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Maine Court Rules That Undercover Game Warden is a “Public Figure”

Must Allege Specific Facts to Plead "Actual Malice"

By Benjamin S. Piper, Sigmund D. Schutz and Jonathan S. Piper

A Maine Superior Court held that an undercover game warden qualified as a public figure, and dismissed his claims because he had not pled facts sufficient to make a claim of actual malice. Livezey v. MTM Acquisition, Inc., BCD-CV-18-22 (Business & Consumer Docket). The orders are available here. Maine is a notice pleading state that has not adopted the Iqbal/Twombly pleading standard, but the decision stands out for the court's close scrutiny of the facts alleged in plaintiff's complaint. In Maine, pleadings that merely recite the elements of actual malice and attribute that conduct to the defendant in a conclusory manner will not suffice.

Background

The case arose from a series of more than two dozen investigative reports published by the Portland Press Herald/Maine Sunday Telegram headlined "North Woods Lawless." The extensively sourced articles detailed aggressive undercover law enforcement tactics by the Maine Warden Service in a sting operation to prosecute residents of Allagash, Maine (population: +/-250) for violating fish, game, and other laws.

The undercover Game Warden, William Livezey, posed as a hunter from Pennsylvania and was reported to have "done his best to tempt locals into violating. . . laws" by, among other things, providing a target with a rifle and ammunition during illegal night hunting expeditions. The Press Herald's reporting led to a community outcry, hearings before the Maine Legislature, and ultimately the suspension of Warden Service undercover operations. The reporting also raised questions about whether the Warden Service may have hyped its activities to make better television for Animal Planet's popular but discontinued "North Woods Law" TV show.

Former Undercover Game Warden Files Defamation Action

Livezey filed a defamation action alleging that the Press Herald published false and defamatory statements concerning his involvement in the Allagash undercover operation and previous allegations of entrapment made against him. The Press Herald moved to dismiss the complaint on the grounds that (a) Livezey was a public-figure but failed to allege facts that constitute actual malice; and (b) the alleged statements did not convey defamatory meaning as a matter of law.

Although the Livezey had pleaded that the Press Herald published the allegedly defamatory statements with knowledge of their falsity or with reckless disregard for the truth, the newspaper argued that he pleaded no facts to support that conclusion. In response, Livezey argued that under Maine's notice pleading standard, his recitation of the elements of actual malice was sufficient.

Maine Superior Court Justice M. Michaela Murphy agreed with the Press Herald, ruling that if "there are no factual allegations to support the conclusion that [defendant] acted with actual malice, then the Complaint should be dismissed, regardless of [plaintiff]'s characterization of [defendant's] employees' states of mind" when they published the allegedly defamatory statements.

For each allegedly defamatory statement, the court analyzed whether the complaint pleaded facts that, if true, supported the conclusion that the Press Herald published the statement knowing it to be false or with reckless disregard for its truth or falsity. The court concluded that the plaintiff pleaded no facts evincing actual malice for any of the alleged statements.

Of note, several of the allegedly statements were Press Herald journalists' interpretations of an excerpt from an earlier Maine Supreme Court opinion concerning a conviction resulting from an earlier sting operation in which Livezey was involved. The Press Herald reported that the Court had ruled that Livezey's behavior "might have been repugnant" but was "not so outrageous" that criminal charges against the target should have been dismissed. The Plaintiff alleged that the Press Herald had mischaracterized that court's statement about plaintiff in a defamatory manner. But Justice Murphy, relying on Time, Inc. v. Pape, 401 U.S. 279, 290 (1971), held that the Press Herald's characterizations were rational interpretations of a legal opinion that could be ambiguous to a layperson. Journalists "cannot be held to the same standard as a lawyer, judge, or legal scholar" in interpreting court opinions. Accordingly, the Press Herald's characterization of the court opinion—even if an incorrect interpretation—did not constitute actual malice.

The Court also suggested that characterizing Livezey's behavior as "repugnant" was probably non-actionable since "repugnant" is comparable to "trashy," "reprehensible," and "repulsive"—epithets that have been held to be non-actionable by other courts.

Reconsideration Denied After Public Records are Introduced

Livezey promptly moved for reconsideration and for leave to amend his complaint. He attached a proposed amended complaint incorporating new allegations that the Press Herald had mischaracterized his own field reports documenting his undercover work. The Press Herald had used the field reports as a primary source in its reporting. To support its argument that the amended complaint still did not plead actual malice, the Press Herald provided the court with Livezey's own field reports and cited them to show that the published article was true.

In an order entered earlier this year, the court agreed with the Press Herald. Justice Murphy concluded, "Mr. Livezey's investigative reports are replete with examples of behavior that could be rationally interpreted as efforts to entice his targets to commit wildlife crimes .... The Court thus concludes as a matter of law that no reasonable juror could determine that the allegedly defamatory statements ... are anything less than rational interpretations of what is included in those reports." Plaintiff did not appeal.

Conclusion

The Maine Superior Court's orders show that even in notice pleading states, courts may be willing to give Iqbal/Twombly-like scrutiny of actual malice allegations by public figures bringing defamation claims. The orders also show that when news organizations use public records as sources and those records support the accuracy of reporting, those sources may be used to fight allegations of actual malice and introducing them may have case-dispositive results.

Benjamin S. Piper, Sigmund D. Schutz and Jonathan S. Piper are media defense attorneys at Preti Flaherty, LLP in Portland, Maine and represented the Portland Press Herald/Maine Sunday Telegram.
 
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