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Dismissal of Ex-UTOPIA Worker's Defamation Case Affirmed

By Mark Wilson, Esq. | Last updated on

Chris Hogan was once employed by UTOPIA, the Utah Telecommunication Open Infrastructure Agency. He claims he was fired after he revealed conflicts of interest in contract awards. After Hogan was fired, he threatened to sue the agency unless he was paid $219,000 in damages and the agency's executive director was also fired.

Coincidentally, an unflattering article appeared in a local newspaper discussing Hogan's termination and calling his demand for damages "extortion" and "blackmail." The article's author, "Richard Burwash," was a pseudonym for Mike Winder, the mayor of West Valley, Utah, where the agency did much of its business.

Hogan's lawsuit dealt mostly with defamation, but the Tenth Circuit was having none of it.

Everything in Context

Specifically, the Tenth Circuit dismissed defamation claims for two different sets of statements in the newspaper article. The first claim involved the statement that Hogan was fired for "erratic behavior" and "performance reasons." The court said these statements were too vague for anyone to take seriously as defamatory.

The second statement concerned the characterization of Hogan's actions as "extortion" and "blackmail." Emphasizing the context of the statements, they didn't bother the court one bit. Such accusations, the court said, are often used as a "familiar rhetorical device" and reasonable people, recognizing the use of such a rhetorical device, wouldn't believe that he actually was being accused of a crime.

And even the headline -- "Former UTOPIA contractor accused of extortion" -- would be understood by these Reasonable Readers, wherever they are, as being ambiguous; they're sophisticated enough to know the difference between being accused of a crime, prosecuted for a crime, and convicted of a crime, the court explained.

Again, context matters: The headline can't be taken in isolation, and after reading the rest of the article, Mr. Reasonable Reader would understand that Hogan was hyperbolically being accused of extortion in a court document. (In fact, the words "blackmail" and "extortion" were used in the state's reply brief to Hogan's wrongful termination lawsuit; there never was any formal criminal complaint.)

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That Is One Reasonable Person

Finding no defamation, the Tenth Circuit affirmed the dismissal of Hogan's claims of false light invasion of privacy (there's no false light if there are no defamatory statements), intentional infliction of emotional distress (not outrageous enough), conspiracy, and his Section 1983 claims. Even though the author of the article was West Valley's mayor, he wasn't acting "under color of law" at the time, the court said.

As the Tenth Circuit emphasized again and again, context is important. That Reasonable Person we've heard so much about really knows his stuff: so much so that he can even prevent a prima facie claim from being made. What a guy!

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