This story was updated to include Sen. Jim Denning's comments.
The Kansas City Star came out swinging Friday in response to a defamation lawsuit filed last month by Kansas Senate Majority Leader Jim Denning.
The newspaper asked a Johnson County court judge to strike the lawsuit and penalize Denning, his attorney and the attorney’s law firm for violating the Kansas Public Speech Protection Act.
The act was passed in 2016 and aims to protect against “meritless lawsuits that chill free speech.” Such lawsuits are often called SLAPPs, which stands for “strategic lawsuits against public participation.”
Under the Kansas law, Denning would have 30 days to show that he has a likelihood of prevailing on his claims. If he doesn’t, the law calls for his lawsuit to be struck and for him to pay The Star’s legal fees.
“The anti-SLAPP act means the press no longer has to show up at a gunfight with a knife,” The Star’s attorney, Bernard Rhodes, told KCUR.
Denning, a Republican from Overland Park, sued The Star and Steve Rose late last month, accusing Rose, a longtime guest columnist for The Star, of falsely attributing statements to him about Medicaid expansion in a Jan. 26 column.
Denning said that contrary to the impression Rose gave in his column, Rose never interviewed him. He said he had not spoken to Rose since mid-2016.
After Denning’s chief of staff complained to Rose about the column, Rose, hoping to defuse the situation, told him in an email that if Denning would drop the matter, he would resign from The Star.
Rose handed in his resignation the same day the column ran, Rose told KCUR after Denning filed his lawsuit. The Star accepted his resignation the following Monday. But that didn’t appease Denning, who alleged in the suit that Rose’s column contained “numerous false statements which have exposed Senator Denning to public hatred, contempt and ridicule.”
Even if Denning’s allegations are accepted as true, he would have a high bar to overcome to prevail against The Star. Under what’s known as the “actual malice” standard established by the U.S. Supreme Court in a landmark 1964 case, Denning, as a public figure, would have to prove that The Star knew that the statements in Rose’s column were false or that The Star acted in reckless disregard of their truth or falsity.
In a sworn affidavit appended to The Star’s response, Rhodes, The Star’s attorney, notes that Denning has opposed Medicaid expansion. He also notes that Denning’s attorney, Michael Kuckelman, is seeking to become the state’s Republican chair at this weekend’s state GOP convention.
“In the face of this utter hypocrisy by Sen. Denning (and his lawyer), The Star has moved to strike Sen. Denning’s Petition under a law that Sen. Denning helped pass in 2016 …,” The Star argues in a brief accompanying its response. “The antics employed by Sen. Denning and Mr. Kuckelman are precisely the type of measure the Act was designed to punish. Sen. Denning’s Petition should therefore be struck, and he must be ordered to pay The Star’s attorney’s fees, and he and his lawyer and law firm must be sanctioned.”
Denning, in a statement late Friday afternoon, said he was surprised by The Star's claims.
“The Kansas City Star has admitted that Steve Rose’s article did not meet The Star’s own journalistic standards,” Denning said. “Likewise, Rose offered to resign from The Star if Iwould just drop the issue.”
Although Rhodes’ affidavit doesn’t explicitly say so, he implied that Denning and his attorney filed the lawsuit against The Star to further their political ambitions.
In his statement, Denning denied that he was motivated by political considerations.
“The Kansas City Star says this lawsuit is politically motivated, and I assure you it isn't," Denning said. “It's about journalistic integrity and telling the truth. The Star has repeatedly published incorrect and misleading articles about me and has attributed false statements to me. These aren't just claims I disagree with or don't like; they're false statements.” Denning added: “This lawsuit isn’t about getting some sort of political revenge. And it's not a coordinated effort to assure that Michael Kuckelman is the new state party chairman. That's absurd. This lawsuit is important, because it points out the sloppy, unethical and reckless article written by Steve Rose and published by The Star. It’s about making themanswer for it.”
While seeking to have Denning's lawsuit thrown out, The Star’s response does not try to justify Rose’s conduct.
In her own sworn affidavit, The Star’s editorial page editor, Colleen McCain Nelson, says that Rose’s original version of the column did not identify Denning by name, instead referring to him only as “(my) Kansas Senate friend.”
Nelson told Rose that, consistent with The Star’s Code of Ethics, he needed to identify the source of the statements in his column, according to her affidavit.
Rose then responded via email: “Ok, it’s State Sen. Jim Denning of Overland Park.”
Nelson emailed Rose back and asked: “So, I can attribute all of this to Denning? Add his name throughout?”
Rose responded: “He said it all, so, yes.”
Nelson declares in her affidavit that she then went on to edit Rose’s column to attribute the statements in the column to Denning.
“At the time I approved Mr. Rose’s column for publication, I had no reason to doubt — and did not doubt — that Sen. Denning was Mr. Rose’s source for each of the statements included in Mr. Rose’s column,” Nelson states in her affidavit.
She also denies Denning’s allegation that the column was published under “looming deadline” pressure.
She says Rose contacted her after the column ran in the paper to inform her that Denning’s staff had called about the column. It was only then she learned from Rose that he had not spoken to Denning — Rose told her they hadn’t talked in nine months.
Nelson then emailed Rose, according to her affidavit, stating that “The column was misleading at best and gave readers (and me) the impression that Denning said this recently. The lede even says that he ‘finally confessed’ this, certainly suggesting that this happened in the not-too-distant past.”
Rose responded: “I see the gravity of all of this. Let’s cancel my column.”
On the following Monday, Nelson says she emailed Denning’s chief of staff and informed him that Rose’s column did not meet The Star’s standards.
Nelson says she only learned that Denning had sued The Star when his spokesman sent out an email blast that afternoon — more than an hour and a half after she’d emailed his chief of staff — announcing the lawsuit.
Dan Margolies is a senior reporter and editor at KCUR. You can reach him on Twitter @DanMargolies.