Keohane v. Stewart
54 A.L.R. 5th 835, 22 Media L. Rep. (BNA) 2545, 882 P.2d 1293 (1994)
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Rule of Law:
A statement on a matter of public concern, even if couched as an opinion or question, is actionable defamation if it implies a provably false assertion of fact that a reasonable person would interpret as stating an actual fact based on the speaker's undisclosed knowledge.
Facts:
- Dr. Michael Gallagher was charged with sexually assaulting an anesthetized patient at St. Thomas More Hospital.
- The criminal case was assigned to District Court Judge Paul J. Keohane, who had previously represented the hospital but did not recuse himself.
- During Gallagher's trial, Cañon City Councilman Stephen Stewart was heard by reporter Dwight Jurgens saying, "That's the best judge money can buy," a comment Jurgens later published.
- Judge Keohane conducted a bench trial and found Dr. Gallagher not guilty by reason of impaired mental condition, which sparked widespread public outrage.
- After the verdict, Stewart approached Jurgens and asked, "What do you think, was [Judge Keohane] paid off in drugs or money?" and "Do you think he was paid off in cash or cocaine?" which were not published.
- On the day of Judge Keohane's retention election, a local newspaper published two letters by citizen Terri Campbell under assumed names, which alluded to the Gallagher case and speculated about payoffs and conspiracies involving judges.
- Following these events, the citizens of the 11th Judicial District voted not to retain Judge Keohane in office.
Procedural Posture:
- Former Judge Paul Keohane sued City Councilman Stephen Stewart and citizen Terri Campbell, among others, for defamation in a Colorado district court (trial court).
- At trial, the jury found in favor of Keohane, awarding him compensatory and punitive damages against both Stewart and Campbell.
- Stewart and Campbell appealed the verdict to the Colorado Court of Appeals.
- The Court of Appeals affirmed the judgment against Stewart but reversed the judgment against Campbell, holding that her letters were constitutionally protected speech.
- The Supreme Court of Colorado granted certiorari to review the decision of the Court of Appeals.
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Issue:
Do statements, consisting of letters to the editor speculating about judicial corruption and a public official's oral questions implying a judge took a bribe, constitute protected opinion under the First Amendment, or are they actionable as assertions of fact?
Opinions:
Majority - Justice Erickson
No, the letters to the editor are protected opinion, but yes, the city councilman's remarks are actionable defamation. A statement is not protected as opinion if it contains a provably false factual connotation that a reasonable person would interpret as stating an actual fact. Regarding Campbell's letters, while they imply a provably false fact (bribery), they cannot reasonably be interpreted as stating actual facts. They were published on the editorial page, used speculative and hyperbolic language (e.g., 'scum,' 'makes you wonder'), and came from an ordinary citizen with no appearance of inside knowledge, signaling they were expressions of frustration rather than factual assertions. In contrast, Stewart's statements are actionable. The questions 'was he paid off in cash or cocaine?' imply the underlying fact of a bribe is settled and only the method is in question, making the assertion provably false. Given that Stewart was a public official (a city councilman) speaking to a reporter, a reasonable person could conclude he was basing his assertion on undisclosed facts. Accusations of criminal activity, even phrased as opinion, are not constitutionally protected.
Concurring-in-part-and-dissenting-in-part - Chief Justice Rovira
No, neither Campbell's letters nor Stewart's remarks are actionable defamation. While I agree with the majority that Campbell's letters are constitutionally privileged, Stewart's remarks should be protected as well. His questions were not assertions of fact but were 'rhetorical hyperbole' and a 'vigorous epithet' made in the context of widespread public outrage over an unpopular verdict. A reasonable listener would have understood the comments as a figurative expression of discontent, not a literal accusation of a crime. Furthermore, the only person who heard the remarks, the reporter, testified he did not take them seriously and considered them 'foolish.' Allowing a public official to recover damages based solely on testimony of feeling 'worse' without any proof of reputational harm dangerously chills public debate and is contrary to the principles of the First Amendment.
Analysis:
This decision clarifies the application of the Milkovich test in Colorado, demonstrating that the distinction between protected opinion and actionable fact is highly context-dependent. The court establishes that the speaker's status, the medium of communication, and the specific phrasing are critical factors. By holding a public official's implicitly factual questions to a reporter actionable while protecting a citizen's speculative letters to the editor, the ruling creates a significant precedent for defamation cases involving political speech and public criticism of officials. It reinforces that while robust debate is protected, speakers may be held liable when their statements, due to their position or phrasing, imply knowledge of undisclosed, false, and defamatory facts, particularly when alleging criminal conduct.
