This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-00-1533

 

Robin Thomas Partch,
Appellant,

vs.

Hubbard Broadcasting, Inc.,
d/b/a KSTP-TV, Inc.,
Respondent,
The Star Tribune Company, a
subsidiary of the McClatchy Company,
Respondent.

 

Filed March 6, 2001

Reversed and remanded

Stoneburner, Judge

 

Hennepin County District Court

File No. PI9915738

 

 

Patrick T. Tierney, Collins, Buckley, Sauntry & Haugh, P.L.L.P., W-1100 First National Bank Building, St. Paul, MN 55101 (for appellant)

 

Paul R. Hannah, Hannah & Jasperson, 2625 Firstar Center, 101 East Fifth Street, St. Paul, MN 55101 (for respondent Hubbard Broadcasting, Inc.)

 

John P. Borger, Faegre & Benson, LLP, 2200 Wells Fargo Center, 90 South 7th Street, Minneapolis, MN 55402; and

 

Randy M. Lebedoff, Star Tribune Company, 425 Portland Avenue, Minneapolis, MN 55488 (for respondent Star Tribune)

 

            Considered and decided by Stoneburner, Presiding Judge, Lansing, Judge, and Peterson, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

Appellant Robin Partch brought a defamation action against respondents Hubbard Broadcasting, Inc., d/b/a KSTP-TV and the Minneapolis Star Tribune for publishing statements that Partch, who was charged with criminal sexual conduct in the second degree, had been accused of “having sex” with a 12-year-old female student.  The conduct alleged in the complaint was that Partch touched a student in the breast area over her clothing during a computer technology class.  The district court granted summary judgment in favor of respondents.  Because the “gist” or “sting” of respondents’ statements is not substantially true, we reverse and remand.

FACTS

 

            The parties do not dispute the underlying facts.  On July 6, 1998, appellant Robin Partch, a Redwood Falls schoolteacher, was charged with criminal sexual conduct in the second degree for allegedly touching a 12-year-old student in the breast area over her clothing while she and other students were working on computers in a technology class taught by Partch.  The incident was alleged to have occurred in the spring of 1998.  The Redwood Gazette published an article reporting that Partch had been charged with criminal sexual conduct in the second degree.  The article did not describe the conduct that formed the basis of the charge.  The case was set for trial, but the charges against Partch were continued for dismissal and ultimately dismissed in July 1999.

      KSTP-TV broadcast

On the day the Redwood Gazette printed its article, respondent KSTP received an anonymous call on its tipline.  The caller read portions of the Redwood Falls newspaper article about the charge against Partch.  A copy of the Redwood Gazette’s article was anonymously faxed to KSTP.  KSTP’s daytime assignment editor made five telephone calls to Redwood Falls the next morning seeking more information and a copy of the criminal complaint.  KSTP was unable to obtain the complaint or any additional information about the charge.  KSTP broadcast the following report during its 6:00 p.m. newscast:

Another Minnesota teacher is charged with having sex with a girl at a school in Redwood Falls.  Robin Partch of McGregor is a technology teacher at Redwood Valley Middle School.  The 53-year-old is accused of having sex with a girl in the technology classroom on May 26th.  The girl is under the age of 13.  If convicted . . . Partch faces up to 25-years in prison and a 35-thousand dollar fine.

 

(Emphasis added.) 

 

      Star Tribune article

 

            After hearing the KSTP newscast, respondent Star Tribune assigned a reporter to research the matter.  The Star Tribune reporter spoke with the Redwood Falls County Attorney, but the county attorney did not elaborate on Partch’s charges or his alleged conduct, nor did the county attorney provide the reporter with a copy of the criminal complaint.  The reporter then spoke with someone at the Redwood Gazette, who faxed her a copy of the article published the day before.  The Star Tribune reporter did not investigate further and drafted an article indicating that Partch had been charged with “having sexual relations” with one of his female students.  A Star Tribune copy editor later shortened the phrase to “having sex.”  On July 29, the Star Tribune published an article in its metro section, which read:

Teacher accused of having sex with student

A middle school teacher in Redwood Falls, Minn., has been charged with second-degree criminal sexual conduct for having sex with a girl who at the time of the incident was younger than 13. 

Robin T. Partch, 53, of McGregor, Minn., is a technology teacher at Redwood Valley Middle School. * * * Partch was charged July 7 in connection with an incident that allegedly happened in the classroom in late May.

 

(Emphasis added.)[1]  After the Star Tribune published the article, a Redwood County assistant county attorney notified the newspaper that its statement “having sex with a girl” was inaccurate and the Star Tribune printed a retraction on August 5, 1998, using terminology suggested by the assistant county attorney and Partch’s counsel.  The retraction clarified that Partch “was charged with second-degree criminal sexual conduct for having sexual contact with the student.”

D E C I S I O N

 

On appeal from summary judgment, the reviewing court asks whether there are any genuine issues of material fact to be determined and whether the district court erred in its application of the law.  O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn. 1996).  A reviewing court need not defer to the district court’s application of the law when the material facts are not in dispute.  Hubred v. Control Data Corp., 442 N.W.2d 308, 310  (Minn. 1989).  

I.

To be defamatory a statement must be communicated, false, and tend to harm the plaintiff’s reputation.  Ferrell v. Cross, 557 N.W.2d 560, 565 (Minn. 1997); Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980); see, e.g., Foley v. WCCO Television, Inc., 449 N.W.2d 497, 500 (Minn. App. 1989) (explaining that plaintiff bears burden of proving each element in defamation claim), review denied (Minn. Feb. 9, 1990).  “[T]rue statements, however disparaging, are not actionable.”  Stuempges, 297 N.W.2d at 255.  The truth must go not only to the accuracy of the statement, but its underlying implications as well.  Lewis v. Equitable Life Assurance Soc’y, 389 N.W.2d 876, 889 (Minn. 1986).  Generally, “the truth or falsity of a statement is inherently within the province of a jury.”  Lewis, 389 N.W.2d at 889.  But if the underlying facts are not in dispute, the issue of whether the statements are substantially accurate is a question of law for the court.  Jadwin v. Minneapolis Star & Tribune Co., 390 N.W.2d 437, 441 (Minn. App. 1986).  To prove falsity, a plaintiff cannot merely show that the statement is not literally true in every detail.  IdMinor inaccuracies and details are not significant if the statement is “true in substance.”  Jadwin, 390 N.W.2d at 441. 

            The issue before us is whether respondents’ statements are substantially true.  We consider a statement substantially true “if its gist or sting is true, that is, if it produces the same effect on the mind of the recipient which the precise truth would have produced.”  Id. (quotation omitted).[2]  Partch argues that the gist or sting of respondents’ statements that he was accused of “having sex” with a student is not a substantially true portrayal of touching a student on the outside of her clothing in the breast area.  After applying the substantial-truth test from Jadwin, the district court concluded that

[t]he gist of the statements [is] true because “having sex with a girl” under the age of 13 can include the touching of intimate body parts. * * * The sting of the statements is that a public middle-school teacher abused his position by allegedly having sexual contact with a female student in a classroom during the school day.

 

The district court reasoned that the actual truth and the statement “having sex” were separate points on a spectrum, and therefore the distinction between Partch’s alleged conduct and respondents’ statements is “one of degree and not kind.”

Respondents contend that the district court correctly ruled that the statement “having sex with a girl” is a substantially accurate representation of Partch’s alleged conduct.  Respondents cite dictionaries and caselaw that appear to construe the term “sex” broadly.[3]  Nonetheless, one dictionary defines “sex” as “to have sex, to engage in sexual intercourse.”  Random House Dictionary of English Language (2d ed. 1987) (emphasis added).  Another dictionary defines “sex” as “sexual intercourse,” meaning “[c]oitus [sexual union between a male and a female involving insertion of the penis into the vagina].”  American Heritage Dictionary of the English Language (3d ed. 1992).  Further, upon close scrutiny, respondents cite to cases that primarily deal with “sexual relations” or “sexual contact,” not expressly with “having sex.”

            In addition, other sources conflict with respondents’ expansive reading of the term “sex,” recognizing that “having sex” denotes sexual intercourse or genital/oral copulation.  See Krisztina Morvai, What is Missing from the Rhetoric of Choice? A Feminist Analysis of the Abortion Dilemma in the Context of Sexuality, 5 UCLA Women’s L. J. 445, 460-61 (1995) (“In the dominant culture of the Western World, sex is equated with heterosexual intercourse. * * * ‘[S]ex’ is vaginal intercourse according to the common definition.”); see generally Domaingue v. MacDonald, 978 F. Supp. 53, 57 (D. Mass. 1997) (noting daughter testified that she had sex with her father where she explained “he put his penis in my vagina”); Iowa v. Martens, 569 N.W.2d 482, 485 (Iowa 1997) (recognizing statute defines “sex act” as requiring sexual contact between finger or hand of one person with genitalia of another, and the court noted breast not considered genitalia); Massachusetts v. Titus, 587 N.E.2d 800, 805 (Mass. Ct. App. 1992) (indicating jury could infer penetration from daughter’s repeated use of term “sex”); City of S. Euclid v. Richardson, 551 N.E.2d 606, 609 (Ohio 1990) (recognizing “sexual conduct” defined as vaginal intercourse between a male and female, and anal intercourse, fellatio, and cunnilingus); Lefevers v. Texas, 20 S.W.3d 707, 711-12 (Tex. Crim. App. 2000) (finding “ultimate sex act” requires genital or anal contact); Lawson v. Virginia, 409 S.E.2d 466, 468 (Va. Ct. App. 1991) (indicating victim explained appellant “had sex” with her where he put his penis inside her vagina).

The chief question under Jadwin is whether the statement produced the same effect on the mind of the recipient as would the precise truth.  Jadwin,390 N.W.2d at 441.  Here, KSTP viewers and Star Tribune readers were told Partch was accused of “having sex” with a 12-year old girl in his class.  “Having sex” implies traditional sexual intercourse or at least some genital contact far beyond a touch on the outside of clothing in the breast area.  Here, Partch’s alleged conduct did not involve intercourse or genital contact as the report implied.  The gist or sting of the statement gave recipients the impression that Partch had engaged in sexual activity far beyond the scope of the actual allegations.  Under Jadwin, respondents’ statements are not substantially true.

Respondents also argue that while their statements may lack technical accuracy, they are substantially true with respect to the charges against Partch.  In support of this contention, respondents cite several cases where defamation was forestalled because the disputed statement was substantially true, albeit technically inaccurate.  The common thread among these cases, however, is that the distinction between the statement and the actual truth was minimal.  For example, defamation was not established by a statement describing a father as having kidnapped his son, even though the father’s actions did not constitute the specific criminal offense of kidnapping in Colorado.  See Anderson v. Cramlet, 789 F.2d 840, 844-45 (10th Cir. 1986).  Another example includes a newspaper article stating that the plaintiff received stolen property valued at $50,000, when in fact it was only valued at $505.  See Wiesburgh v. Mahady, 511 A.2d 304, 306 (Vt. 1986) (determining effect the same where sting of report was arrest for stolen property, not the amount).  Respondents cite a case in which a defamation action failed following a newspaper report that the plaintiff was convicted of firing a gun during a dispute with a motorist, even though he was only convicted of exhibiting a gun.  See Read v. Phoenix Newspapers, Inc., 819 P.2d 939, 941-42 (Ariz. 1991).  In ruling the statement was not defamatory, however, the Arizona Supreme Court held that the statement was substantially true because the plaintiff had in fact discharged a gun during the dispute.  Id. at 942.  KSTP cites Simonson v. United Press Int’l, Inc., 654 F.2d 478 (7th Cir. 1981), for the proposition that it was not defamatory for a newspaper to report a person was charged with rape when he was actually only charged with second-degree sexual assault.  KSTP misstates the holding of Simonson, as there the record “made it clear that rape [intercourse without consent] had occurred.”  654 F.2d at 481-82 & n.9.

Respondents also cite Hovey v. Iowa State Daily Publ’n Bd., 372 N.W.2d 253, 254 (Iowa 1985), where an action for defamation was filed after a newspaper reported that a man had raped a female bartender and was charged with second-degree sexual assault.  The man’s conduct involved forcing the bartender to perform oral sex on him.  Id.  In finding no actionable defamation, the Iowa Supreme Court ruled that the reported truth (rape) was substantially true when compared with the actual truth (forced performance of oral sex).  Id. at 256.  What distinguishes the circumstances in Hovey from the case before us is that “rape” may reasonably encompass forced oral sex, whereas “having sex” does not reasonably contemplate Partch’s alleged conduct of touching a student in the area of her breast on the outside of her clothing during class.  Partch’s alleged conduct was sufficiently egregious to prompt the serious charge against him and to cause community concern, but such conduct should be accurately characterized in news reports.

II.

Although respondents briefed the issue of actual malice and Partch responded in his reply brief, the district court did not reach this issue.  We decline to address matters not argued and considered in the court below.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988); see Brett v. Watts, 601 N.W.2d 199, 201 (Minn. App. 1999) (“Only matters considered by the district court may be submitted on appeal.”), review denied (Minn. Nov. 17, 1999).  Because the district court did not reach the question of actual malice, we refrain from reviewing this issue. 

Reversed and remanded.

 



[1] The Star Tribune ran a virtually identical article in its statewide edition.

[2] Professor Prosser states:

 

[I]t is not necessary to prove the literal truth of the accusation in every detail, and that it is sufficient [in defending against a defamation action] to show that the imputation is substantially true, or, as it is often put, to justify the “gist,” the “sting,” or the “substantial truth” of the defamation. 

 

W. Page Keeton et. al., Prosser and Keeton on the Law of Torts § 116, at 842 (5th ed. 1984).

[3] Respondents separate the word “sex” from its context in the phrase “having sex,” which distorts the true impact of the statement and its impression on the mind of the recipient.  In isolation, the term “sex” may conjure a variety of meanings, but “having sex” applies to a narrower range of activity.  The phrase “having sex” is likely the truncated form of “having sexual intercourse.”