Kansas Sen. Jim Denning may be on the hook for about $90,000 in legal fees after a judge threw out his defamation claims against The Kansas City Star and former Star guest columnist Steve Rose.
That’s because the Kansas Public Speech Protection Act, which is meant to discourage lawsuits that chill free speech, allows prevailing parties to recover their costs of litigation and “reasonable attorney fees.”
The Star’s attorney, Bernie Rhodes of the Lathop Gage law firm in Kansas City, told KCUR that his tab ran to about $40,000 — although Rhodes said Denning is contesting it, which could drive up his fees even more. And Rose’s attorney, Eric Weslander of Stevens & Brand in Lawrence, told KCUR his fees amounted to about $48,000.
“Sen. Denning should have quit while he was behind and dropped his claim against Steve Rose after the court’s ruling on July 2 granting the Star’s motion to strike,” Weslander said in an email, referring to the court’s ruling earlier this month tossing Denning’s defamation claims against The Star.
“That would have saved significant additional legal fees on our end, but the senator didn’t learn his lesson the first time. One of the reasons we have free-speech protections like the anti-SLAPP act is to prevent journalists and other speakers from being deterred from the exercise of their rights by the threat of costly legal actions, so the statute worked as intended.”
SLAPP stands for “strategic lawsuits against public participation,” or lawsuits that seek to intimidate and silence critics who are exercising their First Amendment rights. The Kansas Public Speech Protection Act is known as an anti-SLAPP law because it seeks to deter such lawsuits.
The law was enacted in 2016 with Denning’s support. Twenty-seven other states have similar laws on the books.
Denning, an Overland Park Republican and the Kansas Senate majority leader, sued Rose and The Star two days after Rose wrote a column in January taking Denning to task for opposing Medicaid expansion. Rose resigned as an unpaid guest columnist for The Star around the same time Denning sued him.
Denning claimed Rose had put words in his mouth and falsely implied the two had conversed recently. He said the column had damaged his reputation.
On July 2, Johnson County District Judge Paul Gurney threw out Denning’s claims against The Star and, on Tuesday, he did the same for Denning’s claims against Rose. In both cases, Gurney ruled that Denning had failed to show that Rose’s column misstated his views or exhibited “actual malice,” as the anti-SLAPP law requires.
“Despite multiple opportunities to do so, Sen. Denning never denied the substance of the comments attributed to him by Steve Rose, and never denied holding the views described in the article,” Weslander said. “He only denied stating the exact words published, which the court rightly found were obviously paraphrased.”
For his part, Rhodes, The Star’s attorney, said of Denning’s defamation claims, “You can’t cry ‘fake news’ in a crowded theater and get away with it.”
Denning’s attorney, Mike Kuckelman, said his client was disappointed with the case's outcome.
“We feel strongly that a jury should make the decision about this case,” he said.
Kuckelman, who was elected chairman of the Kansas Republican Party in February, said Denning is weighing whether to appeal but has made no decision yet.
On the fee issue, Kuckelman said he didn’t believe the anti-SLAPP statute was meant to allow entities like The Kansas City Star to recover their legal fees.
“I don't think that statute was ever entirely intended to give someone like the Kansas City Star, a large entity like that, the right to seek fees against individuals,” Kuckelman said. “My understanding is that the legislation was passed with the idea of protecting individuals against large corporations – for example, people who want to post restaurant reviews and things like that online, so they couldn't be taken to task by a large corporation for expressing their First Amendment rights in that regard.”
Rhodes, speaking on behalf of The Star, said the Public Speech Protection Act’s plain language does not bar corporations, as opposed to individuals, from recovering their legal fees.
It’s not clear whether Denning will have to pay those fees out of his own pocket or whether, because he sued in his capacity as a senator, he can draw on campaign funds to do so.
Denning, 62, was elected to the Kansas Senate in 2012 after serving one term in the House. He was re-elected in 2016 with 52.7% of the vote. On his Senate website, he lists his occupation as health care administrator.
Kansas Rep. Cindy Holscher, an Overland Park Democrat, said in April that she will run for Denning’s seat. In her announcement, she cited Denning’s opposition to Medicaid expansion.
Correction: An earlier version of this story said that Kansas Rep. Cindy Holscher is from Olathe. She is from Overland Park.
Dan Margolies is a senior reporter and editor at KCUR. You can reach him on Twitter @DanMargolies.