The second is about an Aussie woman who was awarded workers’ compensation benefits due to being injured while having sex in a hotel room while on a business trip. Sorry, but I’m not buying this one. And certainly not in America. Well, it might depend on whether she lived in Las Vegas, worked in a legal brothel and was injured while working. Then I can see it. What would a work release look like in this case? Better yet, what would the work hardening program require? 

That reminds me of a burglary we had at Walgreens last week. They got away with all the Viagra. As of yesterday the West Des Moines Police were still out looking for hardened criminals. 

And then there is the brewing controversy over the lack of prosecution of employers not carrying workers’ compensation insurance and leaving injured workers to fend for themselves. This story is one that has been festering for quite some time. I recall the law being passed making it a crime for injured workers to file false claims, but not making it a crime for employers that do not carry workers’ compensation insurance. The law seemed totally one sided and anti-worker. It was almost as if the idea was to intimidate workers while giving dishonest employers a hall pass. It made me wonder about those passing the law. What were you thinking and who were you taking campaign contributions from? Which reminds me why I don't farm and why farmers shouldn't try to practice law,  including passing laws. 

The next case is rather odd in its scope of prohibiting a lawyer from using the Internet. The allegations center around a lawyer, well here let me quote the article: “A Michigan lawyer is facing a five-count criminal case on charges he broke into a former female employee's personal email account over a period of about six months last year.” The charges are for “three counts of unauthorized computer access and two counts of interfering with electronic communications, according to the Flint Journal and WJRT. All of the counts are felonies.” And here is the odd part, the scope of prohibitions seems at odds with the charges and the requisite harm possible: “He was released on $10,000 bond, the station reports. However, 67th District Court Judge David Goggins barred [the man] not only from using the Internet but from accessing the computer server in his law office. He is permitted only to use his smartphone for calls and cannot have direct computer access or use a digital tablet or iPad.”

Oh and let’s not let The Bachelor show go un discussed. The show was sued by two men of “color” (white is also a color, last I knew) because they weren’t able to land a role. I would think some of the screening has to do with the bachelor or bachelorette’s preferences. This will be interesting to watch how it develops. Here is the Petition or Class Action Complaint.

Just when I think that’s all the bizarre news to report I see another story. In this story the report is of a Cooley Law grad suing a Michigan photography studio for using his image to show how effective they are at retouching blemishes to facial skin tones and texture. The worse part is they never even asked for his permission! They just did it and sent it out to people in his class. Ouch! Really? Who came up with this not-so-bright idea? Here is the Complaint and Jury Demand.

We can’t go just yet because we need to cover a story about the Nigerian email scam and a law firm out of Minnesota. Here is the report, “Milavetz Gallop fell victim to the scam when someone claiming to be a 40-year-old Korean woman hurt in Minnesota told the firm she needed help securing a 400,000 legal settlement, report the Minneapolis Star Tribune and Courthouse News Service. The firm received a settlement check for the amount, received assurances it had cleared, and forwarded $396,500 to a Hong Kong bank for the client. The suit (PDF) claims Wells Fargo employees knew or should have known the check was fraudulent. The complaint alleges the bank had a conflict of interest because of a federal program that could have paid up to $150,000 to employees who provide information about money laundering.” Okay, this is way too funny because Iowans and Minnesotans like to make fun of each other and today they are playing the straight man to us Iowans. So let’s end today with some good ole’ Minnesota jokes from our friends at Jokes4Us.com.

Q. What's the difference between a Southwest Minnesota State University sorority sister and a scarecrow?

A. One lives in a field and is stuffed with hay. The other frightens birds and small animals. 

Q: Why do Minnesota grads keep their diplomas on their dashboards?

A: So they can park in handicap spaces. 

Q: Did you hear about the fire in University of Minnesota's football dorm that destroyed 20 books?

A: The real tragedy was that 15 hadn't been colored yet. 

Q: Why do Minnesota students have TGIF on their shoes?

A: Toes Go In First! 

Q: What does a Minnesota native and a bottle of beer have in common?

A: They’re both empty from the neck up. 

And for Sven, Ole and Lena jokes visit Minnesota Joes by Ole. 

Politics, negative ads and a rush to judgment seem to go hand-in-hand with these types of suits. We could do away with it all by having term limits and lessening the amount of money to be made. As for this next report keep in mind it's Fox reporting.

Contrast this verdict with the October 21, 1998 decision in SCHLEGEL II v. OTTUMWA COURIER DIVISION OF LEE ENTERPRISES INCORPORATED. 

Richard R. SCHLEGEL, II and Jeri Schlegel, Appellants, v. The OTTUMWA COURIER, A DIVISION OF LEE ENTERPRISES INCORPORATED, and Russell R. Cunningham, Jr., Appellees., Nos. 96-1040., -- October 21, 1998

Read, Jury Sides With Lawmaker In Negative Ad Lawsuit, $231,000 Award.

Richard R. SCHLEGEL, II and Jeri Schlegel, Appellants, v. The OTTUMWA COURIER, A DIVISION OF LEE ENTERPRISES INCORPORATED, and Russell R. Cunningham, Jr., Appellees.

Nos. 96-1040.

-- October 21, 1998

Considered by HARRIS, P.J., and LARSON, LAVORATO, NEUMAN, and ANDREASEN,JJ.* 

Stephen D. Lombardi, of Lombardi Law Firm, Des Moines, for appellants.Kasey W. Kincaid and Terri L. Combs of Faegre & Benson LLP, Des Moines, for appellees.

A lawyer and his wife won substantial verdicts for compensatory damages against a newspaper publisher and editor-in-chief for incorrectly reporting that the lawyer had declared bankruptcy.   In addition, the jury assessed punitive damages against the two defendants.   The district court set aside the compensatory damage award as excessive and granted the defendants' motion for new trial.   The court also granted the defendants' motion for judgment notwithstanding the verdict (JNOV) on the punitive damage award.   The plaintiffs appeal from these rulings.   They also challenge the district court's order barring certain evidence on retrial.

The defendants cross-appeal, contending that the district court should have granted their JNOV motion on the compensatory damage claim.   The cross-appeal raises a number of issues.   One of those issues is dispositive of this case:  whether the plaintiffs produced sufficient evidence of “actual injury.”   We conclude the plaintiffs failed to produce such evidence and for that reason the district court should have sustained the defendants' motion for directed verdict and granted their motion for JNOV. We therefore affirm in part, reverse in part, and remand with directions.

I. Facts.

Richard R. Schlegel, II is a successful attorney in Ottumwa, Iowa. He was the Wapello County Attorney from 1983 through 1986.   He also is a leader in the American Heart Association and is otherwise active in community affairs.

The Ottumwa Courier is a newspaper of general circulation in the Ottumwa area with 19,494 subscribed readers.   Lee Enterprises owns the Courier.   The Courier's staff includes, among others, editor-in-chief Russell Cunningham;  regional editor, Mike Augspurger;  and a clerk, Heather Guiter.  (For convenience we refer to the Courier and Cunningham collectively as the Courier unless we state otherwise.)

On April 19, 1993, the Courier incorrectly reported that Richard had declared bankruptcy.   The incorrect report appeared in the Courier's courthouse records section on an interior page.   In fact, Richard represented the debtor.   The Courier printed a correction on the front page of the next day's edition, apologizing for the error.

The error sprang from a misreading of an official declaration of bankruptcy.   According to the Courier, Guiter typed the error.   Although she could not recall typing Richard's name specifically, she was the only one on duty the night the information arrived.

II. Proceedings.

Richard and his wife, Jeri, sued the Courier and its editor-in-chief, Russell Cunningham.   Richard claimed the paper defamed him causing him humiliation and damage to his reputation.   Jeri claimed loss of consortium.   Both sought punitive damages for willful and wanton misconduct.

At trial, several witnesses testified that they saw the incorrect bankruptcy notice, wondered as to its truthfulness, and never saw the front-page correction.   All, however, acknowledged that they learned Richard had not filed for bankruptcy.

Richard testified about how the incorrect report affected him.   Jeri testified she and Richard are not as socially active as they once were.  “He has totally lost his sense of humor.   He is ․ a very, very angry man” and “he's not as easy to be with.”   According to her, “it's very difficult.”

In addition to this testimony on compensatory damages, the Schlegels attempted to show punitive damages were appropriate.   Among other things, the Schlegels introduced-over the Courier's strong objections-evidence of Regional Editor Mike Augspurger's substance abuse.   In particular, Augspurger admitted to several operating while intoxicating convictions, which occurred before and after Richard's term as county attorney, and to a conviction for mailing a controlled substance.   Through this testimony, the Schlegels were apparently attempting to suggest that Augspurger intentionally placed this incorrect entry in the paper because of his malice toward Richard as a former county attorney with a “tough-on-drugs” stance.   There was no evidence that Augspurger related these convictions to Richard's tenure as county attorney.   In its posttrial ruling, the district court ruled this evidence inadmissible on retrial because it was irrelevant and prejudicial and should have been rejected at trial.

The Schlegels also successfully introduced financial records of the Courier's owner, Lee Enterprises.

The jury awarded Richard a total of $230,000 in compensatory damages broken down as follows:  impairment of reputation ($30,000), personal humiliation ($100,000), past mental anguish and suffering ($70,000), and future mental anguish and suffering ($30,000).   The jury also awarded Jeri $150,000 compensatory damages for loss of consortium.

In addition, the jury found that the Courier's actions amounted to “willful and wanton disregard for the rights of another” and assessed punitive damages in the amount of $2,000,000.   However, the jury concluded that the Courier's actions were not specifically directed at Richard.   See Iowa Code § 668A.1 (providing that if defendant's conduct is not specifically directed at the plaintiff, seventy-five percent of the award is to be paid to the state).

III. Scope of Review.

 A JNOV must stand or fall on the grounds asserted in the motion for directed verdict.   On appeal, we limit our review to those grounds.   Johnson v. Dodgen, 451 N.W.2d 168, 171 (Iowa 1990).

 When the district court considers a motion for JNOV, it must view the evidence in the light most favorable to the party against whom the motion is made.  Id.  The district court follows these same principles on a motion for directed verdict.  Id.  On our review, we consider the evidence in the same way, asking whether there was sufficient evidence to generate a jury question.  Id.

 Viewing the evidence in this manner, the district court must deny the motion for directed verdict or motion for JNOV if there is substantial evidence to support the claim or defense.  Id. Without such evidence, a directed verdict or JNOV is appropriate.  Id. Evidence is substantial if reasonable minds would accept it as adequate to reach a conclusion.  Id.

IV. Sufficiency of the Evidence to Prove Actual Injury.

A. The parties' contentions.   The Courier argues for JNOV on the compensatory damage issues on the ground that there was no substantial evidence of damage to reputation.   Without such a showing, the Courier insists that a plaintiff in a defamation suit against a news media defendant cannot recover for hurt feelings alone.   In support of this argument on its motion for directed verdict and again on its motion for JNOV, the Courier cited and relied heavily on Johnson v. Nickerson, 542 N.W.2d 506 (Iowa 1996), a case it relies on here.

In resistance to the motion for directed verdict, the Schlegels argued that libel per se was the standard to apply, meaning that damages were presumed.   On appeal, the Schlegels take a different approach, arguing that they did prove damage to reputation.

B. Applicable law.

 1. The law of defamation generally.   The law of defamation includes the twin torts of libel and slander.  Lara v. Thomas, 512 N.W.2d 777, 785 (1994);  W. Page Keeton, Prosser & Keeton on the Law of Torts § 111, at 771 (5th ed.1984) [hereinafter Prosser & Keeton].   Libel is generally a written publication of defamatory matter, and slander is generally an oral publication of such matter.   Prosser & Keeton § 111, at 771.   Authorities agree that

[t]he law of defamation embodies the public policy that individuals should be free to enjoy their reputation unimpaired by false and defamatory attacks.   An action for defamation or slander is based upon a violation of this right.

The gravamen or gist of an action for defamation is damage to the plaintiff's reputation.   It is reputation which is defamed, reputation which is injured, and reputation which is protected by the law of defamation.

Defamation is an impariment of a relational interest;  it denigrates the opinion which others in the community have of the plaintiff and invades the plaintiff's interest in the reputation and good name.   A cause of action for defamation is based on the transmission of derogatory statements, not on any physical or emotional distress to plaintiff which may result.   Defamation law protects interests of personality, not of property.

50 Am.Jur.2d Libel and Slander § 2, at 338-39 (1995).

 Our own cases are consistent with this theme that defamation is based upon damage to the plaintiff's reputation.   For example, in Johnson, we said that “[t]o recover in an action for defamation, a plaintiff must ordinarily prove some sort of cognizable injury, such as injury to reputation.”  542 N.W.2d at 513;  see also Lara, 512 N.W.2d at 785 (noting that “the gist of an action for libel or slander is the publication of written or oral statements which tend to injure a person's reputation and good name” );  Prosser & Keeton § 111, at 773.

 Narrowing our discussion to libel, we note there are two types of libel:  libel per se and libel per quod.  Johnson, 542 N.W.2d at 510.   Libel per se includes statements that have “a natural tendency to provoke the plaintiff to wrath or expose him to public hatred, contempt, or ridicule, or to deprive him of the benefit of public confidence or social intercourse.”   Id. (quoting Prewitt v. Wilson, 128 Iowa 198, 202, 103 N.W. 365, 367 (1905)).   Some examples of libel per se statements include an attack on the integrity and moral character of a party or an accusation that a person is a liar.  Vinson v. Linn-Mar Community Sch. Dist., 360 N.W.2d 108, 116 (Iowa 1984).   Libel per quod simply means that one must refer to facts or circumstances beyond the words actually used to establish the defamation.   Johnson, 542 N.W.2d at 510.

 When statements are libelous per se, they are actionable in and of themselves without proof of malice, falsity, or damage.  Vinson, 360 N.W.2d at 116.   Thus, the jury is allowed to award substantial damages without the necessity of the plaintiff proving actual damage to reputation.   The existence of damage to reputation is conclusively presumed from the publication of the libel.   Prosser & Keeton § 112, at 795.   In contrast, if a statement is libelous per quod, the plaintiff must prove damage to reputation and consequently any special damages such as mental anguish.  Johnson, 542 N.W.2d at 510.

 As Prosser & Keeton points out, “[d]efamation is not concerned with the plaintiff's own humiliation, wrath, or sorrow, except as an element of ‘parasitic’ damages attached to an independent cause of action.”   Prosser & Keeton § 111, at 771;  50 Am.Jur.2d Libel and Slander §§ 386, 387 (1995).   In case of statements that are not libelous per se but libelous per quod, this means a plaintiff must first prove actual damage to reputation before the plaintiff can recover for mental anguish or hurt feelings.   Little Rock, Newspapers, Inc. v. Dodrill, 281 Ark. 25, 660 S.W.2d 933, 935 (Ark.1983);  50 Am.Jur.2d Libel and Slander §§ 386, 387 (1995).   In case of statements that are libelous per se, damages for mental anguish or hurt feelings are allowed because damage to reputation is presumed.  Little Rock, Newspapers, Inc., 660 S.W.2d at 935;  Prosser & Keeton § 112, at 795-96;  50 Am.Jur.2d Libel and Slander §§ 386, 387 (1995).

2. The law of presumed damages after Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).   In Gertz, the Supreme Court held that the First Amendment does not permit private figures to recover presumed damages from news media defendants in defamation per se cases.  418 U.S. at 349, 94 S.Ct. at 3011, 41 L.Ed.2d at 810-11.   In explaining its holding, the Court said:

The common law of defamation is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss.   Under the traditional rules pertaining to actions for libel, the existence of injury is presumed from the fact of publication.   Juries may award substantial sums as compensation for supposed damage to reputation without proof that such harm actually occurred.   The largely uncontrolled discretion of juries to award damages where there is no loss unnecessarily compounds the potential of any system of liability for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms.   Additionally, the doctrine of presumed damages invites juries to punish unpopular opinion rather than to compensate individuals for injury sustained by the publication of a false fact.   More to the point, the States have no substantial interest in securing for plaintiffs such as this petitioner gratuitous awards of money damages far in excess of any actual injury.

Id.

The Court concluded that the appropriate rule is one that “require[s] state remedies for defamatory falsehood [to] reach no further than is necessary to protect the legitimate interest involved.”  Id. The Court thus found it necessary “to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury.”  Id. The Court did not define “actual injury,” but gave examples of what could constitute such injury:

We need not define “actual injury,” as trial courts have wide experience in framing appropriate jury instructions in tort actions.   Suffice it to say that actual injury is not limited to out-of-pocket loss.   Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering.

Id. at 350, 94 S.Ct. at 3012, 41 L.Ed.2d at 811.

Although Gertz required a private figure plaintiff to prove “actual injury,” the Court did not expressly mandate that the actual injury be to reputation.   Thus, Gertz did not constitutionally mandate that damages be based on injury to reputation.   In fact, two years later, the Supreme Court in Time, Inc. v. Firestone allowed recovery in a defamation action simply on a showing of emotional distress damages, stating:

In [Gertz], we made it clear that States could base awards on elements other than injury to reputation, specifically listing “personal humiliation, and mental anguish and suffering” as examples of injuries which might be compensated consistently with the Constitution upon a showing of fault.   Because respondent has decided to forego recovery for injury to her reputation, she is not prevented from obtaining compensation for such other damages that a defamatory falsehood may have caused her.

424 U.S. 448, 460, 96 S.Ct. 958, 968, 47 L.Ed.2d 154, 166 (1976).   Simply put, the Federal Constitution does not bar recovery for a defamation action based solely on emotional distress damages.

Several courts have refused to follow Time, Inc. and, instead, continue to impose a reputational harm prerequisite in defamation actions.   As one court explained:

The spirit of the Gertz decision on this point is clearly one to protect First Amendment rights from unjustifiable and unsubstantiated intrusions.   To allow recovery in a defamation action where the primary element of the cause of action is missing not only sets the law of defamation on end, but also substantially undercuts the impact Gertz seeks to effect.   The law of defamation has always attempted to balance the tension between the individual's right to protect his reputation and the right of free speech.   To totally change the character of defamation to allow recovery when there has been no loss of the former right, would be an unjustified infringement on the First Amendment.

Little Rock, Newspapers, Inc., 660 S.W.2d at 936.

The court in Little Rock, Newspapers, Inc. did not overlook Time Inc.:

While Gertz suggests, and [Time, Inc.] confirms, that the Constitution does not require proof of damage to reputation before recovery for mental suffering can be had, neither does [Time, Inc.] indicate that such an approach is favored.   Indeed, the [Time, Inc.] decision has been strongly criticized and the opposite approach has been taken in subsequent decisions in other states.   We can find no greater substantiation after Gertz than before that would permit recovery for a defamation action without the element of reputational damage.

Id. at 936-37 (citations and footnote omitted);  see also Garziano v. E.I. DuPont De Nemours & Co., 818 F.2d 380, 395 (5th Cir.1987) (imposing a reputational harm prerequisite in defamation actions);  Gobin v. Globe Publ'g Co., 232 Kan. 1, 649 P.2d 1239, 1243 (Kan.1982) (same);  Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 28 (Minn.1996) (same);  France v. St. Clare's Hosp. & Health Ctr., 82 A.D.2d 1, 441 N.Y.S.2d 79, 83 (1981) (same).

Given our case recognition that defamation is based upon damage to reputation, we agree with those courts that have continued to impose a reputational harm prerequisite in defamation actions.   We agree with the comments in Little Rock, Newspapers, Inc. that to do otherwise would set the law of defamation on end.   The presumption limitation in Gertz was imposed to prevent the giving of “gratuitous awards of money damages far in excess of any actual injury.”   Gertz, 418 U.S. at 349, 94 S.Ct. at 3011-12, 41 L.Ed.2d at 811.   As Little Rock, Newspapers, Inc. wisely points out, to allow defamation damages without a showing of reputational harm would undercut the Supreme Court's purpose behind the presumption limitation.

 Our recognition here that reputational harm is a prerequisite for parasitic damages such as mental anguish should not be surprising because we essentially said the same thing in Johnson:  “To recover in an action for defamation, a plaintiff must ordinarily prove some sort of cognizable injury, such as an injury to reputation.   Hurt feelings alone cannot serve as the basis of a defamation action.”  542 N.W.2d at 513 (citation omitted).   Johnson involved a suit against a news media defendant and was decided upon principles enunciated in Gertz and long after Time, Inc.   What we have done here is simply to flesh out the reasons for this holding in Johnson.

In Jones v. Palmer Communications, Inc., we acknowledged that “Gertz articulated an expansive definition of actual damages.”  440 N.W.2d 884, 900 n. 5 (1989) (citation omitted).   We also said we were “persuaded to accept Gertz as the appropriate definition of actual damages in a defamation action.”  Id.  We disavow these statements to the extent they imply that a plaintiff need not prove reputational harm to recover “parasitic” damages such as emotional distress and humiliation.

 C. The merits.   We begin our discussion by first assuming without deciding that Richard is a private figure and was therefore only required to prove the Courier was negligent in publishing the incorrect report.   See Jones, 440 N.W.2d at 889 (holding that private figure need only prove negligence in defamation action against news media defendant).   Contrary to the district court's findings, the Courier has contended throughout these proceedings that Richard is a public figure and for that reason had to prove actual malice.  Gertz, 418 U.S. at 346-47, 94 S.Ct. at 3010, 41 L.Ed.2d at 809 (holding that public officials and public figures must prove actual malice regarding defamatory statements about them;  as for speech concerning private figures, states were left free to interpret their own law and apply any level of protection short of strict liability).   As for this damage issue, the Courier assumes, as we do, that Richard is a private figure.

Like the district court, we find there was insufficient evidence supporting the Schlegels' trial theory that Mike Augspurger, the regional editor, purposefully planted the incorrect report or that his substance abuse problem caused the error.   In awarding punitive damages, the jury specifically found that the Courier's conduct was not directed specifically at Richard.

As mentioned, the district court granted the Courier a new trial on the issue of compensatory damages both as to Richard's claim and his wife's claim for loss of consortium and JNOV on the punitive damage claim.   The district court's discussion on the compensatory damage issue as it relates to Richard's claim sets the tone for our discussion.   The court wrote:

The facts presented in connection with Schlegel's compensatory damage claim disclose that while the event in question made him very upset and mad, it did not cause any loss of business or reputation.   In addition, he has recently developed a new product that he is attempting to market, he remains active in the Air Force Reserves, he is currently a fund raising chairman, and he indicated that he is not worried about the event happening again.   Had Schlegel's reputation been damaged, it likely would have adversely affected his law practice.   Schlegel presented no evidence that he had a good reputation prior to the publication or that his reputation was adversely affected․  Against this background, the jury awarded Schlegel $30,000 for impairment of reputation, $100,000 for personal humiliation, $70,000 for past mental anguish and suffering, and $30,000 for future mental anguish and suffering.   Simply put, an award of $230,000 in compensatory damages is lacking in evidentiary support to the degree that it raises a presumption that it was a result of passion, prejudice, or other ulterior motive and shocks the judicial conscience.

In short, the district court was convinced there was no substantial evidence to support a jury finding of reputational harm.   In other parts of its ruling, the court did note that Jeri testified “as to the physical manifestations of Schlegel's consternation over the false courthouse entry.”   From this we surmise the court did not grant the Courier's JNOV on compensatory damages because it believed hurt feelings and physical manifestations of those feelings were enough to submit the issue to the jury.   Under our rule requiring reputational harm, they are not enough.

Our task then is to determine if the record supports the district court's finding that Schlegel suffered no harm to his reputation.   As the district court stated, there is no evidence that the false report caused Richard a loss of business.   In fact, before trial, Richard dismissed claims regarding loss of business suffered by his wife and him.

Although we have every reason to assume Richard is well regarded in his community and had a good reputation before the false report, he presented no evidence of that good reputation.   The only evidence on this point is Richard's deposition testimony referred to in trial that he was well known, “good or bad.”   The Schlegels presented a number of witnesses, most of whom were friends, who saw the false report.   None testified that Richard had any particular reputation before the false report or that they thought ill of him because of it.

Several cases since Gertz and Time, Inc. have rejected as insufficient similar evidence to show injury to reputation.   For example, in Richie, a nationally syndicated television program showed a picture of the plaintiffs and incorrectly identified them as the parents of a child who had recovered damages against them for child abuse.   The plaintiffs were actually the child's godparents.   The plaintiffs testified they were embarrassed and humiliated by the broadcast.   In addition one of the plaintiffs cited several inquiries from family and friends regarding his involvement with the abuse, described how a restaurant employee who had previously been friendly gave him the “cold shoulder,” and about a year after the broadcast the restaurant served him cheeseburgers that were raw.   Both plaintiffs argued that they “have come to understand they will never know whether people saw the broadcast or think ill of them because of it.”  544 N.W.2d at 26.

Upholding the trial court's grant of a summary judgment in favor of the news media defendant, the Minnesota Supreme Court concluded the plaintiffs had failed to “demonstrat[e] that there is a material question of fact as to whether either of them suffered sufficient harm to their respective reputations to support a defamation claim.”  Id. at 27.   In support of its conclusion, the court noted that the plaintiffs had failed to show a loss of income because of the broadcast, produced no evidence that anyone thought less of them because of it, and could point to no specific facts demonstrating that their reputations had been affected.  Id. at 26-27.

In Little Rock, Newspapers, Inc., two newspapers incorrectly reported that the plaintiff lawyer had failed the bar exam.   The jury awarded the lawyer $40,000 damages for mental suffering.   The appellate court struck down the award, noting that the plaintiff offered no evidence to show damage to reputation.  660 S.W.2d at 936.

In Reveley v. Berg Publications, Inc., 601 F.Supp. 44 (W.D.Tex.1984), a dentist, who was also a mortician, recovered compensatory and punitive damages against a publisher of an article in a mortuary trade journal that defamed the dentist.   The federal district court sustained the defendants' motion for JNOV, finding no actual injury to reputation.  Id. The court found the following evidence was not sufficient to sustain a finding of actual injury:

At the trial of this matter the court heard from plaintiff's friends and acquaintances, both personal and professional, of plaintiff's good character and excellent reputation as a dentist and mortician.   No evidence was presented suggesting that as a result of reading the publication anyone thought any less of plaintiff in a personal or business sense.   No evidence was heard that either of plaintiff's businesses suffered as a result of the publication.   Contrary to plaintiff's contention, the evidence concerning the display of the article in question to Charles Altsman by Professor Byron Starr, a person with whom plaintiff had had philosophical differences concerning mortuary trade practices predating this publication, showed that Mr. Altsman's opinion of plaintiff was unchanged by the article.

Id. at 45.

 We agree with the district court that the Schlegels failed to produce substantial evidence of damage to reputation.   We think the remedy, however, should be JNOV for the Courier on the issue of compensatory damages rather than new trial.   Because the evidence falls short of establishing actual damages, we need not consider the Schlegels' contention that the district court erred in granting JNOV on the punitive damage claim.   Some actual damages must be shown to support a claim for punitive damages.   Sundholm v. City of Bettendorf, 389 N.W.2d 849, 853 (Iowa 1986).

 Even if we were to consider the Schlegels' contention, our review of the record leads us to conclude the district court properly sustained the motion for JNOV on the punitive damage claim because there was no substantial evidence to support the award of punitive damages.   The district court correctly grasped what happened here:

The wrongful conduct in this case appears to be an accidental listing of Schlegel in the bankruptcy notice as demonstrated by the evidence and the jury's finding that the conduct was not directed specifically at Schlegel.

At most, the evidence supports a finding that the Courier was negligent.   The evidence, however, certainly does not rise to the level of “willful and wanton disregard for the rights” of others, the standard for allowing punitive damages here.  Iowa Code § 668A.1.

 Loss of consortium is premised on injury to the spouse.   See Audubon-Exira Ready Mix, Inc. v. Illinois Cent. Gulf R.R., 335 N.W.2d 148, 149 (Iowa 1983).   Because there was no substantial evidence of actual injury to Richard's reputation, Jeri's loss of consortium award cannot stand.

V. Disposition.

The district court correctly sustained the motion for JNOV on the punitive damage claim.   We therefore affirm on that issue.   The court however should have sustained the motion for JNOV on Richard's claim for compensatory damages and on Jeri's claim for loss of consortium.   We therefore reverse on these issues and remand for an order (1) granting the Courier's motion for JNOV on Richard's claim for compensatory damages and on Jeri's claim for loss of consortium and (2) dismissing the case.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.

LAVORATO, Justice.

The Govna wanted Godfrey to resign claiming inter alia that Godfrey's actions were getting in the way of job creation in Iowa. Essentially the claim is that he wasn’t doing a good job; a claim which is seriously flawed to the point of being frivolous. (On this point you need only read how the Iowa Economic Development Authority sells this state to the business community.) Iowa’s workers’ compensation program is heralded as one of the best run programs in the country. Godfrey’s suit says if I am doing a good job what else is left but a right-wing attack on my sexual preferences? 

"Iowa’s workers’ compensation costs are among the nation’s lowest. The average cost of workers’ compensation insurance for manufacturers in Iowa is 16 percent lower than the national average. Iowa law provides for employer choice of doctor." (Actuarial and Technical Solutions, 2009) - quote from Iowa Economic Development Authority, Iowa's Business Advantages LINK

I'm not sure in Iowa I've seen this level of dirty politics being played with the Iowa Industrial Commissioner position. As someone who is a registered Republican and who has practiced before the commission for over 30 years I have to say Chris Godfrey is doing an excellent job. His decisions find balance and frankly the Commission under his administration hasn't favored the injured workers. There is a balance struck that favors no one side. He sticks to the law. His decisions are as fair to the employers as they are to the injured workers. The facts seem to dictate the outcome and if I had to pick a side I'd say the Commission favors the employers. So come on Govna what the heck are you doing?

So who can hear their bank account going ka-ching?

According to the Des Moines Register’s Blog the State of Iowa is paying lawyers $325 per hour to defend the Governor’s actions. Wow George how does one get that kind of coin? According to the Register blog George LaMarca agreed to reduce his hourly rate to $210 per hour and to charge only $75 an hour for legal clerks. Most of Iowa’s downtown defense legal community will be thinking, “Where do I sign up for this gig?” But this isn’t the first time; according to the Register’s blog the Govna hired the Nyemaster Law Firm at $275 an hour to defend him back in September. For a guy that hates lawyers he sure seems to need them quite often. Both are excellent firms and of course Roxanne is no push-over when it comes to civil litigation that gets downright uncivil. See Rush Niget on the Microsoft litigation of which Roxanne Conlin was lead counsel.

What is a citizen to do while the political left and right waste our tax dollars?

You can sit on the sidelines and ignore the shenanigans or else you can publicly speak up. For me the future for my children and grandchildren is more important than just accepting the wasting of government resources to tell people who they can and can't sleep with or love. Frankly that's their business. For me it's more important to speak up than to allow the egos of politicians, left or right, to use the government for their own personal beliefs. 

My suggestions:

• The two of you knock it off.
• The Govna immediately and retroactively reinstate Godfrey’s pay.
• The Govna publicly apologize to Godfrey.
• Godfrey dismisses his lawsuit.
• The Govna knocks off the personal animosity towards Godfrey so the people of Iowa can be served in a way that advances the image of the people of this state and improves the business climate along with creating jobs; rather than chasing them out of this state.
• We tell George "thanks but no thanks." and we all save a bunch of money, a lot more than dismissing Godfrey would ever save.

Just my two cents.

RESOURCES

• Godfrey vs Branstad State Appeal Board Claim Form
• Godfrey vs Branstad Tort Claims Against State Employees
• Godfrey vs Branstad Petition at Law and Jury Demand
• Godfrey vs Branstad Tort Claims Against the State
• Iowa Economic Development on the Iowa Workers' Compensation Commissioner's Job Rating
• Office of the Governor of Iowa
• Follow the Govna on Twitter or on Facebook
• Iowa Industrial Commission Website
• Iowa Advocate
• Huffington Post – Iowa Governor slapped With $1 Million Discrimination Lawsuit By Openly Gay Commissioner
• Historical Suicide - Disgracing Your Family's Reputation by Opposing Gay Marriage, Posted by Steve Lombardi on April 26, 2011

Social networking spat ends in arson charges for woman, Des Moines Register

When the virtual world is not so virtuous

A student posted this comment on a social media site: “Who wants to shoot up the DMACC Ankeny campus the same time I shoot up the Urban campus?”

Twitter post results in DMACC student’s arrest, Tom Alex, Des Moines Register

You can almost guess what happened next. He was charged with first-degree harassment.

But this isn’t an isolated incident of social media being used as the basis for the filing of criminal charges. In this country, land of the free and home of the brave, words alone posted in a virtual world have become evidence of criminal activity in the real world. With the wide dissemination of information on social media sites, free speech isn’t so free any more. Freedom of expression doesn’t equate to freedom to say anything. Anything you say can and will be used against you in a court of law.

A lawyer I recently broached this subject with, described how in a criminal case the defendants already charged with one crime, used Facebook to organize intimidation of witnesses against them. To their chagrin the prosecutor knew how to use Facebook. What is it with people thinking that you can say anything online and somehow you have immunity from reason? Why do people believe they can say anything in the virtual world without being held responsible? Is it because somehow there is a disconnect between what is typed and posted but not spoken by the out loud? 

One of my clients has filed a complaint with Facebook to remove content describing physical injury, including death, wished upon her by an entire family that describes themselves as descent people. Is this short sighted, idiotic, acceptable free speech or criminal activity meant to intimidate another person? You be the judge. Are these decent people who are simply misguided in wanting to get even? Are they blind to the fact that if something bad were to happen to the virtual victim they then become the primary suspects? 

Get a clue folks.

Another lawyer describes how in a mediation conference the agreement for settlement is reached based on an agreement for confidentiality, only to be broadcasted immediately to her friends from under the conference table by the injured teenager. This is a clear violation of the terms of settlement that could result in nullification of the settlement agreement.

When Social Media Becomes a Royal Pain

Bottom Line: Get a clue – some things are not meant to be a part of social media.

Facebook Crimes on the Rise, Experts Warn. Samantha Murhpy, August 11, 2011

9 Most Bizarre Facebook Related Crimes, Oddee Post, August 10, 2011

Cyber Crime, Facebook

What’s in your wallet?

I buy gas using a credit card and a recent email pointed out we should all be hitting the "CLEAR" button at the pump after concluding our purchase. The email pointed out there is a way for someone to come along after you've left and to charge gas on your card. True? I'm not sure, but for the sake of safety I'm willing to push the clear button. But what about those stories that say electronics have advanced enough for someone to read the information off of your CC while it's still in your wallet? Can that happen and if so how will technology protect us?

We all find the Captial One commercials funny, or least some people do. But what about those electronic strips on your credit cards and identity theft issues that we read about and with fingers crossed sort of ignore? Need we be concerned about someone surreptitiously gathering the info off of our cards? Well, to understand the answer to that question we need to go back to high school science class to learn about the faraday cage. If you learn this lesson you'll be a long way to understanding the direction technology is heading.

Will the faraday cage protect a bird on a cage and what's in your wallet?

It may, but for you to appreciate why and what you need to know let’s first learn about the faraday cage?

Four options for learning about the faraday cage; although for purposes of this article you probably don’t need this detailed an understanding. Option One, Two, Three and Four.

Now let’s get back to the bird on a wire. High Power Electrical Line Maintenance Worker or as their Instructor says, "On a magic carpet".

A Faraday cage or Faraday shield is an enclosure formed by conducting material or by a mesh of such material. Such an enclosure blocks out external static electric fields. Faraday cages are named after the English scientist Michael Faraday, who invented them in 1836.

A Faraday cage's operation depends on the fact that an external static electrical field will cause the electrical charges within the cage's conducting material to redistribute themselves so as to cancel the field's effects in the cage's interior. This phenomenon is used, for example, to protect electronic equipment from lightning strikes and other electrostatic discharges. 

Faraday cages cannot block static and slowly varying magnetic fields, such as Earth's magnetic field (a compass will still work inside). To a large degree though, they also shield the interior from external electromagnetic radiation if the conductor is thick enough and any holes are significantly smaller than the radiation's wavelength. For example, certain computer forensic test procedures of electronic components or systems that require an environment devoid of electromagnetic interference may be conducted within a screen room. These screen rooms are essentially work areas that are completely enclosed by one or more layers of fine metal mesh or perforated sheet metal. The metal layers are grounded to dissipate any electric currents generated from the external electromagnetic fields and thus block a large amount of the electromagnetic interference. See also electromagnetic shielding.

The reception of external radio signals, a form of electromagnetic radiation, through an antenna within a cage can be greatly attenuated or even completely blocked by the cage itself.

What are real life examples of a faraday cage in use? Well let’s go right back to Wikipedia to see some examples.

• The shield of a screened cable, such as the coaxial cable used for cable television, protects the internal conductors from electrical noise.
• A booster bag (shopping bag lined with aluminum foil) acts as a Faraday cage. It is often used by shoplifters to steal RFID-tagged items.[3] [Now way! Way.]
• The cooking chamber of a microwave oven is a Faraday cage, made to contain the RF signals of the cavity magnetron which cooks the food.
• Some linemen wear Faraday suits, which allows them to work on live, high voltage power lines without risk of electrocution. These suits work because they are not grounded. The suit prevents electrical current from flowing through the body, and have no theoretical voltage limits, as linemen have successfully worked even the highest voltage (Russian 1150 kV) lines safely. [For real, this is the bird on the wire so watch the video, because it's really too kewl to miss.]
• The scan room of an MRI is designed as a Faraday cage. This prevents external RF (radio frequency) signals from being added to data collected from the patient, which would affect the resulting image. Radiographers are trained to identify the characteristic artifacts created on images should the Faraday cage be damaged.

Do we need to be concerned with having a faraday cage in your pocket? Maybe we do.

http://www.youtube.com/watch?v=xTa8oviCPt8

What’s in your wallet?

Oh and while we are at it let's not forget the credit card slave trade. If you're dumb enough to use a cc to live a lifestyle you haven't earned then they own you for life.

Crimes of hyperbole?

Why if you yell "Fire!" in a movie theatre is it a crime?

Spartanburg County, South Carolina - A 78-year-old vet was arrested and charged with making threats against the President after saying he’d like to kill the United States President, Barack Obama.

A shock jock and blogger was found guilty of threatening to kill three federal judges in Chicago, Illinois; it appears from the report he did not say he wanted to kill them, but that he believed they deserved to be killed.

What is hyperbole? When is hyperbole considered a crime? Is the suggestion of killing the U.S. President different than saying you will or want to kill the U.S. President? When is free speech not free? When is a U.S. Citizen's right to free speech curtailed in favor of expediency?

Should the medical examiner be reporting physicians to the Iowa Board of Medicine concerning standard of care issues? Or, if an Iowa ME sees questionable deaths is it his/her duty to report it to the Iowa Board?

According to a Des Moines Register article wirtten about a libel suit between the Woodbury County Medical Examiner [ME] and a surgeon this ME did just that; he reported to the Iowa Board of Medical Examiners something he questioned and the lawsuit was ‘tossed’ by Judge Reade. But I don’t think that’s completely accurate. I believe the suit is still alive although portions of it have been ruled upon in a way that is adverse to the plaintiff, but favorable to the defendant. The ME reported a doctor for what he thought were standard of care issues. I’ve not completely read the decision but will guess the main issues were immunity from suit.

Okay, I’ve located the opinion and I’ll add this link and add the decision to my site under defamation. The Order is 40 pages long. I can see both sides of this argument. On the one side you have the ME’s role as a government official and medical doctor protecting citizen patients. On the other side you have a doctor spending a considerable amount of money, $200,000, defending himself against the charges. No one will be happy with this controversy.

Here is the Judge's conclusion from page 39 by the Court.

The court concludes, as a matter of law, that Dr. Carroll did not act with actual malice in publishing the statements in the Letter. Dr. Reeder puts forth no evidence that Dr. Carroll knew his statements were false. Nor is there “‘sufficient evidence to permit the conclusion that [Dr. Carroll] in fact entertained serious doubts as to the truth of his publication.’” Barreca, 683 N.W.2d at 123 (quoting Caveman Adventures, 633 N.W.2d at 762). Because he did not publish the statements with actual malice, Dr. Carroll’s statements in the Letter are qualifiedly privileged. For the same reason, he also is immune from civil liability for the statements pursuant to Iowa Administrative Code r. 653-22.2(2)(f). Accordingly, the court shall grant the Motion to the extent it seeks summary judgment with respect to Dr. Reeder’s libel and false light claims.12

Is this matter concluded? Probably not, the case is probably still alive in the sense that there are other claims/issues to be resolved. Here is why. The plaintiff sued under three different theories of liability: 1. Slander. 2. Libel. 3. False light invasion of privacy. Here is a quote from U.S. Judge Linda Reade’s opinion that wold indicate the case remains active.

In the Complaint, Plaintiff asserted claims against Defendant Thomas Carroll, M.D., (“Dr. Carroll”) for slander, libel and false light invasion of privacy. On April 6, 2009, Dr. Carroll filed an Answer (docket no. 10), in which he denied the substance of the Complaint and asserted affirmative defenses.

From a practical standpoint parts of the case have been decided, but it appears from the decision there are portions of the claim that have not. I'll keep my eye out for a conclusion. Stay tuned.

Gay Non-News - Bob Vander Plaats continues to distract voters with his efforts to get attention by blaming the Iowa Supreme Court for God’s work in making people gay. Now he’s saying the Iowa Supreme Court should have sent the issue to the Iowa Legislature rather than decide the controversy before them. Bob, Bob, Bob this isn’t all that difficult an issue. The Iowa Legislature passes laws and the Courts decide controversy’s interpreting or applying those laws. It’s basic civics 101 from high school. You did go to high school didn’t you? Next he’ll be advocating gay counseling to un-gay them.  I’m beginning to wonder why Bob is so interested in this subject.

Spencer, Iowa – The debate between Agriculture Secretary, Bill Northey and his challenger Francis Thicke involved a lengthy discussion about the egg recall, how it has affected Iowa’s reputation and how to change state regulations to protect consumers.

Justifying Deadly Force - The Webster City police officer that shot after a traffic stop was cleared. The investigation found his use of deadly force was justified. The Officer is Scot Ely.

Adventure Travel - An Iowa climber from Sanborn, Iowa was rock climbing in the Grand Teton Mountains and was knocked off the mountain after a bolt of lightning struck close by. His harness must not have been properly secured. He fell 3,000 feet to his death. The climber was Brandon Oldenkamp, 21. There is no mention of whether there was a climbing instructor with him, what company organized the trip and who the other climbers are. I’ll write more on this later this week.

Campus Life - A Drake University student apparently fell from the balcony of his apartment in the middle of the night and died. He was from Zimbabwe. Indications of drinking are being reported. He was Cliffton Murove from Gweru, Zimbabwe. Reports indicate a night of heavy drinking. This is the second death within the week for Drake University students. Ryan Henderson was discovered in his car near campus, dead from unknown causes. A toxicology screen is being processed at the state lab. And six months ago we had Benjamin Backstrom dying from a gunshot wound near Norwalk, Iowa. His death was later ruled a suicide.

Highway Deaths - A man from Emerson must have fallen asleep at the wheel, crossed the center line and struck a semi-truck head on, killing him. He was 65 and the location was U.S. Highway 34 near Hastings.  An autopsy should show if he had a heart attack. Were medications involved?

The Bar Scene - A guy from Windsor Heights was charged with public intoxication after being a scuffle with the bouncers at Uncle Bucks, 1720 25^th Street, West Des Moines on September 4, 2010. What makes this bar fight of interest is the bouncers may have handcuffed him, and then did their work. The guy is reported to have said at least four bouncers hit and punched him after he was handcuffed. Can they even use handcuffs?  That’s hardly a fair fight. The report further indicates Uncle Buck’s has had the police called 51 times in 2010. Here are the facts from the Des Moines Register. My guess is we are not far from the night the City Council does a review of this bar’s liquor license. Maybe UB’s can bring the bouncers to that meeting to see if they can impress the council.

Police have been called to Uncle Buck's 51 times in 2010. Ten calls were for assaults, nine were for fights, five were for public intoxication, and three were for disputes. The other calls were for collection things, such as keys locked in vehicles and violations of no-contact orders.

For comparison, police have been called to another large bar in West Des Moines — Cabaret in the West Glen development — 34 times this year.

But Uncle Buck's holds 553 people compared with 353 at Cabaret, and West Des Moines Police Lt. Jeff Miller said the difference in police calls is not significant.

Investigative Work - West Des Moines, Iowa – It’s more than a little unusual for the parking lot at West Glen Target to have a murder suspect being arrested but that’s exactly what occurred. The events leading up to charges of murder started in Texas with a knife and ended with police tracking his cell phone usage and triangulating his location. They knew he was traveling north on I-80 and spotted his car, allegedly a stolen vehicle. Interesting police work to say the least. Law enforcement from Huntsville, Texas are on their way to Iowa to collect the suspect and take him back to Texas.

Dam the Taxpayer Dollars - Delhi, Iowa – At a cost of almost $6 million dollars private lake owners at Lake Delhi are asking the State of Iowa taxpayers for a $5.8 million handout to foot the bill for restoration of the Lake Delhi dam that broke. Should the taxpayers who enjoy no access to the lake pay for what is a private enjoyment? No way. If they do someone needs to sue the homeowner’s board and collect from the HOA liability policy for failure to maintain the structure. Why should taxpayers pay for purely private structures? It makes no sense.

Later this week I'm going to write more about the young man falling to his death in the Tetons. Until then know your rights, protect yourself and "let's be careful out there."

HERE IS WHAT IS REPORTED TO HAVE HAPPENED

The Des Moines Register reported that the Mitchell County Board of Supervisors has asked its County Attorney Mark Walk to research a claim for defamation against the Osage newspaper, the Press-News and its editor, David Namanny. I tried to locate the actual editorial but was unable to find it online. I’m left with the story by CBS-2 New and the story, Mitchell County considers suit against newspaper, August 17, 2010. It may have all started when the Press-News published an editorial that said: "Looks like it's time to get out the pitchforks and head over to the county courthouse".

Yawn……. That’s not exactly a statement of fact; or a threat against any one individual or for that matter a falsehood. It sounds more like an opinion or hyperbole. Hyperbole is a figure of speech in which exceptional exaggeration is deliberately used for emphasis rather than deception.

No way Lombardi! Yes, way. He actually said that and said it in print. Shocking! Isn’t it?

Okay folks let’s get a grip. This is nothing to start a war over.

Even though I'm sure he'd bill you for the work, you shouldn't waste taxpayers' money to do legal research about something you should already know. Let us analyze the little we know. What’s the false part of that statement? What fact in that statement is false or in any way misleading? Do you not know that public officials are fair game even for some statements that later prove false? Do the government officials in Mitchell County not understand the basic law of libel? Let’s look first at Schlegel because you might want to check the bottom line of how much we took home.

See SCHLEGEL II v. OTTUMWA COURIER DIVISION OF LEE ENTERPRISES INCORPORATED , October 21, 1998, Docket Nos. 96-1040 - The Schlegels also successfully introduced financial records of the Courier's owner, Lee Enterprises.

The jury awarded Richard a total of $230,000 in compensatory damages broken down as follows:  impairment of reputation ($30,000), personal humiliation ($100,000), past mental anguish and suffering ($70,000), and future mental anguish and suffering ($30,000).   The jury also awarded Jeri $150,000 compensatory damages for loss of consortium.

In addition, the jury found that the Courier's actions amounted to “willful and wanton disregard for the rights of another” and assessed punitive damages in the amount of $2,000,000.   However, the jury concluded that the Courier's actions were not specifically directed at Richard.   See Iowa Code § 668A.1 (providing that if defendant's conduct is not specifically directed at the plaintiff, seventy-five percent of the award is to be paid to the state).

Post Trial Rulings: Zipped, zippo, nadda, see ya, I hope you didn’t get a parking ticket while parked outside the courthouse.

Here is a free legal opinion thanks to the Student Press Law Center:

New York Times Company v. Sullivan, 376 U.S. 254 (1964). In order for a public official or a public figure to prove defamation, they must prove actual malice. Actual malice requires that the person suing prove that the challenged statement was published by those who either knew it was false or were reckless in verifying its accuracy.

Who is a Public Official? The Supreme Court has said that a public official is one who, at the very least, has or appears to the public to have, a substantial responsibility for or control over governmental affairs. That would include the Mitchell County officials.

Here check out “The Basics of Libel and Libel Law” by Tony Rogers,

But public officials – people who work in government at the local, state or federal level – have a tougher time winning libel lawsuits than private individuals.

Public officials must not only prove that an article was libelous and that it was published; they must also prove it was published with something called “actual malice.”

Actual malice means that:

The story was published with the knowledge that it was false.

The story was published with reckless disregard of whether or not it was false.

So in my humble legal opinion you’ve got a few problems not to mention a problem with proving who the person is that was allegedly libeled?

Since the County board of Supervisors are public officials you’ll have to prove actual malice. Which, by the way, you are never going to prove; not in a million years.

But here is the rub: What did he say that was a false statement of fact? What is the fact? Truthfully I don‘t get your point in ordering the CA to research a possible cause of action. Was it what he said or that he challenged your authority by pointing out something to the taxpayers that you just don't like being pointed out? Is it simply because the county officials don’t like what was said in the newspaper? If someone is trying to retaliate against the newspaper then the Board of Supervisors may be accused of practicing censorship by discouraging participation in government. Censorship as you well know is practiced in places like Russia, China, Iran and other communist countries like Cuba and Venezuela.  That’s not supposed to be part of what they do in Mitchell County, Iowa. John Mitchel the Irish patriot or John Mitchell the early surveyor would not be proud.

WHAT IS A SLAPPs?

These suits are known as "SLAPPs," or "Strategic Lawsuits Against Public Participation." For those hungry to hold onto power by muting criticism the Courts don’t look kindly on those using the court system to do so. Using the court system for an improper purpose is an abuse of process. And that is the next rung up on the ladder of libel litigation.

Here is how it unfolds. The guy getting sued asks the question: Could this be an attempt to intimidate me for criticizing the county government? Is this a SLAPPs suit? They usually ask that question because of the First Amendment of the United States Constitution giving them a right of free speech. If we are truly free to speak, then we shouldn’t be getting sued for speaking the truth. That should be true even for speach that includes opinions and attempts to be humorous. Which I suspect the editor in this case was trying to do.

The SLAPPs defense is nothing new; in fact there are organizations for the protection of the public’s right to participate in public policy debate. These groups focus on SLAPP’s which is formally known as Strategic Lawsuits Against Public Participation. Here is what one such group writes:

The United States and California constitutions grant every person the right to participate in government and civic affairs, speak freely on public issues, and petition government officials for redress of grievances. Yet, individuals and community groups are often sued for exercising these constitutional rights.

See the First Amendment Project that even provides a section for journalists sued by those using SLAPPs. Here is what FAP says about SLAPPs being used against journalists:

“A free press informs the people and serves as their mouthpiece; its value to our democracy cannot be overstated. Nevertheless, press freedoms are routinely challenged both by the denial by government of access to public records and proceedings and the placement of restrictions on what may be published. Unfortunately, individual journalists and the general public are often unaware of their rights and without resources to turn back these challenges. Thus, the ideal of the free press is too often unfulfilled.”

WHAT’S THE ANSWER FOR MITCHELL COUNTY?

Your answers aren’t in suing Mr. Namanny, but in combining services with other counties.

Perhaps there is a reason why our governments are in debt as much as they are and devoid of any workable solutions. Our elected officials aren’t listening to the citizens about less government, not more. With county governments the numbers just don’t add up.

There are 3,140 counties in the United State and Iowa has 99 counties. The population in Iowa is just over 3 million people of which Mitchell County has 10,781. Mitchell County covers only 468 square miles of the state’s 55,869 square miles. With only 23 people per square mile it’s less than half of the state average. Iowa has the ninth largest number of counties of all states in the U.S. Only Texas (254), Georgia (159), Virginia (134), Kentucky (120), Missouri (115), Kansas (105), Illinois (102) and North Carolina (100) have more counties. Iowa averages only 31,000 residents per county. In Rhode Island, where I grew up we had only 5 counties but averaged 211,000 residents in each county. Only Kansas (27,000), Montana (17,000), South Dakota (12,000) and North Dakota (12,000) have lower county average population counts.  Mitchell County has only 10,874 residents. It covers 469 square miles in area in northeastern Iowa. That’s 23 people per square mile.

The U.S. Census Bureau shows facts indicating this county is probably struggling financially. 

So get a grip because your answer isn’t with putting a target on the back of the local newspaper editor. As lawyers are fond of saying, don’t shoot the messenger. In this case a libel suit won’t solve Mitchell County’s problems. Cooler heads should prevail. You’d do yourselves a favor by calling off the legal dog and listening to what the editor is trying to tell you. So save your money because I’ve already done your research and that lawsuit isn’t going to help your situation.

Instead of wasting the taxpayer’s money on bullying the local newspaper why not spend it coming up with ways to coordinate the purchase of services and supplies with the other 98 counties in Iowa. That way everyone wins. 

SOLVING MITCHELL COUNTY’S FINANCIAL PROBLEMS

According to the Mitchell County official website it was organized in 1854. Originally Mitchell County was a part of Fayette County. Those 10,874 residents are paying to support 21 departments. If you need to save money consider merging with contiguous counties. The employee list shows 31 department heads.  That doesn’t include the Board of Supervisors.

I wonder if Abe Lincoln started out this way. I need a new job.