Who's Being Pornographic Here? (And Were Pornography Allegations Related to School Library Book Reading Defamatory?)

From yesterday's opinion in Wilburn v. Guthrie by the Colorado Court of Appeals (Judge Karl Schock, joined by Judges Matthew Grove and David Yun):

While running for a seat on a local school board, Wilburn participated in a public forum at a middle school attended by Guthrie and her then-eleven-year-old daughter. At the forum, a moderator asked candidates about issues affecting the school district. One such question addressed "banned books": "How does the school board ensure that banned books do not negatively impact students' access to diverse educational literature?"

In response, Wilburn—who believed that certain books should not be available in public schools—read excerpts from three books that he said were available in school libraries in the district. He prefaced his reading from the books with the following:

I do not curse. I'm going to speak some words now that have not come from my lips in 30 years, and I apologize in advance, ladies and gentlemen, for what you're about to hear. These are books currently available in [the school district's] libraries. Please forgive me in advance.

He then read the following passage:

Title is Push. Page 32. "Daddy put his peepee smelling thing in my mouth, my pussy, but never hold me. I see when he first created pink dress dirty sperm stuff on it. About three months after baby was born, I'm twelve when this happens, mama slapped me hard. Then she picked up a cast-iron skillet and she hit me so hard I fall back on the floor. Then she kicks me in the ribs, and she say, 'Thank you Miz Claireece Precious Jones for fucking my husband you nasty little slut! Fat cunt bucket slut! Nigger pig bitch! All you tell them motherfuckers at the damn hospital? I should kill you,' she screamed at me."

After reading passages from two other books, Wilburn continued:

If you want your children to have access to and read this material, that's none of my business. But as an independent taxpayer in this district, don't ask me to pay for it. As a member of this board of directors, don't ask me to force you to pay for it because the answer to both is no.

According to Guthrie, her daughter was "shocked" by the readings and "immediately burst into tears" after the forum. Guthrie characterizes Wilburn's reading of these passages as the "public performance of pornography at a student-led event."

Wilburn was elected to the school board the next month. In the months that followed, Guthrie made several public statements criticizing Wilburn's conduct at the forum and accusing him of engaging in sexually predatory and other criminal behavior.

Guthrie also filed a complaint with the police, and petitioned that Wilburn be prosecuted. Wilburn sued over Guthrie's statements, and the court allowed the claim to go forward as to some statements but not others; the court's discussion summarizes the tenor of Guthrie's statements, but you can read the full opinion for further details:

A statement of opinion may be actionable as defamation if it is based on false or undisclosed facts. But if the factual context for the opinion is fully and accurately disclosed, the speaker's subjective characterization of those facts may constitute a constitutionally protected opinion….

We agree with Guthrie that several of her allegedly defamatory statements—specifically, those in which she described Wilburn's conduct at the forum and expressed her view that it was criminal or otherwise improper—are protected opinion. In these statements, Guthrie made clear that her accusations were based on her interpretation of the disclosed facts, not on some other undisclosed criminal act that Wilburn committed.

For example, in both the police report and the petition for prosecution, Guthrie began her statements by describing Wilburn's reading of the passages at the public forum. She also included a link to a video of the forum and identified the pertinent portions of the video. She then asserted that, by reading the passages aloud, Wilburn had "violated the rules and norms" of the forum and that this conduct was "criminal behavior" because Wilburn had previously referred to the book as pornography. And she said that Wilburn was a "child predator" for reading the quoted excerpts.

Many of Guthrie's comments at school board meetings and in social media posts were in the same vein. Her first post was similar to her statements in the police report and the petition, quoting the language Wilburn read, linking to the video, and asserting that he had "violated the set rules and decorum of the forum, broke [the] district code of conduct, and … traumatize[d] the young children in the audience." And in many other public comments, Guthrie explicitly tied her assertions that Wilburn was a "predator," a "pervert," and a "danger to children" to his readings at the forum.

Given the context and phrasing of these statements, no reasonable person would understand them as assertions of any fact other than that Wilburn had read from the books at the forum. To the extent Guthrie expressed her view that his doing so was criminal, predatory, or otherwise improper, a reasonable listener would understand these accusations as Guthrie's opinion of Wilburn's behavior. And Guthrie disclosed the facts that "would allow an average listener to evaluate" that opinion for themselves….

We also conclude that certain of Guthrie's other statements are not "sufficiently factual to be susceptible of being proved true or false." Such statements include Guthrie's alleged assertions that (1) Wilburn's actions were "grossly perverted and lewd"; (2) Wilburn "raped [her] child's mind"; (3) Wilburn is a "sexual deviant" and a "pervert"; and (4) Wilburn is "the biggest criminal" in the school district. These statements are the kind of subjective judgments and rhetorical hyperbole that cannot support a defamation claim….

[But] we have identified four categories of statements that are sufficiently factual to support a claim: (1) accusations of criminal conduct or predatory behavior that are divorced from the factual context for those accusations; (2) Guthrie's claim that Wilburn followed and harassed her; (3) the insinuation that Wilburn was under investigation; and (4) statements indicating that the CASB [Colorado Association of School Boards] had advised the school board to "exercise caution" in allowing Wilburn access to children.

First, … some of Guthrie's social media posts—at least as they are presented (and admitted) in the complaint—do not include any context for her accusations of criminal and predatory behavior by Wilburn. In one post, Guthrie asserted, without more, that her daughter was "the victim of one of the school board members who is a child predator." In another, Guthrie said, "[I]f [Wilburn is] convicted of the crime he committed[,] he will have to register as a sex offender and will not be eligible to hold a board director seat." Guthrie made other comments baldly claiming that Wilburn had engaged in "predatory behavior" and that there was a "child predator" on the board.

Without the context for these accusations, they could reasonably be understood to imply that Wilburn had committed an unspecified criminal act against children—a claim that is "sufficiently factual to be susceptible of being proved true or false." Opinions that "imply the existence of an undisclosed defamatory factual predicate may support" a defamation claim. And given the declarative and unqualified nature of the statements, they could reasonably be understood as literal assertions of fact rather than rhetorical hyperbole.

In other social media posts, the limited context Guthrie provided for her statements was glaringly incomplete. For example, in one post, Guthrie said that Wilburn had referred to the book he read as "p[o]rn," which she defined as "material used for purpose of arousal," and then leaped from there to the conclusion that Wilburn "read material that arouses him to little kids." Unlike the police report, where Guthrie posed the same syllogism, she did not include a link to the video of the forum or otherwise disclose Wilburn's prefatory and concluding remarks that made clear that he was not reading the book for purposes of sexual gratification. Nor did she specify what the book was. Without this critical context, this post too could have misled a reasonable reader as to what had actually occurred.

Second, Guthrie's statements that Wilburn followed and harassed her are factual assertions and would reasonably be understood as such…. [T]he context establishes that Guthrie made the statements primarily to convince law enforcement—first the police and then the district attorney—that Wilburn had in fact followed and harassed her, with the intent that they would charge Wilburn with a crime. {Guthrie also repeated this accusation in a social media post, again in a manner that "could reasonably be interpreted as stating actual facts."} And although disputed, Guthrie's account is susceptible of being proved true or false….

Guthrie contends that these statements are opinions because they describe her "subjective perception of a disclosed interaction." But unlike Guthrie's statements about the public forum, the facts of which are not in dispute, this claim is premised on Guthrie's factual account of what happened between the parties after the school board meeting. That account does not become an opinion just because it described "what [Guthrie] felt."

Third, to the extent Guthrie made statements asserting or implying that Wilburn was under investigation, those statements were factual assertions. Wilburn was either under investigation or he was not, regardless of what Guthrie believed or whether she agreed with law enforcement's decision….

Fourth, Guthrie's posting of the purported CASB quote—which she repeated at a school board meeting—embedded two factual assertions: (1) there was a pending investigation into Wilburn's behavior around children, and (2) the CASB had advised the school board to "exercise caution" in allowing Wilburn access to children. The first of these assertions is addressed above. The second is likewise "susceptible of being proved true or false": The CASB either issued the claimed advisement or not. And framed as a direct quote from the CASB and a statement by the executive director, reasonable people would take as fact that it had….