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You Can’t Cry “Fake News!” in a Crowded Theater…and Get Away With It

By Reid K. Day

While "Fake News!" continues to be a rallying cry for too many powerful political figures, The Kansas City Star recently won a favorable ruling under Kansas' three-year-old anti-SLAPP statute when Kansas State Senate Majority Leader Jim Denning—and Denning's aspiring politician/lawyer—attempted to bring claims of "Fake News" into a court of law. Denning v. Cypress Media, LLC, et al., No. 19CV00496, Tenth Judicial Circuit, Johnson County, Kansas.

Background

Denning, one of Kansas' most powerful and visible Republican politicians, sued The Star for defamation following the January 2019 publication of an editorial column by Steve Rose, a long-time freelancer, titled: "Why hasn't Kansas expanded Medicaid? This GOP leader has a long list of excuses." Rose's column outlined the reasons Denning opposes expanding Medicaid to cover an additional 150,000 Kansans as part of the Affordable Care Act, or "Obamacare."

Denning never refuted the gist of the article—he proudly admits he opposes expanding Medicaid—but took issue with Rose's use of various statements that implied the conversation described in the column occurred in the recent past as opposed to several years ago. Denning also accused Rose of fabricating several statements which Rose attributed to him in the article. In other words, Denning conceded that while he opposed Medicaid expansion, he contended the column falsely stated the reasons why he opposed it.

Denning sued The Star and Rose on Monday, following the publication of the column on Saturday, and without ever contacting the paper and seeking a correction or retraction. Instead, Denning—and his lawyer, who was in the middle of his own campaign to be elected the Chair of the Kansas Republican Party—issued numerous press releases, gave radio interviews and tweeted about "Fake News," with Denning even retweeting a tweet containing a long-nosed Pinocchio.

Anti-SLAPP Motion

The Star immediately moved to strike Denning's claim under Kansas' anti-SLAPP statute, the Public Speech Protection Act, which (ironically) Denning had voted for just three years earlier. The Star made two arguments: First, Rose's column was substantially true in stating Denning's opposition to Medicaid expansion. Second, Denning would be unable to present evidence of actual malice on The Star's part.

As to the argument the column was true, The Star attached numerous media reports and other documents in which Denning had gone "on the record" to oppose Medicaid expansion. As to its actual malice argument, The Star submitted an affidavit by Pulitzer-prize winning editor Colleen McCain Nelson detailing her role in editing the article prior to publication and stating she had no reason to doubt that Rose properly attributed the statements in his column to Denning—given Denning's well-known opposition to Medicaid expansion.

In response, Denning made several legal arguments. As to the question of truth, he submitted a self-serving affidavit in which he vaguely claimed to have never said the exact words printed in the column (even the column never used quotation marks). As to actual malice, he argued that even though Rose was a freelancer, Rose's (alleged) knowledge that he (Rose) had fabricated the statements in the column should be attributed to The Star. He also argued The Star acted with actual malice in not verifying the information in the column—when its contract with Rose expressly gave the paper the right to do so.

In granting The Star's motion from the bench following oral argument, the Court sidestepped the issue of truth, finding instead that Denning failed to come forward with the required "substantial competent evidence" of actual malice. Specifically, it found The Star had no reason to doubt the truthfulness of the column, given Denning's well-known opposition as to Medicaid expansion. It also found that Rose—who wrote his columns without compensation of any sort—was a true independent contractor whose knowledge was not attributed to The Star.

Accordingly, the Court struck the allegations against The Star, and ordered Denning to pay, consistent with the Act's mandatory fee provision for prevailing parties, The Star's attorney fees, which are in the $40,000 range.

The Star's successful defense of Denning's claims is another positive step for the First Amendment and application of strong anti-SLAPP statutes in Kansas and throughout the country. While "Fake News!" will likely continue as a rallying cry for some politicians, crying "Fake News" is not enough to bring a defamation claim based on unfavorable but truthful coverage of a politician's policy positions. Critically, The Star utilized the Act's speedy procedural remedy to raise the issue before the court, and its favorable ruling and award of attorney's fees should make any attorney or potential plaintiff review any applicable anti-SLAPP statute and think twice before filing a meritless defamation claim.

Reid K. Day is an associate at Lathrop Gage LLP in Kansas City, MO. The Kansas City Star was represented by Bernard J. Rhodes of Lathrop Gage LLP; Sen. Denning was represented by Michael J. Kuckelman and Michael T. Crabb of Kuckelman Torline Kirkland, Overland Park, KS.

 
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