Gail Bierman and Beth Weier v. Scott Weier and Author Solutions, Inc.

This defamation case concerns Mind, Body and Soul, a book written by Scott Weier. In the author’s words, the book is “based on my life.” It discusses Scott’s *440personal transformation, largely through his relationship with God, following his divorce “on bad terms” from his first wife. Scott’s ex-wife and her father concluded the book falsely accused them of lying, abuse, and suffering from mental illness. They sued Scott and Author Solutions, Inc. (ASI), the company that produced the book, for libel, invasion of privacy, and intentional infliction of emotional distress. The district court, finding issues of fact, denied both defendants’ motions for summary judgment. The author and the publisher appealed.

On our review, we uphold the denial of Scott’s motion for summary judgment for substantially the reasons set forth in the district court’s thorough opinion. However, we hold that ASI, as a bona fide book publisher, should be considered a “media defendant.” Therefore, we find that ASI was entitled to summary judgment because plaintiffs failed to provide sufficient proof to establish a prima facie case under the established standards applicable to such defendants. We also decline Scott and ASI’s invitation to revise our common law of defamation at this time.

I. Background Facts and Proceedings.

After a contentious divorce which apparently resulted in a severing of Scott’s ties with his daughters as well as his ex-wife, Scott wrote a 253-page memoir entitled Mind, Body and Soul.1 In it he described his own shortcomings and the development of his personal relationship with God and offered advice for others on their own spiritual journeys. He also criticized his ex-wife, Beth Weier, in various respects— accusing her of lying to their daughters, being a bad parent, having a lack of religious conviction, and generally being mean and spiteful. In a key passage, he alleged that Beth’s father, Gail Bierman, molested her as a child and that she suffered from either bipolar disorder or borderline personality disorder as a result. In one sentence summarizing a theme of the book, Scott wrote, “Satan (through my ex) set out to destroy my life, and has upended it completely, but through doing so, it has completely changed my life for the good!”

In late 2008, Scott enlisted the services of ASI to publish his book. For a total fee of $3183.81, ASI formatted and typeset the manuscript, designed the cover, and provided 250 copies of the book for Scott to self-distribute to local bookstores, friends, and family.

ASI offered proofreading and editing services, but Scott declined to purchase them. ASI did run a simple software program on the text that it described as a “manuscript scrub.” This program is a macro in Microsoft Word designed to identify passages that contain certain “buzz” words that might have the potential for being problematic. As an ASI employee explained:

What happens is all these words show up, and they’re from all sorts of topics. Could be trademark issues or copyright issues. It’s a variety of things. It can also be for offensive language. There’s other things I look for as well just to make sure that there isn’t some sort of hate literature or something like that.

So what will happen is the file will be created, the scrub will be created and all these words will be highlighted.... So it’s just a broad range of things you try to go through and kind of size it up as quickly as possible.

After performing the manuscript scrub on Scott’s book, ASI’s employee received a *441highlighted printout that he “speed read.” In one identified passage, Scott had written, “I was molested by an uncle sexually as a young child.” The employee did not do anything about this passage after verifying with Scott that he had more than one uncle. The same employee also initially noted the following passage:

The two women we spoke of earlier, they were both molested by their fathers, or at least that is what they told me. And both of them were bipolar or borderline personality disorder, which is a fairly normal result of this type of sin against a child. Why does one person end up with mental issues and the other does not?

ASI’s employee did not take action on this passage because he “didn’t think there was enough information about the women.” Thus, ASI did not require any changes to the book prior to publication.

ASI did not promote the book but did provide guidance and tips to Scott on how to market his book himself. Scott distributed twenty to thirty of his 250 copies of the book to friends, family, and businesses in the Clear Lake area. The rest of the books remain stored in his parents’ basement. ASI also offered the book on its own website, where three copies were sold, and through Amazon.com, where one copy was sold.

Following the book’s release, Beth learned from a friend that Scott had written it and had made reference to her in it. She obtained a copy in February 2009, read it, and discovered various references to her and her daughters, including passages that appeared to indicate Beth had been abused by her father and suffered from bipolar or borderline personality disorder. She believed those statements, as well as others in the book, were false and defamatory. She and her father retained counsel and sent a cease and desist letter to Scott and ASI. Neither Scott nor ASI took action in response to the letter.

On February 24, 2009, Beth and Gail filed a petition in the Polk County District Court alleging libel per se, false light invasion of privacy, and intentional infliction of emotional distress. The petition specifically identified thirty-two excerpts from the book as being defamatory.2 The plaintiffs also sought and were granted a temporary injunction to prevent further distribution of the book during the pendency of the litigation.3

Scott and ASI filed separate answers to Beth and Gail’s petition.4 Later, after dis*442covery, all parties filed motions for summary judgment. Beth and Gail sought partial summary judgment on their libel claims, requesting an adjudication that certain passages in the book were libelous per se.

ASI filed a motion for summary judgment urging dismissal of all claims against it. ASI contended that most of Beth and Gail’s libel claims should fail as a matter of law because the statements identified by the plaintiffs either were admitted to be true, were not about the plaintiffs, were not provably false, or were not defamatory. Additionally, ASI argued that Beth and Gail could not establish the elements of libel and were not entitled to presumptions under a libel per se theory because ASI was a media defendant. ASI’s motion further argued that the claims for false light and intentional infliction of emotional distress should be summarily dismissed because they were simply libel claims under a different label. Alternatively, ASI maintained that the plaintiffs could not establish the publicity or fault requirements of their false light claims, and the plaintiffs could not establish the necessary elements of intentional infliction of emotional distress. ASI also sought summary judgment on the plaintiffs’ request for punitive damages against it.

Scott’s motion for summary judgment advanced most of the same arguments as ASI’s motion, although he did not contend that he was a media defendant.

On September 15, 2010, the district court issued a twenty-three-page ruling on the parties’ motions. The court concluded the statements in Scott’s book regarding Gail’s alleged abuse of Beth and Beth’s resulting mental illness constituted libel per se and granted Beth and Gail’s motion for partial summary judgment on that ground. The court then turned to whether ASI was a media defendant. It found it was not:

ASI is not the New York Times, or any other media entity. Rather it is a business which contracts to publish documents for private authors. And while its authors may, in some instances, have first amendment rights, the rights retained by ASI have nothing to do with the First Amendment.... Based on the Court[’]s earlier determination that certain statements in the Book are libelous per se, ASI should be treated here as any other private defendant would be in a libel per se action. Accordingly, the elements of falsity, malice, and damage can be presumed as to ASI and the only element the Plaintiffs would have to prove is publication.

The district court further concluded that even if the plaintiffs were required to prove the four elements of a libel claim, they had demonstrated a fact issue as to each element sufficient to survive summary judgment.

The district court also denied ASI’s motion for summary judgment on the false light invasion of privacy claim, finding fact issues existed as to whether ASI gave publicity to the book and whether ASI acted recklessly or with knowledge the book was false. The court, however, granted summary judgment to ASI on the intentional infliction of emotional distress claim, concluding the plaintiffs had failed to show a fact question as to the claimed outrageousness of ASI’s conduct. The district court also denied ASI’s motion for summary judgment on the question of punitive damages, finding a fact question existed as to whether ASI acted recklessly when it published the allegedly defamatory *443statements in the book. In addition, the district court denied Scott’s motion for summary judgment on all claims.

ASI and Scott applied for leave with this court to pursue an interlocutory appeal. We granted their applications and stayed proceedings pending appeal. We initially heard argument in this case last term. However, we then decided to hold this case over for reargument and further consideration in the current term. At that time, we asked the parties to provide supplemental briefing on whether this court should continue to recognize the doctrine of libel per se.

II. Scope of Review.

Our review of rulings on motions for summary judgment is for correction of errors at law. Kiesau v. Bantz, 686 N.W.2d 164, 171 (Iowa 2004). Summary judgment is appropriately granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. When considering a motion for summary judgment, the record must be viewed in the light most favorable to the nonmoving party. Id.

We have explained that summary judgment “is afforded a unique role in defamation cases. Judges have a responsibility to determine whether allowing a case to go to a jury would ... endanger first amendment freedoms.” Jones v. Palmer Commc’ns, Inc., 440 N.W.2d 884, 889 (Iowa 1989) (citation and internal quotation marks omitted), overruled in part on other grounds by Schlegel v. Ottumwa Courier, 585 N.W.2d 217, 224 (Iowa 1998).

III. Discussion.

Defamation law in Iowa is a blend of three things: common law, some statutes set forth in chapter 659 of the Iowa Code, and First Amendment principles established by decisions of the United States Supreme Court. In its constitutional decisions, that Court has seemingly cleared a path for traditional common law defamation claims to proceed when the plaintiff is a private figure and the defamation concerns private matters. Less clear is whether the identity of the defendant as a media defendant changes the constitutional analysis.

Nonetheless, since the United States Supreme Court constitutionalized the law of defamation, our court has consistently viewed media defendant status as significant. When the defendant is a media defendant, we have said that presumptions of fault, falsity, and damages are not permissible, and thus the common law doctrine of libel per se cannot apply. We must now decide whether we should continue to recognize libel per se and the distinction between media and nonmedia defendants, and if so, where ASI belongs.

To frame this discussion, it is useful to review how we got to where we are today. Accordingly, we will first discuss Iowa’s historical law of defamation and then the United States Supreme Court’s landmark defamation eases, followed by our own response to those decisions. Against that backdrop, we will consider the defendants’ arguments that we should abandon libel per se in light of certain constitutional developments as well as the growth of the Internet.

A. Iowa’s Common Law of Defamation. Before 1964, “defamation law consisted primarily of a complex set of common-law rules developed by the state courts.” Jones, 440 N.W.2d at 890. At common law, defamation involved the following elements: (1) publication, (2) of a defamatory statement, (3) which was false and (4) malicious, (5) made of and concerning the plaintiff, (6) which caused injury. See Johnson v. Nickerson, 542 N.W.2d *444506, 510 (Iowa 1996); Vojak v. Jensen, 161 N.W.2d 100, 104, 108 (Iowa 1968), abrogated in part on other grounds by Barreca v. Nicholas, 683 N.W.2d 111, 119-21 (Iowa 2004). “Defamation includes the twin torts of libel and slander. Libel involves written statements, while slander involves oral statements.” Kiesau, 686 N.W.2d at 174 (Iowa 2004) (citation omitted). We recognized two types of libel: libel per se and libel per quod. Id. at 175.

Certain statements were held to be libelous per se, which meant they were “actionable in and of themselves without proof of malice, falsity or damage.” Vojak, 161 N.W.2d at 104. This was “based on the very nature of the language used.” Nickerson, 542 N.W.2d at 510. Libel per se statements 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)). For example, “[i]t is libel per se to make published statements accusing a person of being a liar, a cheater, or thief.” Spencer v. Spencer, 479 N.W.2d 293, 296 (Iowa 1991). “To accuse a person of an indictable crime is defamation per se.” Huegerich v. IBP, Inc., 547 N.W.2d 216, 221 (Iowa 1996); see also Patrick J. McNulty, The Law of Defamation: A Primer for the Iowa Practitioner, 44 Drake L.Rev. 639, 648 (1996) [hereafter McNulty] (listing additional examples of libel per se).

In libel per quod cases, by contrast, a plaintiff must ordinarily prove all the above six elements, including “some sort of cognizable injury, such as injury to reputation.” Nickerson, 542 N.W.2d at 513; see also Suntken v. Den Ouden, 548 N.W.2d 164, 167 (Iowa Ct.App.1996). Further, “[h]urt feelings alone cannot serve as the basis of a defamation action.” Nickerson, 542 N.W.2d at 513. A statement was considered libelous per quod at common law if it was “necessary to refer to facts or circumstances beyond the words actually used to establish the defamation.” Id. at 510. Thus, a statement would be deemed libel per quod where the words in themselves were not considered sufficiently harmful to the plaintiff without further context. See, e.g., Ragland v. Household Fin. Corp., 254 Iowa 976, 982-83, 119 N.W.2d 788, 792 (Iowa 1963) (holding a statement that the plaintiff had not paid a debt was not libelous per se).

“Although [the per se] presumptions were attacked through the years, sometimes scornfully, they remained viable until the United States Supreme Court began to intervene in 1964.” McNulty, 44 Drake L.Rev. at 643-44 (footnote omitted).

B. The United States Supreme Court Intervenes. In 1964, the United States Supreme Court for the first time placed First Amendment boundaries on the common law of defamation. In New York Times v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 726, 11 L.Ed.2d 686, 706 (1964), it overturned a libel judgment that an Alabama city commissioner had obtained against the New York Times and announced that “[t]he constitutional guarantees require ... a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Seven years later, in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 43-44, 91 S.Ct. 1811, 1819-20, 29 L.Ed.2d 296, 312 (1971), a plurality of the Court extended this protection to private persons when the defamatory statements concerned matters of general or public interest.

*445However, just three years after that, the Court changed course somewhat in a case brought by an attorney who was neither a public official nor a public figure. Gertz v. Robert Welch, Inc., 418 U.S. 323, 325-32, 94 S.Ct. 2997, 3000-03, 41 L.Ed.2d 789, 797-801 (1974). Although the magazine article in question involved a matter of public interest, the Court acknowledged the criticism of the Rosenbloom dissent that providing special protection for speech on matters of public concern “would involve the courts in the dangerous business of deciding ‘what information is relevant to self-government.’ ” Id. at 339, 94 S.Ct. at 3006-07, 41 L.Ed.2d at 805 (quoting Rosenbloom, 403 U.S. at 79, 91 S.Ct. at 1837, 29 L.Ed.2d at 332 (Marshall, J., dissenting)). Thus, in Gertz, 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 falsehood injurious to a private individual.” Id. at 347, 94 S.Ct. at 3010, 41 L.Ed.2d at 809. Gertz also concluded that “the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.” Id. at 349, 94 S.Ct. at 3011, 41 L.Ed.2d at 810.

The defendant in Gertz was a magazine publisher, id. at 325, 94 S.Ct. at 3000, 41 L.Ed.2d at 797, and the Supreme Court’s opinion included extensive references to newspapers, broadcasters, publishers, and news media, see id. at 340, 94 S.Ct. at 3007, 41 L.Ed.2d at 805-06. Accordingly, the decision has often been interpreted as distinguishing between media and nonme-dia defendants with its fault and damage proof requirements applying to lawsuits involving a media defendant. See McNulty, 44 Drake L.Rev. at 695 n. 574.

However, a decade after the Gertz decision was filed, the Court added another layer of complexity in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985). In another plurality opinion, the court re-injected considerations of whether the challenged publication related to a matter of public concern. The Court’s plurality opinion interpreted the holding in Gertz as limited to matters of public concern, while concluding the First Amendment imposed no restrictions on speech of purely private concern about a private party plaintiff. Dun & Bradstreet, 472 U.S. at 763, 105 S.Ct. at 2947, 86 L.Ed.2d at 605 (plurality opinion). Thus, in Dun & Bradstreet, the Court upheld a state supreme court decision reinstating a jury verdict that awarded presumed and punitive damages to a business defamed by a false credit report without proof of malice. Id.

Two years later, the Supreme Court again addressed the intersection of the First Amendment and libel claims in Philadelphia Newspapers Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986). In Hepps, the plurality concluded a private figure plaintiff must bear the burden of proving the falsity of speech against a media defendant when the speech is of public concern. Hepps, 475 U.S. at 776-77, 106 S.Ct. at 1563-64, 89 L.Ed.2d at 793 (plurality opinion). The Court added that it did not need to “consider what standards would apply if the plaintiff sues a nonmedia defendant.” Id. at 779 n. 4, 106 S.Ct. at 1565 n. 4, 89 L.Ed.2d at 794 n. 4. But Justice Brennan and Justice Blackmun, whose votes were necessary to form the majority, indicated in a separate concurring opinion that they would not accept a media/nonmedia distinction. See id. at 779-80, 106 S.Ct. at 1565-66, 89 L.Ed.2d at 795 (Brennan, J., concurring).

*446C. Our Court Responds to the United States Supreme Court’s Decisions and Embraces the Media Defendant/Nonmedia Defendant Distinction. We applied the New York Times v. Sullivan framework in a few early cases involving public officials or public figures. See Anderson v. Low Rent Hous. Comm’n, 304 N.W.2d 239, 248-49 (Iowa 1981); Blessum v. Howard Cnty. Bd. of Supervisors, 295 N.W.2d 836, 843 (Iowa 1980); McCarney v. Des Moines Register & Tribune Co., 239 N.W.2d 152, 156 (Iowa 1976). Then, after the Supreme Court decided Gertz, but before it decided Dun & Bradstreet, we addressed Gertz’s application to Iowa libel law in a 1984 case involving a private figure. See Vinson v. Linn-Mar Cmty. Sch. Dist., 360 N.W.2d 108, 117-18 (Iowa 1984). In Vinson, a former school bus driver brought various claims against a school district including a claim of defamation. Id. at 111. The defendant school system argued that we should discard existing Iowa law regarding libel per se and “adopt the standard mandated for actions by private individuals against media defendants in Gertz.” Id. at 117. We noted that Vinson involved a nonmedia defendant and found the speech was not constitutionally protected under Gertz. We concluded:

In this situation where only a private plaintiff and non-media defendant are involved, the common law standard does not threaten the free and robust debate of public issues or a meaningful dialogue about self-government, or freedom of the press. We refuse to extend the Gertz holding to actions between a private individual and a non-media defendant.

Id. at 118. Vinson remains the law in Iowa to this day.5

In 1989, in Jones, we were confronted with a libel case against a media defendant. The case involved a television story discussing the termination of a black firefighter’s employment after he had failed a written examination. Jones, 440 N.W.2d at 889-90. The firefighter had been hired as part of a federal court consent decree entered in an employment discrimination class action case. Id. at 889. The firefighter sued the owner of the television channel. Id. at 888. The media defendant asked us to require that the plaintiff prove actual malice. Id. at 896. We again read Gertz as not permitting liability without fault to be imposed on a media defendant. Id. However, we decided to adopt a negligence standard, rather than an actual malice standard. Id. at 896-99. We did so even though the media defendant argued that the television report had been on a matter of public concern. Id. at 897-98.

In rejecting an actual malice standard, we relied in part upon the language of our own constitution which provides “[ejvery person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right.” Id. at 898 (quoting Iowa Const, art. I, § 7 (emphasis added)). “[T]his express concern for the abuse of free speech is not found in the United States Constitution.” Id. We not*447ed, “Several other states have interpreted similar clauses in state constitutions to justify the adoption of a negligence standard for private plaintiffs in a defamation action.” Id.

Seven years later, in Nickerson, which again involved a media defendant, we reiterated our view of the importance of the media defendant/nonmedia defendant distinction. In that case, the foreman of a jury that found an African-American defendant guilty of murder filed a defamation action after the Des Moines Register printed a story alleging links between the foreman and a white supremacist group. Nickerson, 542 N.W.2d at 509. We took the position that under Gertz, a private party must establish fault — and for that matter actual damages — to bring a case against a media defendant. Id. at 511. “Hence, in cases against a media defendant, the distinction between libel and libel per se has become irrelevant.” Id. We summarized:

[T]o establish a prima facie defamation action against a media defendant, a private figure plaintiff must prove (1) publication (2) of a defamatory statement (3) concerning the plaintiff (4) in a negligent breach of the professional standard of care (5) that resulted in demonstrable injury.

Id.

Johnson explained that to prevail in a defamation action against a media defendant, a plaintiff must “prove some sort of cognizable injury, such as injury to reputation. Hurt feelings alone cannot serve as the basis of a defamation action.” Id. at 513 (citation omitted). We indicated that when suing media defendants for defamation, plaintiffs no longer benefit from presumed fault or damages. Id. We also noted that “[b]oth public officials and private individuals must prove the falsity of the challenged statements.” Id. at 511 n. 3 (citing Hepps, 475 U.S. at 775-76, 106 S.Ct. at 1563-64, 89 L.Ed.2d at 792).

Two years later, in 1998, we examined more closely the damages that must be proved by a private plaintiff in a libel action against a media defendant. Schlegel, 585 N.W.2d at 222-23 (Iowa 1998). In that case, the Ottumwa Courier incorrectly reported that a local lawyer had declared bankruptcy, and the lawyer sued for defamation. Id. at 220. We reaffirmed that the libel per se damage presumption does not apply when the defendant is a member of the media; a plaintiff needs to prove actual damages. Id. at 222-23. We acknowledged that Gertz permitted a private plaintiff to recover against a media defendant under a broad formulation of actual damages which included humiliation and mental anguish. Id. at 223-24. We concluded, however, that an Iowa plaintiff must establish actual reputational harm when suing a media defendant, and not merely emotional distress or humiliation, before he or she may recover for any parasitic damages such as personal humiliation or mental anguish. Id.

Three years after that, in Caveman Adventures UN, Ltd. v. Press-Citizen Co., 633 N.W.2d 757 (Iowa 2001), abrogated in part on other grounds by Barreca, 683 N.W.2d at 119-21, we addressed the standards for awarding punitive damages against media defendants. There, an electronics store paid a newspaper to run an advertisement making unflattering claims about a competing store. Caveman Adventures, 633 N.W.2d at 760. The competitor sued the newspaper. Id. We reiterated that “[i]n the wake of Gertz