Kansas Sen. Jim Denning’s defamation lawsuit against The Kansas City Star should be thrown out because the First Amendment protects even untruthful speech, the newspaper asserted in a court filing Wednesday.
In a brief supporting its motion made last month to strike Denning’s petition, The Star says that Denning would be unable to show that the newspaper acted with “actual malice” when it published a column by unpaid guest columnist Steve Rose about Denning’s opposition to Medicaid expansion.
“As such,” The Star contends, “Sen. Denning’s assertion that Steve Rose’s column is untrue does nothing to establish that The Star acted with actual malice.”
The U.S. Supreme Court, in its landmark 1964 New York Times v. Sullivan decision, unanimously ruled that in order to prove libel, a public official must show that the allegedly libelous statements were made with “actual malice” – that is, with knowledge that they were false or with reckless disregard for whether they were false or not.
Denning, a Republican from Overland Park and the Kansas Senate majority leader, sued The Star and Rose in January, claiming Rose’s Jan. 26 column attributed statements to Denning that he didn’t make and falsely implied that he made them in a recent conversation with Rose. Denning alleged the column, titled “Why hasn’t Kansas expanded Medicaid? This GOP leader has a long list of excuses,” had exposed him “to public hatred, contempt and ridicule.”
Rose resigned as a Star columnist 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.
The Star last month asked a Johnson County judge to strike Denning’s lawsuit and penalize Denning and his attorney for violating the Kansas Public Speech Protection Act. Denning’s attorney is Michael Kuckelman, who was elected Kansas state GOP chairman last month.
Kuckelman did not immediately respond to a request for comment about The Star’s brief.
The Kansas Public Speech Protection Act, which the Legislature enacted in 2016, seeks to discourage abusive litigation aimed at chilling free speech. Kansas is one of 28 states that have passed such acts, 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. Under the act, Denning would have to show that the newspaper acted “with actual evil-mindedness or specific intent to injure,” The Star contends in its brief.
It says Denning can’t meet either the First Amendment or Public Speech Protection Act standard because The Star’s editorial page editor, Colleen McCain Nelson, had no reason to doubt the accuracy of Rose’s column when she approved its publication.
Beyond that, The Star says, Denning has never changed his mind about Medicaid expansion. (Kansas is one of 14 states that have not expanded Medicaid under the Affordable Care Act. The Kansas House on Wednesday approved Gov. Laura Kelly’s Medicaid expansion proposal and advanced it for a final vote today. It would still need approval by the Senate to become law.)
“As such,” The Star says, “it is impossible for Sen. Denning to show that any of the unnamed and unidentified ‘members of the public [who have] express[ed] hatred, contempt, and ridicule towards’ him … did so because of any particular statement he claims Mr. Rose falsely attributed to him, or simply because he continues to oppose Medicaid expansion, something Mr. Rose’s column noted would benefit 150,000 Kansans.”
Dan Margolies is a senior reporter and editor at KCUR. You can reach him on Twitter @DanMargolies.