westwood One alone appeals, we refer to it by name.
4 Treacy v. Municipality of Anchorage, 91 P.3d 252, 260
(Alaska 2004).
5 Botelho v. Griffin, 25 P.3d 689, 692 (Alaska 2001).
6 Alaska Legislative Council v. Knowles, 21 P.3d 367, 370
(Alaska 2001).
7 French v. Jadon Inc., 911 P.2d 20, 32 (Alaska 1996);
see also Restatement (Second) of Torts 558 (1977).
8 Briggs v. Newton, 984 P.2d 1113, 1120-21 (Alaska 1999)
(quoting French, 911 P.2d at 32); see also Restatement (Second)
of Torts 559 (1977).
9 Restatement (Second) of Torts 566 cmt. a (1977); see
also Milkovich v. Lorain Journal Co., 497 U.S. 1, 13 (1990).
10 See Restatement (Second) of Torts 559 cmt. d (1977).
11 Sands v. Living Word Fellowship, 34 P.3d 955, 960
(Alaska 2001).
12 See, e.g., Milkovich, 497 U.S. at 19 (rejecting
wholesale defamation exemption of all statements in form of
opinion, but holding that statement on matters of public concern
must be provable as false before there can be liability under
state defamation law); see also Sands, 34 P.3d at 960.
13 Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50-51
(1988) (quoting Bose Corp. v. Consumers Union of United States,
Inc., 466 U.S. 485, 503-04 (1984)).
14 Sands, 34 P.3d at 960 (quoting Milkovich, 497 U.S. at
24 (Brennan, J., dissenting)).
15 See Wilson v. Grant, 687 A.2d 1009 (N.J. Super. App.
Div. 1996) (holding radio broadcasters description of plaintiff
as stalker, some little weasel, a vicious swine, a sick cookie,
and sick, no good, pot smoking, wife beating skunk was not
defamatory).
16 See, e.g., Leidholdt v. L.F.P., Inc., 860 F.2d 890 (9th
Cir. 1988) (holding article describing Leidholdt and members of
her organization as pus bloated, sexually repressed, [h]ating
men, hating sex, and hating themselves, and frustrated group of
sexual fascists was not defamatory).
17 FCC v. Pacifica Found., 438 U.S. 726 (1978).
18 Id. at 749-51.
19 The three prongs of the Miller test are:
(a) whether the average person, applying
contemporary community standards would find
that the work, taken as a whole, appeals to
the prurient interest; (b) whether the work
depicts or describes, in a patently offensive
way, sexual conduct specifically defined by
the applicable state law; and (c) whether the
work, taken as a whole lacks serious
literary, artistic, political, or scientific
value.
Miller v. California, 413 U.S. 15, 24 (1973) (citation omitted).
20 Gooding v. Wilson, 405 U.S. 518, 525 (1972) (quoting
Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)).
21 The Restatement (Second) of Torts provides:
One who gives publicity to a matter
concerning another that places the other
before the public in a false light is subject
to liability to the other for invasion of
privacy, if
(a) the false light in which the other was
placed would be highly offensive to a
reasonable person, and
(b) the actor had knowledge of or acted in
reckless disregard as to the falsity of the
publicized matter and the false light in
which the other would be placed.
Restatement (Second) of Torts 652E (1977).
22 Restatement (Second) of Torts 652E cmt. b (1977).
23 See Time, Inc. v. Hill, 385 U.S. 374, 384 n.9 (1967).
24 Id. at 387-88; Flowers v. Carville, 310 F.3d 1118, 1132
(9th Cir. 2002) (citing Restatement (Second) of Torts 652E cmt.
b (1977)).
25 See White v. Fraternal Order of Police, 909 F.2d 512,
518 (D.C. Cir. 1990); Leidholdt v. L.F.P. Inc., 860 F.2d 890,
893 (9th Cir. 1988); Rinsley v. Brandt, 700 F.2d 1304, 1307 (10th
Cir. 1983).
26 Plaintiffs counsel objected at trial to Instruction No.
17s discussion of speech intended to provoke a hostile reaction
under circumstances where a clear and present danger of immediate
violence existed.
27 He cites Turney v. State, 936 P.2d 533, 541 (Alaska
1997), Marks v. City of Anchorage, 500 P.2d 644, 647 (Alaska
1972), and Anniskette v. State, 489 P.2d 1012, 1013 (Alaska
1971), for the proposition that speech may be punished only in
the most limited circumstances.
28 Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988).
29 City of Kodiak v. Samaniego, 83 P.3d 1077, 1082 (Alaska
2004).
30 Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 2001).
31 Coulson v. Marsh & McLennan, Inc., 973 P.2d 1142, 1150
n.21 (Alaska 1999) (citations omitted).
32 Id.
33 Beck v. State, Dept of Transp. & Pub. Facilities, 837
P.2d 105, 114 (Alaska 1992); see also State, Dept of Corr. v.
Johnson, 2 P.3d 56, 61 (Alaska 2000) (reversing for new trial
where erroneous instruction made verdict for plaintiff more
likely).
34 The dissenting opinion never addresses the adequacy of
Instruction No. 17.
35 Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 5253,
5556 (1988).
36 Pearson v. Fairbanks Publg Co., 413 P.2d 711, 715
(Alaska 1966).
37 Cf. Falwell, 485 U.S. at 5253, 5556 (holding under
federal law that public figure claiming IIED based on defamatory
nature of speech must prove actual malice).
38 485 U.S. 46 (1988).
39 Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974)
(emphasis added).
40 Wolston v. Readers Digest Assn, 443 U.S. 157, 166
(1979).
41 Falwell, 485 U.S. at 56.
42 Cf. Mount Juneau Enters., Inc. v. Juneau Empire, 891
P.2d 829, 838 (Alaska 1995) (applying actual malice standard to
defamation claim arising out of newspaper article concern[ing]
matters of public interest).
43 Falwell, 485 U.S. at 53 (emphasis added).
44 The dissent contends that Falwell states that public
figures may not recover on claims of IIED without a showing of
false statements of fact made with actual malice. Dissent at 71.
But Falwells IIED claim, unlike Carpenters, turned on the falsity
of the words describing Falwell. He therefore had to prove both
a falsehood and actual malice to recover for either defamation or
IIED. Falwell does not stand for the proposition that every IIED
claim based on an utterance invariably requires proof of a
falsehood. Permitting Carpenter to pursue an IIED claim that is
not dependent on factual falsity does not permit her to evade the
constitutional limitations that apply to her defamation claim.
The dissent asserts that we are reading Falwell too
narrowly, expos[ing] all opinion statements directed at public
figures to IIED liability. Dissent at 73. But as we make clear,
only Leykiss allegedly harassing conduct is exposed to IIED
liability. His opinions, whether truthful or not, are protected.
The dissent may assume that the Court thinks defamation
standards underlie every dispute arising out of a published
utterance. That assumption would be incorrect. Cf. Cohen v.
Cowles Media Co., 501 U.S. 663 (1991). In that case, Cohen
pursued a promissory estoppel claim against the news company that
truthfully identified him in news stories as its news source
after promising him anonymity. Although the Minnesota Supreme
Court held that allowing the claim would violate the First
Amendment, the United States Supreme Court held that because
Cohen was not attempting to use the claim to avoid the strict
requirements for establishing a libel or defamation claim,
permitting the claim did not offend the Constitution. Id. at
667, 671. Consider also a public figures IIED claim based on a
published threat of harm. Not all IIED claims based on a
published utterance invariably require proof of falsity and, for
public figures, proof of actual malice.
45 The show was broadcast with a ten-second delay; Leykis
could potentially prevent content from being broadcast.
46 Esposito-Hilder v. SFX Broad., Inc., 665 N.Y.S.2d 697
(N.Y. App. Div. 1997).
47 Id. at 701.
48 Finch v. Greatland Foods, Inc., 21 P.3d 1282, 1288 n.21
(Alaska 2001) (citations omitted); Richardson v. Fairbanks N.
Star Borough, 705 P.2d 454, 456 (Alaska 1985) (adopting the
Restatement (Second) of Torts 46(1) (1965) in defining a claim
for IIED).
49 Id. at 1289.
50 Id. Compare Lybrand v. Trask, 31 P.3d 801, 80205
(Alaska 2001) (affirming superior courts dismissal of IIED claim
because neighbors conduct in painting biblical slogans on roof
was not outrageous) and Chizmar v. Mackie, 896 P.2d 196, 209
(Alaska 1995) (affirming trial courts directed verdict based on
conclusion that physicians alleged misdiagnosis of patient as HIV
positive was not outrageous conduct even when doctor failed to
warn patient that screening test upon which diagnosis was based
was unconfirmed) with Teamsters Local 959 v. Wells, 749 P.2d 349,
358 (Alaska 1988) (holding that threatening union members life if
he did not convince his supervisor-spouse to quit during strike
was outrageous conduct as matter of law).
Considered in isolation, Leykiss derogatory words that
merely ridiculed Carpenter would not give rise to an IIED claim.
There is therefore no danger that they could be the basis for an
IIED claim that might infringe on the First Amendment.
51 Lybrand, 31 P.3d at 803 n.4 (quoting with approval
Restatement (Second) of Torts 46 cmt. d (1965)).
52 Chizmar v. Mackie, 896 P.2d 196, 209 (Alaska 1995)
(quoting Tommys Elbow Room, Inc. v. Kavorkian, 727 P.2d 1038,
1044 (Alaska 1986)).
53 Gertz, 418 U.S. at 349.
54 Finch, 21 P.3d at 1288.
55 Fyffe v. Wright, 93 P.3d 444, 456 (Alaska 2004)
(quoting Teamsters Local 959, 749 P.2d at 359 n.14).
56 Cf. Cohen v. Cowles Media Co., 501 U.S. 663, 671
(1991).
57 Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 5253,
5556 (1988); Mount Juneau Enters., Inc. v. Juneau Empire, 891
P.2d 829, 838 (Alaska 1995).
58 Our analysis of federal law makes it unnecessary for us
to consider in this appeal whether Carpenter was a limited
purpose public figure and the scope of that status. We assume
that before a court applying federal law could hold that the
actual malice privilege attached to Leykiss conduct during the
nationwide broadcast, it would have to decide whether Carpenter
was indeed a limited purpose public figure and, if she was,
whether the privilege arising from that status was geographically
or contextually limited. Carpenter was a Juneau resident locally
challenging Juneau broadcasts of the show.
59 Miller v. California, 413 U.S. 15, 2425 (1973).
60 Chaplinsky v. New Hampshire, 315 U.S. 568, 57172
(1942).
61 Virginia v. Black, 538 U.S. 343, 35960 (1999) (citing
Watts v. United States, 394 U.S. 705, 708 (1969), and R.A.V. v.
City of St. Paul, 505 U.S. 377, 388 (1992)).
62 Schenck v. United States, 249 U.S. 47, 52 (1919).
63 Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
64 Gertz v. Robert Welch, Inc., 418 U.S. 323, 32728
(1974).
65 Time, Inc. v. Hill, 385 U.S. 374, 386 n.9 (1967) ([A]ll
libel cases concern public exposure by false matter, but the
primary harm being compensated is damage to reputation.).
66 Restatement (Second) of Torts 46(1) (1965) (stating
that one who engages in extreme and outrageous conduct is liable
for emotional distress and any resulting bodily harm).
67 Frisby v. Schultz, 487 U.S. 474, 484 (1988).
68 Id. at 484.
69 Id. at 485. See also Carey v. Brown, 447 U.S. 455,
47071 (1980); FCC v. Pacifica Found., 438 U.S. 726, 748 (1978);
Rowan v. Post Office Dept, 397 U.S. 728, 737 (1970).
70 The dissent does not challenge our statement that the
Supreme Court in Frisby expressed a special solicitude for the
home. Dissent at 79. But it does imply that we are penalizing
rhetoric because it may have encouraged listeners to contact
[Carpenter]. Dissent at 79. That is not what we are doing. We
are instead recognizing that harassment of even public figures is
actionable if the claimant can prove the elements of IIED and can
prove that the intended purpose of the words was merely to
harass. If Leykis had merely encouraged listeners to blanket
Carpenter with objections to the shows cancellation, his speech
would not have been intended to merely harass and would not be
actionable.
71 Gormley v. Dir., Conn. State Dept of Prob., 632 F.2d
938, 94142 (2d Cir. 1980) (holding that Connecticut may
criminally punish harassing phone calls because the statute
punishes both harassing conduct and speech); United States v.
Lampley, 573 F.2d 783, 787 (3d Cir. 1978) (holding that [t]he
appellant has not claimed, nor could he successfully do so, that
it is beyond the power of the Congress to impose criminal
sanctions on the placement of interstate telephone calls to
harass, abuse or annoy); Walker v. Dillard, 523 F.2d 3, 46 (4th
Cir. 1975) (state statute making it a misdemeanor to curse or
abuse anyone, or use vulgar, profane, threatening or indecent
language over any telephone struck down as vague and overbroad
because the state had not given the law a narrowing construction,
but also stating that [w]e start from the proposition that the
state has a legitimate interest in prohibiting obscene,
threatening, and harassing phone calls, none of which are
generally thought of as protected by the First Amendment)
(emphasis added, citations omitted).
Cf. United States v. Popa, 187 F.3d 672, 67677 (D.C.
Cir. 1999) (striking down statute upheld in Lampley due to lack
of exception for public or political discourse, but recognizing
that governments interest in the protection of innocent
individuals from fear, abuse or annoyance at the hands of persons
who employ the telephone, not to communicate, but for other
unjustifiable motives was important or substantial).
72 United States v. Popa, 187 F.3d 672, 67677 (D.C. Cir.
1999). The dissent reads that case as concluding that political
communication with a public figure on a matter of public concern
is protected speech. Dissent at 81. That holding is consistent
with our holding that speech can be punished if made with the
intent merely to harass and with no intent to persuade, inform,
or communicate. As did the court in Popa, we exclude from our
holding those who intend to engage in public or political
discourse. Popa, 187 F.3d at 677. Decisions of the Courts of
Appeal for the Second and Third Circuits uphold anti-harassment
statutes even though they do not contain a political speech
exception because they target conduct. See supra note 71. Like
the anti-harassment statutes, the tort of IIED as applied to
Carpenters claim addresses the allegedly harassing conduct.
73 Brandenburg v. Ohio, 395 U.S. 444, 447-48 (1969); see
also Marks v. City of Anchorage, 500 P.2d 644, 647 (Alaska 1972).
74 Finch, v. Greatland Foods, Inc., 21 P.3d 1282, 1288
(Alaska 2001).
75 These words are not defamatory, for reasons we
discussed in Part III.A. We therefore do not need to consider
whether under federal law Carpenter was a limited purpose public
figure and whether actual malice in uttering these words might
give rise to both a defamation claim and an IIED claim.
76 We consider here only the words Leykis allegedly spoke
about Carpenter. We do not consider whether other descriptive
words would invariably be qualifiedly protected.
77 Carpenter also challenges the superior courts
rejection of her proposed Instruction No. 15. Because the
instruction was not justified by either Carpenters IIED claim or
her spoliation claim, the superior courts refusal to give the
instruction was not reversible error.
78 Smithart v. State, 988 P.2d 583, 586 (Alaska 1999).
79 Estate of Day v. Willis, 897 P.2d 78, 80 n.2 (Alaska
1995) (citation omitted).
80 Hibbits v. Sides, 34 P.3d 327, 330 (Alaska 2001).
81 Day, 897 P.2d at 81.
82 Sweet v. Sisters of Providence in Wash., 895 P.2d 484,
492 (Alaska 1995).
83 Day, 897 P.2d at 81.
84 Ben Lomond, Inc. v. Schwartz, 915 P.2d 632, 635
(Alaska 1996).
85 Petersen v. Mut. Life Ins. Co. of N.Y., 803 P.2d 406,
410 (Alaska 1990).
86 Day, 897 P.2d at 81 (citation omitted).
87 Id.
88 Id. at 80-82.
89 Finch v. Greatland Foods, Inc., 21 P.3d 1282, 1288
(Alaska 2001).
90 Id. at 1289.
91 Id.
92 Hibbits v. Sides, 34 P.3d 327, 330 (Alaska 2001).
93 See Brumfield v. Exxon Corp., 63 S.W.3d 912, 920 (Tex.
App. 2002) (holding no intentional spoliation occurred where
defendant was not on notice that evidence was relevant to
claim).
94 Cf. Sweet v. Sisters of Providence in Wash., 895 P.2d
484, 492 (Alaska 1995) (considering spoliation negligent, not
intentional, when hospital failed to create and preserve
records); Buzbee v. Ala. Waste Servs., Inc., 709 So. 2d 61, 66
(Ala. Civ. App. 1998) (refusing to apply spoliation doctrine in
absence of any evidence tending to prove intent).
95 Cent. Bering Sea Fishermens Assn v. Anderson (Anderson
I), 54 P.3d 271, 277 (Alaska 2002).
96 BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996).
97 State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S.
408 (2003).
98 Id. at 416-18; Gore, 517 U.S. at 568.
99 Gore, 517 U.S. at 574-75.
100 Reprehensibility is determined by factors including
whether: the harm caused was physical as
opposed to economic; the tortious conduct
evinced an indifference to or a reckless
disregard of the health or safety of others;
the target of the conduct had financial
vulnerability; the conduct involved repeated
actions or was an isolated incident; and the
harm was the result of intentional malice,
trickery, or deceit, or mere accident.
State Farm, 538 U.S. at 419. Westwood Ones conduct only meets
two factors (causing physical harm and acting deceitfully).
101 Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23-24
(1991). Cf. Norcon, Inc. v. Kotowski, 971 P.2d 158, 179-80
(Alaska 1999) (Eastaugh, J., concurring) (approving high ratio
where compensatory damages are small relative to expense of
litigation).
102 Gore, 517 U.S. at 575 (emphasis added).
103 Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23-24
(1991).
104 AS 11.56.610; AS 12.55.035(c)(1)(A).
105 We have contemplated, without so ruling, the
possibility of a punitive damages award for a spoliation claim
even if no compensatory damages were awarded. Hazen v.
Municipality of Anchorage, 718 P.2d 456, 464 n.10 (Alaska 1986).
106 We review the constitutionality of AS 09.17.020(j) de
novo, adopting the rule of law that is most persuasive in light
of precedent, policy, and reason. Anderson v. State ex rel.
Cent. Bering Sea Fishermens Assn (Anderson II), 78 P.3d 710, 713
(Alaska 2003).
107 Evans ex rel. Kutch v. State, 56 P.3d 1046, 1055
(Alaska 2002) (discussing AS 09.17.010 and .020 caps on
noneconomic and punitive damages, respectively). The four-
member court unanimously upheld the punitive damages cap but was
evenly divided on the constitutionality of the noneconomic
damages cap and the punitive damages allocation statute.
Justice Eastaugh joined the dispositional opinion written by
Chief Justice Fabe; Justices Bryner and Carpeneti dissented.
The dissent argued that the noneconomic damages cap violated the
right to a jury trial and equal protection but did not address
the separation of powers issue. Id. at 1070-75.
108 Id. at 1056.
109 Id. at 1055-56 (quoting Franklin v. Mazda Motor Corp.,
704 F. Supp. 1325, 1336 (D. Md. 1989)).
110 The Fifth Amendment of the United States Constitution,
applied to the states through the Fourteenth Amendment, provides
in general terms that private property shall not be taken for
public use, without just compensation. Similarly, article I,
section 18 of the Alaska Constitution provides that [p]rivate
property shall not be taken or damaged for public use without
just compensation.
111 Reust v. Alaska Petroleum Contractors, Inc., 127 P.3d
807, 823-24 (Alaska 2005).
112 Id. at 823.
113 Id.
114 Id.
115 We review the constitutionality of AS 09.17.020(j) and
the proper interpretation of AS 09.60.080 de novo, adopting the
rule of law that is most persuasive in light of precedent,
policy, and reason. Anderson v. State ex rel. Cent. Bering Sea
Fishermens Assn (Anderson II), 78 P.3d 710, 713 (Alaska 2003).
116 Anderson II, 78 P.3d at 722.
117 Id. at 720.
118 Id. (footnote omitted, emphasis in original).
119 Id. at 720-22.
120 Sponsor Substitute for House Bill 58, 34, 20th Leg.,
1st Sess. (1997).
121 Anderson II, 78 P.3d at 721.
122 Memorandum from Rep. Brian Porter, House Majority
Leader, to Senator Tim Kelly, Senate Rules Chairman (Apr. 16,
1997).
123 Anderson II, 78 P.3d at 721-22 (quoting Memorandum
from Rep. Brian Porter, House Majority Leader, to Senator Tim
Kelly, Senate Rules Chairman (Apr. 16, 1997)).
124 House Bill 58 Proposed Resolution Package, 20th Leg.,
1st Sess. (1997).
125 The statutes of several of the states with split-
recovery statutes specifically mention both costs and attorneys
fees. See, e.g., Iowa Code Ann. 668A.1(2)(b) (West 2004)
([A]fter payment of all applicable costs and fees, an amount not
to exceed twenty-five percent of the punitive or exemplary
damages awarded may be ordered paid to the claimant, with the
remainder of the award to be ordered paid into a civil
reparations trust fund administered by the state court
administrator) (emphasis added); Mo. Ann. Stat. 537.675(3)
(West 2004) (The state of Missouri shall have a lien for deposit
into the tort victims compensation fund to the extent of fifty
percent of the punitive damage final judgment which shall attach
in any such case after deducting attorneys fees and expenses)
(emphasis added); 2004 Utah Laws 164 (In any case where punitive
damages are awarded, the judgment shall provide that 50% of the
amount of the punitive damages in excess of $20,000 shall, after
an allowable deduction for the payment of attorneys fees and
costs, be remitted by the judgment debtor to the state treasurer
for deposit into the General Fund) (emphasis added).
126 Anderson II, 78 P.3d at 721.
127 See Alaska Native Tribal Health Consortium v.
Settlement Funds Held for Or To Be Paid on Behalf of E.R. ex
rel. Ridley, 84 P.3d 418, 428-29 (Alaska 2004) (citing Cooper v.
Argonaut Ins., 556 P.2d 525 (Alaska 1976)).
1 485 U.S. 46 (1988).
2 Whether Carpenter is a public figure is a question of
law that we decide de novo. Mount Juneau Enters., Inc. v.
Juneau Empire, 891 P.2d 829, 835 (Alaska 1995) (citations
omitted).
3 Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974)
(emphasis added).
4 See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 246 n.3 (1986).
5 See, e.g., Carr v. Forbes, Inc., 259 F.3d 273, 278
(4th Cir. 2001).
6 In Mount Juneau Enterprises we explained that [a]
public controversy is not simply a matter of interest to the
public, but rather a real dispute, the outcome of which affects
the general public or some segment of it in an appreciable way.
891 P.2d at 836 (quoting Waldbaum v. Fairchild Publns, Inc., 627
F.2d 1287, 1296 (D.C. Cir. 1980)); see also Time, Inc. v.
Firestone, 424 U.S. 448, 454 (1976).
7 Lerman v. Flynt Distrib. Co., 745 F.2d 123, 136-37 (2d
Cir. 1984) (relying on Gertz, 418 U.S. at 351-52; Time, Inc.,
424 U.S. at 454-55; Wolston v. Readers Digest Assn, 443 U.S.
157, 166 (1979); Hutchinson v. Proxmire, 443 U.S. 111, 135-36
(1979)).
8 47 Code of Federal Regulations (C.F.R.) 73.1202
(2004) provides that
All written comments and suggestions
received from the public by licensees of
commercial AM, FM, TV and Class A TV
broadcast stations regarding operation of
their station shall be maintained in the
local public inspection file, unless the
letter writer has requested that the letter
not be made public or when the licensee
feels that it should be excluded from the
public inspection file because of the nature
of its content, such as a defamatory or
obscene letter.
9 See, e.g., Chevalier v. Animal Rehab. Ctr., Inc., 839
F. Supp. 1224, 1234 (N.D. Tex. 1993) (plaintiff appeared on
television, gave interviews to magazines, and apparently tried
to orchestrate a counter-letter-writing campaign); Samuels v.
Berger, 595 N.Y.S.2d 231, 233 (N.Y. App. Div. 1993) (plaintiff
took out newspaper advertisements, purchased advertising time on
local radio, spoke at public hearings, and wrote letter to
editor).
10 See Gertz v. Robert Welch, Inc., 418 U.S. 323, 352
(1974) (holding that lawyer who attended coroners inquest and
filed action for damages did not engage the publics attention
because he never discussed either the criminal or civil
litigation with the press and was never quoted as having done
so).
11 See Bell v. Natl Republican Cong. Comm., 187 F. Supp.
2d 605, 609, 612 (S.D.W. Va. 2002) (holding that campaign
volunteer who had expressed support for one of candidates
political positions in television advertisement and who also
posed for photographs with candidate did not become limited-
purpose public figure because his actions were not sufficiently
significant and because he did not assume a position that . .
. propel[led] him to the forefront of the campaign) (quoting
Suriano v. Gaughan, 480 S.E.2d 548, 557 (W. Va. 1996) (internal
quotations ommitted)); Nehls v. Hillsdale College, 178 F. Supp.
2d 771, 778 (E.D. Mich. 2001) (holding that expelled student,
whose role in controversy merited only short blurb in a nine
page [magazine] article, did not assume position of prominence).
12 Hutchinson, 443 U.S. at 135 (citing Wolston, 443 U.S.
at 167-68).
13 Gertz, 418 U.S. at 351-52.
Our previous cases concluding that a person had become
a limited-purpose public figure all involved situations in which
the person made public expressions of opinion or sought public
approval. See Mount Juneau Enters., Inc. v. Juneau Empire, 891
P.2d 829, 835 (Alaska 1995) (holding that tramway project
developer who voluntarily sought public approval of project was
public figure); Beard v. Baum, 796 P.2d 1344, 1353 (Alaska 1990)
(holding that former state transportation department employee
who brought allegations of departmental corruption to public
attention was public figure); Rybachek v. Sutton, 761 P.2d 1013,
1014 (Alaska 1988) (holding that newspaper columnist on natural
resource and mining issues injected herself into public
controversy on those issues); Moffatt v. Brown, 751 P.2d 939,
941 (Alaska 1988) (holding that candidate for state medical
board voluntarily placed herself in position of public attention
given strong public interest in board appointees
qualifications).
14 Despite the error of concluding that Carpenter was a
limited-purpose public figure, it was not error to grant summary
judgment against Carpenter on her defamation and false light
publicity claims. Statements that do not reasonably imply false
facts even those targeted at private figures are not
susceptible to defamation and false light liability. Gertz, 418
U.S. at 339, 341; White v. Fraternal Order of Police, 909 F.2d
512, 518 (D.C. Cir. 1990).
15 Gertz, 418 U.S. at 344 (footnote omitted).
16 Id. at 345.
17 Id. at 343.
18 Id. at 348.
19 485 U.S. 46 (1988).
20 Id. at 56.
21 Id. at 50.
22 Gertz, 418 U.S. at 344.
23 See FCC Broadcast Radio Services, 47 C.F.R. 73.1202
(2004) (requiring licensees of commercial AM, FM, TV, and Class
A TV broadcast stations to maintain all written comments and
suggestions regarding operation of station in local public
inspection file).
24 Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,
472 U.S. 749, 760 (1985).
25 See Falwell, 485 U.S. at 52.
26 New York Times Co. v. Sullivan, 376 U.S. 254, 272
(1964) (quoting NAACP v. Button, 371 U.S. 415, 433 (1963)).
1 56 P.3d 1046, 1075-76 (Alaska 2002).
1 485 U.S. 46, 56 (1988).
2 The court today does not contend that the trial court
failed to properly instruct the jury on incitement or true
threats.
3 The concurrence argues that Carpenter was not a
limited purpose public figure, reasoning that her participation
in the attempt to remove the Tom Leykis Show from the air was
insufficient to confer limited-purpose public figure status on
her. Concurrence at 56. I believe the trial court correctly
decided that Carpenter was a limited purpose public figure
because she voluntarily injected . . . herself into the
controversy regarding whether the Tom Leykis Show should remain
on the airwaves by purposely trying to influence the outcome.
Mount Juneau Enters., Inc. v. Juneau Empire, 891 P.2d 829, 836
(Alaska 1995) (internal quotations omitted); see also Gertz v.
Robert Welch, Inc., 418 U.S. 323, 351 (1974) (a limited purpose
public figure is one who voluntarily injects himself . . . into
a particular public controversy); Waldbaum v. Fairchild Publns,
Inc., 627 F.2d 1287, 1292 (D.C. Cir. 1980) (a person has become
a public figure for limited purposes if he is attempting to
have, or realistically can be expected to have, a major impact
on the resolution of a specific public dispute that has
foreseeable and substantial ramifications for persons beyond its
immediate participants).
4 Slip Op. at 27.
5 Other statements in the broadcast confirm that Leykiss
intent extended no further than to encourage debate and
petitions. For example, he stated early in the broadcast that
Im going to find out who these people are, and well put it up on
the web site. When the caller replied: That would be just
wonderful, Leykis continued: And were were going to find out
who buckled to the pressure in terms of these advertisers. Were
going to find out, and were going to let you know who they are.
And then you can write your own letters.
6 This echoes Leykiss earlier comment that [y]ou cant
stop this show. Oh, you can stop Juneau, Alaska. But you cant
stop me. And Im on the Internet baby. . . . And it doesnt
matter; you can take me off the air. It will not matter.
Juneau, Alaska will still get this show . . . one way or the
other.
7 In addition to one phone message, Carpenter testified
that she received hang-up calls and spoke with one person who
called her a jerk before she hung up.
8 One argued that [n]o one has the right to dictate to
me or to anyone else what I have the right to listen to . . . .
Thats what they make off buttons for. Another echoed this
thought, suggesting that the on-off knob is the appropriate
avenue for dealing with media one finds to be distasteful. A
third fax stated: Hey You Know What Thanks to You Tom Leykis Has
Been Cancelled. It appears that a second page of this fax also
stated: You are a jerk! P.S. Sit on it!
9 485 U.S. 46 (1988).
10 Slip Op. at 31.
11 Slip Op. at 25.
12 485 U.S. at 53.
13 Id.
14 Id. at 56.
15 Id. at 50.
16 Id. at 51 (internal quotations and citations omitted).
17 Slip Op. at 22-24.
18 Slip Op. at 23-24.
19 I do not contest the courts suggestion that, were the
statements unprotected for another established reason such as
true threat of incitement to illegal activity Leykis would be
liable even without a showing of false facts stated with actual
malice. Slip Op. at 23 n.44. However, unless the speech is
unprotected for another reason a conclusion the court does not
reach an IIED claim by a public figure cannot succeed without
meeting the heightened standards of Falwell.
20 Because the court assumes Carpenter is a public
figure and the cancellation of the show a matter of public
concern, the New York courts decision in Esposito-Hilder v. SFX
Broadcasting, Inc., is inapposite. In Esposito-Hilder, that
court upheld a ruling that an employee at a radio station had a
claim for IIED based on a competing radio stations broadcast of
derogatory comments about her wedding photo. 665 N.Y.S.2d 697,
700-01 (N.Y. App. Div. 1997). Unlike Carpenter, the plaintiff
in Esposito-Hilder was a private figure; her wedding photo was
not a matter of public concern. Falwell did not apply.
21 Watts v. United States, 394 U.S. 705, 708 (1969).
22 Id.
23 Id. at 706.
24 Id. at 707-08.
25 Id. at 708.
26 458 U.S. 886, 926 (1982).
27 Id. at 902.
28 Id. at 927.
29 Id. at 928.
30 Watts, 394 U.S. at 708 (internal quotations & citation
omitted).
31 Falwell, 485 U.S. at 882.
32 Slip Op. at 30.
33 Slip Op. at 35.
34 Slip Op. at 34-35.
35 376 U.S. 254, 279 (1964) (quoting Speiser v. Randall,
357 U.S. 513, 526 (1958)).
36 Slip Op. at 35 (emphasis added).
37 Slip Op. at 32.
38 487 U.S. 474 (1988).
39 Id. at 483.
40 Id. at 483-84.
41 187 F.3d 672 (D.C. Cir. 1999).
42 Slip Op. at 33-34.
43 187 F.3d at 674 (quoting 47 U.S.C. 223(a)(1)(C)).
44 Id. at 673.
45 Id. at 677 (internal quotations omitted).
46 Mount Juneau Enters., Inc. v. Juneau Empire, 891 P.2d
829, 837 (Alaska 1995).
47 Id. at 837-38 (citing Pearson v. Fairbanks Publishing
Co., Inc., 413 P.2d 711, 713 (Alaska 1966)).
48 418 U.S. 323, 344-45 (1974).
49 Id. at 347.
50 See, e.g., 1 Robert D. Sack, Sack on Defamation:
Libel, Slander, and Related Problems 6.1 (3d ed. 2007).
51 992 P.2d 1111, 1115 (Alaska 1999).
52 See Gay v. Williams, 486 F. Supp. 12, 16 (D. Alaska
1979) (interpreting Alaska law).
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
