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Idaho high court considers ‘defamation by inference’ lawsuit

September 21, 2018

BOISE, Idaho (AP) — The Idaho Supreme Court heard arguments Friday in a case that could determine whether individuals have the right to sue if they think someone implied — but didn’t outright say — something defamatory.

The issue arose in a lawsuit brought last year by former teacher James Verity against USA Today; KTVB television in Boise, Idaho; KGW television in Portland, Oregon, and others in the news industry after the news organizations reported on the results of a national investigation into teacher licensing. The investigation found that teachers who had a license revoked in one state were often able to move to another state to be licensed there.

Verity, a former middle school teacher and high school girls’ athletic coach in Oregon, was one of the teachers included in the investigation. He lost his Oregon teaching license after he was disciplined for having inappropriate sexual contact with an 18-year-old student.

Verity later moved to Idaho, and though the state initially denied his application for a teaching license, he was granted one after an appeal and got a job teaching sixth-grade science at a middle school near Boise. He eventually resigned from that school sometime after the USA Today investigation was published.

In his lawsuit, Verity says the news coverage wrongly implied that he was danger to female students, that he misled Idaho officials about his past conduct and that he committed a crime by having sex with a student.

The news organizations asked 4th District Judge Melissa Moody to toss out the lawsuit. Though the judge found the facts reported in the news stories were true, she said Verity could move forward with the case if he could show that the statements were intended to create false inferences about him.

That’s when the news groups asked the Idaho Supreme Court to take up the matter and decide if Idaho law allows lawsuits alleging “defamation by inference.”

Deb Kristensen, the attorney representing the news organizations, told the high court Friday morning that the facts of the case are undisputed, that the story involved a matter of great public interest, and that Verity was effectively a public official when, as a public school teacher, he had sexual contact with a student.

That doesn’t mean all teachers are public officials, she said, especially in their private dealings. Verity’s case is a matter of public interest, she said.

“I would submit that any time a teacher has a sexual relationship with a student” they are acting as a public official because they are using their position to violate the public trust, she said.

“You cannot have a defamation case if it’s truth,” Kristensen said.

Verity’s attorney Ronald Shepherd said school teachers aren’t public officials, but private individuals and so deserve a higher level of protection from potentially defamatory statements. Treating them as public officials could scare some potential teachers away from the job altogether, he said.

“Mr. Verity, a husband, father, teacher and coach, fell prey” to a young reporter’s quest for a Pulitzer prize, Shepherd said. “Unfortunately during the end of that investigation he learned that Mr. Verity did not fit the gist of his storyline.”

He said Verity didn’t fit the storyline because he disclosed his history in Oregon to the Idaho School Board, and that he had changed in the years between the actions that led to losing his Oregon license his start in Idaho schools.

Shepherd said the news stories made it seem like Verity fled Oregon for a new start in Idaho, when in reality he and his wife had family in the state and simply wanted to move closer to them.

He said the U.S. Constitution protects news organizations’ First Amendment rights as a way to protect individuals.

“Media is not an ends of itself;” he told the justices Friday morning. “it’s there to protect we, the people.”

Several national and local news organizations, including The Associated Press and the Idaho Press Club, have filed a friend-of-the-court brief in the lawsuit voicing their support of the media companies named in the case. The news organizations say allowing “defamation by implication” lawsuits would erode free speech rights and allow journalists to be held liable for accurately reporting facts.

The Idaho Supreme Court justices did not say when they would issue a ruling in the case.

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