Six months after suing The Kansas City Star and columnist Steve Rose for defamation, Kansas Senate Majority Leader Jim Denning has seen all of his claims thrown out.
Earlier this month, Johnson County District Judge Paul Gurney tossed Denning’s defamation claims against The Star, finding he had failed to show malice.
And on Tuesday, he did the same thing with Denning’s claims against Rose, finding that Denning had failed to meet his burden of proof under the Kansas Public Speech Protection Act.
Ruling from the bench after listening to 45 minutes of arguments from Rose’s and Denning’s attorneys, Gurney said Denning had not established the likelihood that he would prevail if the case went to a jury.
In January, Rose, then a guest columnist for The Star, wrote a column criticizing Denning for opposing Medicaid expansion. Denning, an Overland Park Republican, sued The Star and Rose a couple of days later, claiming Rose had attributed statements to him he didn’t make and falsely implied he had made them during a recent conversation with Rose.
Rose resigned as an unpaid guest columnist for The Star after Denning’s chief of staff called him out on the column. In a subsequent public statement defending what he wrote, Rose said Denning had made the disparaging remarks about Medicaid recipients Rose attributed to him, albeit at a different time than the column implicitly suggested.
Denning has been an outspoken opponent of Medicaid expansion in Kansas, one of 14 states that have not expanded Medicaid under the Affordable Care Act.
In his ruling, Gurney said the statements Rose attributed to Denning were not exact quotations and, in any case, Denning had not established the falsehood of the views Rose attributed to him.
Nor, he said, had Denning proved malice, a requirement under the Kansas Public Speech Protection Act.
The act, which the Legislature passed in 2016, seeks to discourage abusive litigation aimed at chilling free speech. Kansas is one of 28 states that have passed such laws, known as anti-SLAPP laws. SLAPP stands for “strategic lawsuits against public participation,” or lawsuits that seek to intimidate and silence critics, and anti-SLAPP laws are meant to counter them.
Kansas’ Public Speech Protection Act goes beyond the actual malice requirement of the First Amendment enunciated by the U.S. Supreme Court in its landmark New York Times v. Sullivan case. Under the act, Denning was required to prove that The Star and Rose acted “with actual evil-mindedness or specific intent to injure.”
Gurney said that Denning had failed to prove either prong. He telegraphed how he was going to rule when, as Rose’s attorney was making his case, Gurney noted that Rose had written a lot of positive columns about Denning over the years and only a couple of negative ones.
"I can tell you I'm really glad I live in a country where there's still freedom of the press," Rose said after Gurney ruled. "In a lot of countries, that's going away. This is very satisfying to prevail and honestly, justice was served."
Denning was represented by Mike Kuckelman, who was elected earlier this year as chairman of the Kansas Republican Party. Neither Kuckelman nor Denning could immediately be reached for comment.
Under the Public Speech Protection Act, Rose is entitled to have Denning pay his legal fees, as is The Star. Gurney directed Rose's attorney to submit an invoice to Kuckelman listing his legal fees and costs in the case.
Dan Margolies is a senior reporter and editor at KCUR. You can reach him on Twitter @DanMargolies.