1. Math Performance Statement

RESPONSE

From Answer & Counterclaim document (page 5)

22. Dillard admits that he authored a post on the Blog, dated March 27, 2019, alleges that the content of that post speaks for itself, and denies all allegations in the Complaint inconsistent with that content and each and every remaining allegation in paragraph 22.

23. Dillard denies the allegations in paragraph 23.

From Motion for Judgement on the Pleadings document (page 3)

MVP characterizes the statements at issue (the “Statements”) as:

1. Dillard’s March 27, 2019 blog post where “Dillard published a post titled ‘MVP Eradicates WCPSS’s Performance Lead,’ wherein he claimed that WCPSS’s math performance was decreasing and that MVP was the cause” and further made “statements claiming that the causational relationship was statistically provable.” [Compl. ¶ 22.] This Motion will refer to this statement as the “Math Performance Statement,” and a copy of the March 27, 2019 blog post is attached as Exhibit A. (Footnote 2)

From Motion for Judgement on the Pleadings document (page 15-22)

A. THE MATH PERFORMANCE STATEMENT IS NOT ACTIONABLE.

Though MVP alleges that Dillard, in the Math Performance Statement, claimed a “causational relationship” between MVP’s program and decreasing math performance in Wake County and that such was “statistically provable,” his actual statement disclaimed any such relationship, as this excerpt shows:

I continue to be skeptical of all WCPSS’s Year 1 (2017-2018) MVP data claims due to the secret mystery algorithm used to calculate the performance numbers, which were reported without the context of the state numbers. But mainly, due to the widely irregular adoption we have seen of MVP in Wake County, how can anyone make cause-and-effects claims, including me? That said, it’s the only data we have, and this report shows that EDS and LEP students are getting the shaft.”

[See Exhibit A (emphasis added).] This excerpt, placed in the context of the March 27 blog post as a whole and viewed along with the broader context of the dispute related to MVP’s products, is what the Court must review—not MVP’s skewed characterization. And the actual statement is neither defamatory nor false.

1. The Math Performance Statement is Not Susceptible to Conveying Defamatory Meaning and is Protected Opinion.

To be actionable as defamation, a statement must be capable of conveying a defamatory meaning. West, 872 P.2d at 1008. This determination is a threshold question of law for this Court and must be made before any defamation claim is allowed to proceed. See O’Connor, 2007 UT 58, ¶ 26. Moreover, the defamatory meaning inquiry is context-driven. Id. (“Because the existence of defamatory content is a matter of law, a reviewing court can, and must, conduct a context-driven assessment of the alleged defamatory statement and reach an independent conclusion about the statement’s susceptibility to a defamatory interpretation.”). Rather than looking at each Statement in isolation, this Court “must carefully examine the context in which a statement was made” to determine if a Statements is capable of being defamatory in the manner alleged. West, 872 P.2d at 1009.

In that examination, “‘the guiding principle is the statement’s tendency to injure in the eyes of its audience’ when viewed in the context in which it was made.” Mast, 971 P.2d at 932 (quoting West, 872 P.2d at 1008-09). To be defamatory, the statement must expose the plaintiff to “public hatred, contempt, or ridicule.” Hogan, 762 F.3d at 1106. “If no defamatory meaning can reasonably be inferred by reasonable persons from the communication, the action must be dismissed for failure to state a claim.” Cox v. Hatch, 761 P.2d 556, 561 (Utah 1988). If this Court determines that, given the overall context in which the statements appeared and the nature of the speaker as a partisan advocate, a reasonable reader is “not apt to take [the statements] at face value,” MVP’s claims fail as a matter of law. Mast, 971 P.2d at 933; Cox, 761 P.2d at 561 (affirming dismissal of defamation claim because publication not defamatory as a matter of law). This is the case even if this Court assumes that the statements are false and derogatory:

A publication is not defamatory simply because it is nettlesome or embarrassing to a plaintiff, or even because it makes a false statement about the plaintiff. Thus, an embarrassing, even though false, statement that does not damage one’s reputation is not actionable as libel or slander. If no defamatory meaning can reasonably be inferred by reasonable persons from the communication, the action must be dismissed for failure to state a claim.

Id. at 561 (emphasis added); see also West, 872 P.2d at 1009.

Similarly, statements that constitute expressions of opinion, rather than statements of verifiable fact, are not actionable as defamation. See id. at 1018. Instead, to state a defamation claim, a plaintiff must allege defamatory statements of fact that are “capable of being objectively verified as true or false.” Id. Like the other issues presented in this Motion, this is a question of law for this Court. Id.; Ferlauto v. Hamsher, 88 Cal. Rptr. 2d 843, 849 (Cal. Ct. App. 1999) (“The critical determination of whether an allegedly defamatory statement constitutes fact or opinion is a question of law for the court and therefore suitable for resolution by demurrer.” (internal quotations omitted)); Restatement (Second) of Torts § 566 cmt. c (1977).

And, like defamatory meaning, the opinion/fact distinction is a context-driven inquiry, depending not only on “the full context of the statement—for example, the entire article or column—in which the statement is made,” but also on “the broader setting in which the statement appears.” West, 872 P.2d at 1018. This context-based inquiry renders statements nonactionable even when, in some other context, they “might be considered as statements of fact.” Ferlauto, 88 Cal. Rptr.2d at 849. For example, it is well established that opinions expressed in the context of disclosed, true facts are protected speech because “when the facts underlying a statement of opinion are disclosed, readers will understand they are getting the author’s interpretation of the facts presented; they are therefore unlikely to construe the statement as insinuating the existence of additional, undisclosed facts.” Standing Comm. on Discipline v. Yagman, 55 F.3d 1430, 1439 (9th Cir. 1995); see also, e.g., Restatement (Second) of Torts § 566 cmt. c (1977) (“A simple expression of opinion based on disclosed ... nondefamatory facts is not itself sufficient for an action of defamation, no matter how unjustified and unreasonable the opinion may be or how derogatory it is.”). And “if it is plain that the speaker is expressing a subjective view, an interpretation, a theory, a conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable.” Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993).

Ultimately, “[w]here potentially defamatory statements are published in a public debate … or in another setting in which the audience may anticipate efforts by the parties to persuade others to their position by use of epithets, fiery rhetoric or hyperbole, language which generally might be considered a statements of fact may well assume the character of statements of opinion.” Gregory v. McDonnel Douglas Corp., 552 P.2d 425, 430 (Cal. 1976).

The Math Performance Statement is not defamatory under these standards. Utah law is clear that a statement is not defamatory merely because it contains “sharp criticism.” West, 872 P.2d at 1009. It must, instead, damage the plaintiff’s reputation and expose the plaintiff to public hatred, contempt, and ridicule. Id. at 1008. Suggesting that a MVP’s program is not effective and has not had a positive impact on students is not defamatory. See Direct Import I, 538 P.2d at 1041-42 (finding similar statements to be nondefamatory).

This is particularly true given the context in which the Math Performance Statement was made—an ongoing public debate amongst parties with differing viewpoints about the efficacy and usefulness of an educational program—which is readily apparent to anyone reading the post. No one would assume such to be an unbiased statement of pure fact. See, e.g., Mast, 971 P.2d at 932 (“[T]he context of [defendant’s] statement informed the reader or listener they were merely a continuation of a heated political debate, and the statements did not present a likelihood the audience would form a personal animus towards [plaintiff]. In colloquial terms, [defendant’s] statements would necessarily be taken with a grain of salt.”); 1107 (10th Cir. 2014) (allegedly defamatory statements that plaintiff was terminated due to “performance issues” and “erratic behavior” were nonactionable because they were “part of the back-and-forth of a contentious dispute that no reasonable reader would take at face value”).

The forum in which the Math Performance Statement was published—Dillard’s “Wake MVP Parent” blog—only strengthens that conclusion. That blog describes itself as “[a] blog from a parent’s point of view about MVP math in Wake County, NC.” See Exhibit A. That description—which appears atop each post—and the nature of the blog itself would lead any reasonable reader to be “predisposed to view [the blog posts] with a certain amount of skepticism, and with an understanding that they will likely present one-sided viewpoints rather than assertions of provable facts.” Summit Bank v. Rogers, 142 Cal. Rptr. 3d 40, 60-63 (Cal. Ct. App. 2012); Obsidian Finance Group, LLC v. Cox, 740 F.3d 1284, 1294 (9th Cir. 2014) (reaching same conclusion about statements posted on “obsidianfinancesucks.com”); Sack on Defamation, § 4:3.1 (“If a statement appears in a place usually devoted to, or in a manner usually thought of as representing, personal viewpoints, it is also likely to be understood—and deemed by a court—to be nonactionable opinion.”). After all, “[o]nline blogs ... are places where readers expect to see strongly worded opinions rather than objective facts.” Summit Bank, 142 Cal. Rptr. 3d at 60-63; Amaretto Ranch Breedables, LLC v. Ozimals, Inc., No. CV 10-5696 CRB, 2013 WL 3460707, at *4 (N.D. Cal. July 9, 2013) (stating that readers are less likely to view statements on personal blogs as assertions of fact; citing cases). Readers of blogs, like readers of op-ed columns, are “fully aware that the statements found there are not ‘hard’ news like those printed … in the news sections of the newspaper. Readers expect that [bloggers] will make strong statements, sometimes phrased in a polemical manner that will hardly be considered balanced or fair.” See Ollman v. Evans, 750 F.2d 970, 986 (D.C. Cir. 1984) (“Columnists are, after all, writing a column, not a full-length scholarly article or a book. This broad understanding of the traditional function of a column … will therefore predispose the average reader to regard what is found there to be opinion.”). As a result, readers of blogs are “less likely to form personal animus toward [a company] based on statements made in [a blog].” See West, 872 P.2d at 1009.

In any event, the Math Performance Statement’s expressions of opinion are based on disclosed true facts. Specifically, the post provides a hyperlink to data issued by North Carolina’s Department of Public Instruction (“DPI”) showing testing results for students. (Footnote 13) See Edwards v. Schwartz, 378 F.Supp.3d 468, 519 (W.D. Va. 2019) (citing document hyperlinked to the alleged defamatory publication as disclosing facts upon which opinions in publication were based); Abbas v. Foreign Policy Group, LLC, 975 F.Supp.2d. 1, 16-17 (D.D.C. 2013) (same). All of Dillard’s analysis and comments in the Math Performance Statement are based on this data, which he encourages readers to check for themselves. Indeed, the bulk of the post merely reformulates that data into bar charts, upon which Dillard bases his opinions. And Dillard makes clear he is expressing only opinion by specifically disclaiming any attempt to draw a statistically proven causal relationship between the data and MVP’s program.

In light of the context of these disclosed, true facts, “no reasonable reader would consider” Dillard’s statements to be “anything but the opinion of the author drawn from the circumstances related.” Chapin v. Knight-Ridder, 993 F.2d 1087, 1093 (4th Cir. 1993). Indeed, the Math Performance Statement’s most reasonable interpretation is a concerned parent’s “personal conclusion about the information presented, not ... a statement of fact.” Phantom Touring, Inc. v. Affiliated Publ’ns, 953 F.2d 724, 730 (1st Cir. 1992); see also, e.g., Moldea v. New York Times Co., 15 F.3d 1137, 1144-45 (D.C. Cir. 1994) (“Because the reader understands that such supported opinions represent the writer’s interpretation of the facts presented, and because the reader is free to draw his or her own conclusions based upon those facts, this type of statement is not actionable in defamation.”). As a result, the Math Performance Statement is not capable of conveying defamatory meaning and is nonactionable option. MVP’s defamation claim based on that statement should be dismissed on these grounds as a matter of law.

2. MVP Has Not Pled Facts Showing the Math Performance Statement Is False.

Even if the Math Performance Statement was capable of defamatory meaning, which it is not, MVP has failed to adequately plead that the statement is false.

Under Utah law, falsity is an essential element of a defamation claim. West, 872 P.2d at 1007. Because the Math Performance Statement involves a matter of public concern—the education and well-being of children and operation of schools—it is MVP’s burden to plead facts that, if proven, would show the falsity of the alleged statements. Philadelphia Newspapers v. Hepps, 475 U.S. 767, 776 (1986). It is also MVP’s burden to plead the elements of its defamation claim, including the element of falsity, with specificity. See Dennett v. Smith, 445 P.2d 983, 984 (Utah 1968); Nelson v. Target Corp., 2014 UT App 205, ¶ 25, 334 P.3d 1010.

MVP has not come close to satisfying these burdens. Nowhere in the Complaint does MVP allege any well-pled facts establishing that the Math Performance Statement is false. MVP resorts instead to the mere conclusory statement that “[t]hese statements were and are false, defamatory, and not subject to any privilege.” [Compl. ¶ 23.] This is not sufficient to assert a prime facie defamation claim. Kuhre, 2003 UT App 85, ¶ 21; Commonwealth Prop. Advocates, LLC, 2011 UT App 232, ¶ 16 (courts are not bound to accept as true legal conclusions, deductions, and opinions couched as facts). (Footnote 14)

These deficiencies alone are fatal to MVP’s defamation claim related to the Math Performance Statement and justify dismissal. See, e.g., Jacob, 2009 UT 37, ¶¶ 21-22 (affirming dismissal of defamation claim on motion for judgment on pleadings where plaintiff failed to meet burden of alleging facts showing falsity).