Can Idaho media face lawsuits for reporting the truth?

Editor’s note: This article first appeared in the Idaho Press; it is reprinted here by permission.

By Tommy Simmons

At the heart of the case attorneys argued Friday, Sept. 21 before the Idaho Supreme Court is the question of when and why news organizations can face lawsuits for factual reporting, as well as who can file that lawsuit.

The suit involves former Idaho teacher James Verity, who sued news outlets last year for reporting on a sexual relationship he had with a student and the subsequent fallout, even though the teacher did not claim the reporting was inaccurate or ask for a correction.

Attorneys launched into arguments Friday about Idaho’s defamation law, and whether news organizations can libel individuals through the mere implications of a news story. Verity declined through his lawyer to speak with the Idaho Press. His case lists USA Today and Boise’s KTVB as defendants in connection with a Pulitzer Prize finalist story the organizations published, but the lawsuit didn’t begin with a high profile case filing in Idaho — in fact, it stems from events that took place about 13 years ago in another state

“Conduct in Oregon”

It began in 2005 in Prineville, Oregon, when Verity — then a middle school teacher and high school basketball coach — had an “inappropriate physical relationship involving sexual contact” with an 18-year-old student-athlete, a relationship Verity has since admitted to, according to documents filed by attorneys.

That relationship included more than 2,600 text messages and more than 500 hours’ worth of phone calls, as well as “inappropriate physical contact.”

In June 2005, school authorities relieved Verity of his coaching duties, and he resigned from his teaching position two days later; as a result of that resignation, the school district provided him a letter of reference “that did not include any details of Mr. Verity’s inappropriate relationship,” according to briefs filed by attorneys.

Verity tried to regain his teaching license in Oregon, according to court documents.

As part of the process to reapply for his license, he met with a psychologist who wrote he “should not be alone with any female student over the age of 12,” according to court documents. According to documents filed by Verity’s attorney, however, another psychologist found there was “no significant reason to believe that Verity is a risk to ‘cross the line’ with a student of any age.”

At the same time, he also applied for a license in his wife’s native Idaho, according to court documents. He was initially denied in both states, then appealed in both states, according to a brief filed by his attorney. He eventually chose to focus on Idaho, and thus didn’t attend a hearing for his Oregon license “causing a default order to be entered denying reinstatement in Oregon.”

Verity later applied for a teaching license in Idaho, but the state denied him one in September 2008, based on his “conduct in Oregon.”

Yet, after his attorney submitted “supplemental materials” to the Idaho Professional Standards Commission of the Department of Education, and a day of deliberations, the board ruled he would be granted a teaching license. He and his family moved to Idaho — where he’d attended college with his wife — in June 2009. By mid-July 2009, according to court documents, he had not received a license, so his attorney wrote a letter to the Idaho Attorney General’s Office. In that letter, his attorney wrote the state would only issue a license to Verity if he agreed to tell his new employers he’d had his license revoked in Oregon.

“The obvious intent of such a condition is to effectively render Mr. Verity’s license useless. … This condition serves no purpose except to make it extremely difficult for Mr. Verity to get a job,” his attorney wrote.

After that, Idaho’s Chief Certification Officer Christina Linder did issue Verity a teaching license, although, she later wrote, she did so “against my will.”

Caldwell and Nampa

Verity started applying to Idaho schools after that, and “although Mr. Verity disclosed the circumstances surrounding his license revocation in Oregon to Idaho state licensing officials, he did not provide the same information in his application materials to local schools.”

According to Deb Kristensen, one of the attorneys defending the media organizations, Verity did not dispute that fact — or any other — during his deposition by attorneys during the subsequent lawsuit.

Briefs filed recently by Verity’s attorney, though, paint a slightly different picture, because they read, “Just as he had done with his application for teaching credentials in the state of Idaho, Verity fully disclosed his Oregon revocation and the circumstances that led to such revocation” to the Caldwell School District, where he applied. Those briefs also state Randy Schrader, then assistant superintendent of the Caldwell School District, spoke with Melanie Hensman, a member of the board that awarded Verity his Idaho teaching license. Hensman told the assistant superintendent, according to the briefs, that “she would be comfortable with her own daughter being in Verity’s classroom.”

Still, as Jodie Mills, then superintendent of the Caldwell School District would later tell reporters in 2015-16, when her school district hired Verity to work at Caldwell High School beginning in fall 2010, authorities knew nothing about his history in Oregon. He worked as a physical science teacher there and coached boys’ basketball, according to court documents.

But in February 2013, district officials placed him on leave after receiving reports he’d “made inappropriate contact with female students in his classroom,” according to briefs filed by attorneys.

Also according to court briefs, that contact included “tickling, slapping girls on the butt, and comments made about punching and hitting when students need to go to the restroom.”

Students would also later confirm Verity hit them on the “behind, back of the legs, arms and/or head with a ruler during class time.”

As a result, officials delivered a formal letter of reprimand to Verity in February 2013.

Verity left his position in Caldwell and accepted another at Nampa’s Sage Valley Middle School in 2014. In November of that year, he also began coaching basketball at Eagle High School.

USA Today’s investigation

In late 2014, as Verity settled into his new position as an Eagle High School basketball coach, Stephen Reilly, an investigative reporter and data analyst for USA Today, took an interest in media reports of teacher misconduct across the country.

Reilly and his editors “wanted to do a national analysis of teacher misconduct to identify any issues in the systems that are meant to protect students from teacher misconduct.”

Thus, in 2015 Reilly began the lengthy process of submitting records requests across the country, looking for information about teacher misconduct. His piece — later nominated for a Pulitzer Prize — ultimately included data from school districts nationwide. Within that data was information about Verity, and his revoked Oregon teaching license.

According to court documents, Reilly spoke with Idaho school district employees about Verity. It was only because of his investigation that Mills, the Caldwell superintendent, learned about Verity’s past, she told Reilly over the phone. Had district officials known about the Oregon incident, she told the reporter, “it would ‘absolutely’ have been a concern.”

In February 2016, Reilly tried to reach Verity by email and phone, eventually speaking with the teacher by his classroom phone. The conversation was brief, according to court documents.

That was about the same time KTVB reporter Tami Tremblay began working on the story as well; she spoke with Mills and tried to reach Verity, much as Reilly did.

Ultimately, when the USA Today story appeared in print on Feb. 15, 2016, it included no information about Verity. But USA Today distributed the data from Reilly’s investigation to its partner news outlets in other states, and that included KGW-TV in Portland, Oregon. On the same day as the USA Today story, a story appeared on KGW-TV’s website containing information about Verity.

“The article indicates Verity lost his Oregon teaching license and then obtained a license in Idaho ‘simply by crossing state lines,’” according to recent briefs filed by Verity’s attorney. “The article further states that, in obtaining his license in Idaho, Verity ‘slipped through the cracks.’”

Reilly kept reporting on the topic, and since USA Today had partnered with KTVB, the broadcast group did as well.

“All the defendants were working collaboratively and jointly on the story about Verity,” according to a brief filed by Verity’s attorney.

Still, according to court briefs, Verity confirmed all of the details reported by KGW-TV and USA Today, “but he took issue with the fact that ‘more information’ could have been provided in some cases.”

Public reaction to the KGW story on Feb. 15 was immediate, according to court documents — people “inundated” the Vallivue School District with calls laying out their concerns about Verity teaching and coaching in the district.

When Reilly spoke with the principal of Sage Valley Middle School later that month, he said he “did not become aware of documents regarding the revocation of Mr. Verity’s teaching license during the hiring process.”

Days after Reilly’s piece appeared in USA Today, Verity resigned from his job at the middle school. USA Today reported his resignation.

The lawsuit

Less than a month after that, on March 28, 2016, Verity and his wife, Sarahna Verity, filed a complaint in Ada County’s 4th District Court of Idaho against USA Today, KTVB, KGW-TV Reilly and Tremblay.

The Veritys alleged defamation, invasion of privacy, and negligent and intentional infliction of emotional distress. Verity did not, however, claim the piece was inaccurate, nor did he ask the news organizations to retract it, according to court documents. Kristensen said during a deposition, Verity confirmed the details in Reilly’s reporting.

Still, in briefs filed before the Idaho Supreme Court date, Verity’s attorney wrote there were “factual and implied falsehoods” in the stories. Among them were the claims the Caldwell School District was unaware of his conduct in Oregon, and the claim he’d been denied a teaching license in Idaho. A third error, according to briefs from both sides, had to do with a claim in a KTVB story that Verity was not included in a national database of teachers who had been disciplined for misconduct — when in fact he was. According to court documents, KTVB quickly corrected the error when it became known.

During deposition though, Verity confirmed the details in the reporting, Kristensen said. Verity’s attorney didn’t make mention of the falsehoods until recent documents.

The fact that Verity didn’t dispute the claims in the stories made the case unusual, because, as Kristensen pointed out Friday, “truth is an absolute defense.”

“You cannot have a defamation lawsuit if you have truth,” she said.

Kristensen and her team asked 4th Judicial District Court Judge Melissa Moody for a “summary judgment” — in effect, asking her to rule on the case without it going to trial, because they felt, since the reporting was accurate, the defamation claim was moot.

Yet an October ruling from Moody seemed to fly in the face of that axiom. Moody wrote if Verity could prove the reporting “though literally true, could create false inference” and if he could prove the reporters were “negligent in publishing a false statement,” Verity might have a case for “defamation by implication” — meaning the implications, not the facts, of the USA Today piece had damaged his reputation.

That decision could be far-reaching, Kristensen said Friday, even for journalists who report the truth.

“If someone could infer you meant to say something else, and that something else was defamatory, they could sue you,” she said.

That ruling seemed inaccurate to Kristensen, which was why she asked for a “permissive appeal” from the Idaho Supreme Court. The Supreme Court usually only hears cases after they have reached some sort of a conclusion in district court. They made an exception in the Verity case, Kristensen said Friday. To her, it seemed to indicate the justices were interested in the issues at stake.

Defamation by implication?

In court documents and in person Friday, Kristensen pointed out Idaho doesn’t have much history with recognizing “defamation by implication.” The issue arose in a 1990 court case, also involving a news story, but has been largely absent from Idaho case law since then.

She added she didn’t think the Idaho Supreme Court needed to adopt any new torts related to defamation by implication either.

“There is no need based on the facts of this case to go there — to adopt a claim many courts have called a slippery slope,” she said. “It’s bringing an action based on what was not said.”

In addition to that, she pointed out, the Idaho Supreme Court has always held that even if a news outlet makes a slight error in reporting, they are protected from lawsuit if the spirit of their reporting accurately represents what happened.

“No one I represent … seeks to do anything but get at the truth, particularly in matters of public concern,” Kristensen told the justices.

Ron Shepherd, Verity’s attorney, saw the case differently. For him, it was about Verity’s right to protect his reputation. He pointed out Verity effectively lost his job after the USA Today piece came out, and said Verity was no longer able to coach his children’s sports teams.

“If this is not a defamation case, I don’t know what is,” Shepherd said Friday. “(Kristensen) never mentioned once the importance of protecting one’s independent right to protect one’s reputation.”

Verity, Shepherd said, “fell prey to one Washington, D.C. journalist’s quest to receive the Pulitzer Prize.”

“(Reilly) learned Verity did not fit the gist of his storyline,” Shepherd told the justices. “This was learned late in the investigation.”

The USA Today story implies, Shepherd said, that Verity “fled Oregon” and “went beneath the radar,” to Idaho. That wasn’t the case, Shepherd pointed out — Verity tried first to get another teaching license in Oregon, then, when he applied for one in Idaho, he told Idaho officials about his past relationship with a student. Reilly’s story did not reflect that, Shepherd said.

“It makes it sound like he slid under the radar screen and now he’s back in the classroom,” Shepherd said.

Additionally, Shepherd claimed, the story seems to imply Verity is a danger to female students.

“This article suggests he is a predator,” Shepherd said. “I think that’s a fair statement.”

He pointed out while Idaho courts haven’t, in the past, referred to certain cases as “defamation by implication,” the precedent still exists, although it goes by other names.

“This is an egregious case of defamation,” he said.

Are public school teachers public figures?

Shepherd also argued Verity is a private individual, and not a public figure. The distinction is important, because private individuals have more leeway to sue a news organization for defamation than public figures do. Public figures must prove a news organization acted with “actual malice,” meaning reporters either knew their words were false or displayed “reckless disregard for the truth.” Private individuals receive more protection.

“Individuals that aren’t public officials are unique and vulnerable … and so based on that, private individuals are treated differently,” Shepherd told the justices. “I certainly disagree Mr. Verity, or any public school teacher, is a public official just by virtue of being a public school teacher.”

He pointed out private individuals can’t protect themselves from defamation in the media the same way public officials can, and while he lauded the media, he told justices reporting is a means to an end to protect private individuals, not prey on them.

“The media is extremely important … but the reality is the media is really a means to an ultimate end, which is to protect individuals from oppression,” Shepherd said. “Without those individuals, the media is pointless.”

Justices also probed the issue, asking Kristensen if a person becomes a public official anytime they appear in a news report. Kristensen replied that since a public school teacher is a government employee, when a story is written about how a teacher conducts themselves on the job, they become a public official, and thus have less room to claim defamation against a news organization.

“Anytime a teacher has an inappropriate sexual relationship with a student, that would elevate a teacher to public figure status,” Kristensen responded to the justices.

She wasn’t alone in this opinion, she pointed out — the late U.S. Supreme Court Justice William J. Brennan, Jr. had penned a dissenting opinion making a “vehement case” teachers were, in fact, public officials.

“There is plenty of precedent for this court to come to the same conclusion,” she said. “People have looked at that, and found that reasoning to be sound.”

“You’re going to have to meet a hard burden”

Shepherd, after the hour-long hearing, said he and Verity hope the justices rule he is not a public official, and also rule there is precedent for him to sue for defamation by implication. The justices are, in effect, he said, asked to decide what defamation by implication looks like in Idaho.

He said “nothing too surprising” happened Friday morning. He indicated Verity did not want to speak with the Idaho Press.

The case, Kristensen said, is bigger than just one instance of a person claiming defamation against news outlets. It strikes at the core of what news outlets do every day, and whether reporters can stand on the truth they report. She pointed out the justices agreed to hear the case, even though it had an unusual path to the Idaho Supreme Court. That would seem to indicate they were interested in the issue.

“If you’re going to hold someone responsible for something they didn’t say, you’re going to have to meet a hard burden,” she told the justices. “That’s what free speech is all about.”

Tommy Simmons is the Ada County public safety reporter for the Idaho Press. Follow him on Twitter @tsimmonsipt