Opinion:Yates v. Gannett Co., 2022 OK CIV APP 41
Subject Matter:First Amendment Torts
Date Decided:November 15, 2021
Trial Court:District Court of Rogers County; Judge Condren
Route to this Court:Appellant Travis Yates, a Tulsa police major, appeals the trial court’s February 22, 2021 Order granting the media Appellees’ Motions to Dismiss his claims for defamation, intentional infliction of emotional distress, false light invasion of privacy, and malicious wrong pursuant to the Oklahoma Citizens Participation Act (“OCPA”), 12 O.S. §§ 1430 et seq. Yates’ suit also challenged the constitutionality of the OCPA.
Facts:This appeal arose out of an action for defamation, intentional infliction of emotional distress, false light invasion of privacy and malicious wrong. Appellant initiated the action against Appellees Gannett Co., Inc. (“Gannett”) et al. after Appellees published, in a series of independent but successive articles, accounts of a June 8, 2020 radio interview in which the Appellant fielded many questions about policing, protests, and the use of force. Appellant alleged that the Appellees’ articles and headlines distorted his words and falsely inferred he was a “racist cop.”
Public Radio Tulsa (“PRT”) published and marketed a story by Chris Polansky, a PRT employee, entitled “TPD Major: Police Shoot Black Americans ‘Less Than We Probably Ought To.'” The PRT article mentions the Appellant’s race and highlights–via hyperlinking to articles unrelated to Appellant’s June 8, 2020 radio interview–that the Appellant “is no stranger to racial controversy.” Two days after PRT published and marketed Polansky’s story, NBCUniversal Media, LLC (“NBCU”) published a story of its own. After several introductory paragraphs, the NBCU article (like Polansky’s) quoted the entirety of the Appellant’s statement. Unlike the PRT article, however, the NBCU article’s headline reads: “African Americans ‘probably ought to be’ shot more by police, a Top Tulsa officer said.”

The next day, the Gannett-owned USA Today published another story rehashing the details. Its headline, not unlike the NBC article, reads: “Oklahoma cop faces backlash but won’t apologize after saying African Americans ‘probably ought to be’ shot more by police.” Despite its rather provocative opening, the USA Today article, like both of the articles published before it, went on to provide context and quoted Appellant verbatim. The trial court agreed and dismissed Appellant’s action under the OCPA. The trial court denied Appellant’s challenge to the OCPA on grounds that this Court already addressed the Act’s constitutionality in Krimbill, 2018 OK CIV APP 37.
Standard of Review:Pursuant to this Court’s holding in Krimbill, 2018 OK CIV APP 37, ¶ 4, the Court applied the de novo appellate standard of review. In Krimbill, the Court held “that the OCPA provides a new summary process/dismissal procedure in certain cases [and that] Oklahoma appellate courts have reviewed decisions pursuant to such procedures by a de novo standard.” Id. The OCPA dismissal procedure “requires dismissal if a plaintiff fails to show a prima facie case, and is hence similar to a motion for directed verdict,” challenges to which “also are reviewed de novo.” Id. The Court applied a de novo standard of appellate review under “existing precedent and persuasive authority.” Id.
The constitutionality of the OCPA also is at issue in this appeal, which is a question of law to be reviewed de novo. Lee v. Bueno, 2016 OK 97, ¶ 6. When considering the constitutional validity of a statute, this Court does not consider policy. Id. ¶ 8. The Court was guided by well-established principles, including that “[a] legislative act is presumed to be constitutional and will be upheld unless it is clearly, palpably[,] and plainly inconsistent with the [Oklahoma] Constitution.” Id. ¶ 7.
Analysis:In this case, the Court determined that the overarching question was whether the OCPA justified the trial court’s order granting Gannett’s Motions to Dismiss Yates’s claims for failing to establish by clear and specific evidence a prima facie case for each essential element of the claim in question.

First, the OCPA did apply because, according to Krimbill v. Talarico, 2018 OK CIV APP 37, the act’s dismissal procedure can be invoked when the plaintiff’s claim “is based on, relates to, or is in response to the exercise of the right of free speech . . .” Here, the Court found that the articles and headlines addressed matters of public concern and that they were written in response to Yates’s public statements regarding policing and the community well-being, which are couched in the definition of matters of public concern under OCPA. Then, the Court turned to Yates’s burden of proof to provide prima facie evidence on all his claims for defamation, intentional infliction of emotional distress, false light invasion of privacy and malicious wrong.

Applying Oklahoma law,Yates needed to show that there was (1) a false and defamatory statement, (2) an unprivileged publication to a third party, (3) fault amounting at least to negligence on the part of the publisher, and (4) the existence of special damage caused by the publication, as well as that these be done with actual malice. The Court determined that Yates failed because the articles published did not contain statements that were materially false, and were thus not actionable. Although the articles played fast and loose with Yates’s statements, not one of the statements was demonstrably false.

For Yate’s claim for intentional infliction of emotional distress, the Court held that although Yates alleged the headlines and articles were extreme and outrageous, in reality they were straight from the horse’s mouth, i.e., accurate rearticulations of his own words. 

In regard to Yates’s claim of false light invasion of property, the Court emphasized that in order to win on this claim, the facts must not be of a public concern. Sturgeon v. Retherford Publications, Inc., 1999 OK CIV APP 78, ¶ 26. Thus, this claim was quickly disregarded because Yates’s statements about police work were clearly matters of public concern.

Finally, the Court dealt with Yates’s obscure tort claim of malicious wrong. In Magnum Electric Co. v. Border, 1923 OK 547, ¶ 9, the Oklahoma Supreme Court defined this tort as “the intentional doing of that which is calculated in the ordinary course of events to damage, and which does, in fact, damage another, or that other person’s property or trade . . . if done without just cause or excuse.” Because there is no other guiding case law on the topic, the Court decided not to bring back to life the tort’s “dry bones” to extend to the facts of this case.

Because the OCPA has been deemed constitutional in a previous action, and that the statute was to be looked at in a positive light to be construed in a way that renders it constitutional under the Oklahoma Constitution, the Court affirmed that the OCPA was and is constitutional.
Vote:3-0. Mitchell, J. Swinton, C.J., and Prince, J. (author) concur.
Other:It is perhaps unclear whether the tort doctrine of malicious wrong was struck down by the Court of Civil Appeals altogether, or whether it simply refused to apply the obscure and 100-year-old tort to the facts in this case. Either way, it seems that if one wishes to allege malicious wrong against another, the plaintiff would not be likely to win on that doctrine alone.