This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Larry Dean Burgoon,
Edward P. Delahunt, Jr., et al.,
Filed December 5, 2000
Hubbard County District Court
File No. C499296
Thomas L. D’Albani, Cann, Haskell, D’Albani & Schueppert, P.A., 205 Seventh Street, Bemidji, MN 56601 (for appellant)
Terrance W. Moore, 4570 West 77th Street, Suite 100, Minneapolis, MN 55435 (for respondents)
Considered and decided by Stoneburner, Presiding Judge, Foley, Judge, and Mulally, Judge.**
U N P U B L I S H E D O P I N I O N
On appeal from summary judgment, appellant Larry Burgoon, a public figure, challenges the district court’s determination that respondents Bernadine Schumacher, Edward Delahunt, and Delahunt Broadcasting Corporation did not defame him as a matter of law. Burgoon contends that there are genuine issues of material fact that make summary judgment inappropriate. Because the statements are not defamatory, even when considered in the light most favorable to Burgoon, we affirm.
In 1992, Larry Burgoon attended a convention of the Association of Minnesota Counties (AMC) in his capacity as a Hubbard County commissioner. After the convention, AMC’s attorney sent Burgoon a letter informing him that he was henceforth barred from attending AMC functions, based on his inappropriate behavior at the convention. The letter described his conduct as follows:
At the recent [AMC] Annual Conference, which you attended, you engaged in numerous behaviors which are documented, corroborated, and investigated and have been determined by the Board for the [AMC] to be totally outside the boundaries of acceptable behaviors for an attendee at AMC functions. You came up behind an AMC employee and grabbed her and did a pelvic thrust into her backside. You approached another AMC employee with sexual talk and when she told you she was married, you made the extremely offensive comment of “Since when does a ring plug a hole.” These are but two examples of the numerous inappropriate behaviors in which you engaged with employees, participants, and wives of attendees.
Burgoon did not seek re-election to the county board in 1994, but ran again in 1998. Respondent Edward Delahunt, owner of respondent broadcasting corporation, was running for re-election to a different seat on the county board; he was strongly opposed to Burgoon’s election. The election was to occur on November 3, 1998.
Respondent Bernadine Schumacher, Delahunt’s daughter, and Delahunt work at the corporation’s radio station, KDKK. During the campaign, Schumacher and Delahunt became aware of the 1992 AMC letter. Over a three-week period in July 1998, Schumacher investigated Burgoon’s banishment from AMC events, and she reported the story on the radio in August 1998. In August, a local newspaper printed an article on the topic.
In August 1998, Delahunt told several people Burgoon was a sexual predator, giving one of them copies of the 1992 AMC letter. On October 21, 1998, Schumacher hosted a live call-in radio show on KDKK called “Coffeetime” in which listeners could call in and express their opinions on a wide range of issues. As part of this program, Schumacher read a letter to the editor of a local paper accusing Burgoon’s opponent of missing a candidate’s forum. Schumacher said in response to the letter that Burgoon’s opponent was very ill the night of the forum. She continued, saying words to the effect that “speaking of sick, * * * Mr. Burgoon is the sick individual here.” She then referred to the fact that she believed Burgoon was a sexual predator because of his inappropriate sexual behavior at AMC meetings and conventions. She stated that she had a letter to prove it, although she did not read the letter on the air. The next day, Schumacher sent Burgoon a letter describing her statements and giving him the opportunity to respond to her comments on the air, but Burgoon never accepted this offer.
Burgoon sued Delahunt and Schumacher for defamation and sued the broadcasting company under a vicarious liability theory. Finding it undisputed that Burgoon was a public figure and taking as true that Delahunt and Schumacher referred to him as a sexual predator, the district court granted summary judgment in favor of respondents.
When reviewing the district court’s summary judgment decision, an appellate court must ask whether any genuine issues of material fact exist and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).
A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law. Minn. R. Civ. P. 56.03. On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.
Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted).
[T]here is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.
DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). “[T]he party resisting summary judgment must do more than rest on mere averments.” Id. A genuine issue for trial “must be established by substantial evidence.” Id. at 70 (quoting Murphy v. Country House, Inc., 307 Minn. 344, 351, 240 N.W.2d 507, 512 (1976)).
A public official may not recover for a defamatory falsehood relating to official conduct unless there is proof the statement was made with “actual malice.” New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 726 (1964). This doctrine “has its fullest and most urgent application precisely to the conduct of campaigns for political office.” Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S. Ct. 621, 625 (1971); see Valento v. Ulrich, 402 N.W.2d 809, 812 (Minn. App. 1987) (applying public official defamation standard to statements made about candidate for re-election during election campaign). The Supreme Court found it “of the utmost consequence that the people should discuss the character and qualifications of candidates[.]” Monitor, 401 U.S. at 271, n.3, 91 S. Ct. at 625 n.3 (citation omitted). Such division is so important that it more than counterbalances “occasional injury to the reputations of individuals * * *, although at times such injury may be great.” Id. (citation omitted).
Burgoon does not dispute that he was a public figure for purposes of his defamation action; he was a candidate for office at the time the alleged defamatory statements were made.
A public figure defamation plaintiff must show that a defendant’s statements were defamatory and demonstrate, by clear and convincing evidence, that the defendant made the statements with actual malice, that is, either knowing that they were false or with reckless disregard for whether they were true.
Hunter v. Hartman, 545 N.W.2d 699, 705 (Minn. App. 1996) (citations and footnote omitted), review denied (Minn. June 19, 1996). This applies even to statements that could be considered defamatory per se. Id. at 705 n.2. The issue of whether the evidence in the record is sufficient to support a finding of actual malice is a question of law. Diesin v. Hessburg, 455 N.W.2d 446, 464 (Minn. 1990).
We first address whether the district court properly granted summary judgment on Burgoon’s claim that Schumacher defamed him when, during her radio talk show, she called him a “sexual predator.” In determining whether a statement made about a public figure is false, this court considers whether the statement can be considered as opinion, hyperbole, or substantial truth. Hunter, 545 N.W.2d at 706. After applying these doctrines, and considering the context in which the statements were made, a court may determine that comments about a public figure are nonactionable as a matter of law for lack of provably false statements of facts. Id. At least as to a public figure, such comments may “fall within a genre of imaginative or critical commentary afforded particular protection under the First Amendment.” Id.
The analysis in Hunter is particularly pertinent because the alleged defamatory statement there was made in the context of a live radio call-in show, as was the case here. Id. at 705. The show, which addressed the topic of sports, was characterized as “full of heartfelt but opposing opinions and the dynamic rhetoric of sports commentary.” Id. As the district court noted, the comment Schumacher made during the talk show
while discussing politics occurring during a pre-election period seems no less spontaneous, opinionated, dynamic, confrontational, intemperate and informal than a sports talk show.
This context can protect a statement, which might otherwise be considered defamatory, as hyperbole if it “would lead even the most careless listener to perceive the remark as exaggerated or imaginative commentary.” Id. at 706 (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 16-17, 110 S. Ct. 2695, 2704-05 (1990)). We agree with the district court that the comment can fairly be categorized hyperbole interpreting the 1992 AMC letter.
Similarly, as to opinion, commentary on a talk show about candidates shortly before the election will generate the exchange of “vehemently held opinions,” which must be taken “with a grain of salt.” See Hunter, 545 N.W.2d at 709 (citations omitted). Schumacher had the constitutional right to express her opinion of Burgoon’s character and the public had an interest in hearing her statement. See Monitor, 401 U.S. at 271 n.3, 91 S. Ct. at 625 n.3 (noting that citizens must feel free to discuss character of political candidates even at the cost of injury to the candidates’ reputation). Such exchange of ideas is precisely what the First Amendment was intended to protect. See id. at 272-73, 91 S. Ct. at 625.
Finally, we examine the statement to determine whether it is “substantially true.” Hunter, 545 N.W.2d at 707; see Oaks Gallery v. Lee Enters., Inc., 613 N.W.2d 800, 803 (Minn. App. 2000) (noting statement will be considered substantially accurate if “gist or sting” is true) (citation omitted), review denied (Minn. Sept. 13, 2000). “[R]emarks on a subject lending itself to multiple interpretations” cannot form the basis for a defamation action because “no threshold showing of ‘falsity’ is possible in such circumstances.” Hunter, 545 N.W.2d at 707 (citations omitted). The district court here looked at the definition of “sexual” and “predator” to conclude, “a reasonable person could use such definitions as figures of speech to describe the behavior outlined in the AMC letter.” For example, “predator” is defined to include “[o]ne that victimizes, plunders, or destroys, especially for one’s own gain.” The American Heritage Dictionary 1426 (3d. ed. 1992). The statement could certainly be used in a more pejorative sense. See In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994) (addressing predatory sex impulse in context of psychopathic personality commitment); Minn. Stat. § 609.108, subd. 1(a)(1) (1998) (authorizing increased sentences when there is a showing of “predatory pattern of behavior that had criminal sexual conduct as its goal” and other factors met). The statement is subject to multiple interpretations and we agree with the district court.
Schumacher’s statement falls within the doctrines of hyperbole, opinion, and substantial truth. It was made within the context of a radio show, during Burgoon’s candidacy for a county board position, and it was triggered by a citizen’s letter to the editor criticizing Burgoon’s opponent. In this context, “the statement was not sufficiently false as a matter of law to support a defamation claim.” Hunter, 545 N.W.2d at 709.
II. Delahunt’s Statements
Burgoon claims that Delahunt defamed him by telling several people that he was a “sexual predator.” While these statements were not made in the context of a radio show, the district court’s analysis as to Burgoon’s status as a public figure and statements made during an election campaign is proper, and the statements were not actionable. Thus, the district court properly granted summary judgment in favor of Delahunt.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
** Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 Although Delahunt does not agree with this version of the facts, it is taken as true for purposes of the summary judgment analysis.
 If the statements made about Burgoon were considered to be false ones imputing criminal sexual conduct to him, they could be considered defamatory per se. See Boutin v. LeFleur, 591 N.W.2d 711, 718 (Minn.) (noting that being labeled as “predatory offender” is injurious to reputation), cert. denied, 120 S. Ct. 417 (1999).
 There appears to be no dispute that the broadcasting corporation, Schumacher’s employer, would be vicariously liable for wrongful acts committed within the scope of her employment. Oelschlager v. Magnuson, 528 N.W.2d 895, 902 (Minn. App. 1995), review denied (Minn. Apr. 27, 1995).