conditional privilege in Alaska

2014See, eg., DeNardo v. Bax, 147 P.3d 672, 678 (Alaska 2006) (recognizing a conditional privilege with respect to statements among co-workers about personal safety in the workplace, and affirming superior court's determination that defendant had not abused the privilege when she told co-workers she was worried plaintiff was stalking her); Taranto, 992 P.2d at 1114-15 (indicating that speech addressing matters of public health and safety is conditionally privileged, and affirming superior court's determination that city employee had not abused the privilege when she posted petition accusing taxica

2014See Taranto v. N. Slope Borough, 992 P.2d 1111, 1114-15 (Alaska 1999) (citing Pearson v. Fairbanks Publ’g Co., 413 P.2d 711, 714 (Alaska 1966)) (noting that in Pearson, the case in which we recognized a conditional privilege for speech about matters of public interest, we “carefully avoided (continued...) -26- 6941 On the basis of common-law privilege, and consistent with the U.S. Supreme Court’s First Amendment jurisprudence, we have recognized a state-law conditional privilege to make defamatory statements in a variety of contexts.57 We have afforded only a conditional privilege even when sp

2014See Taranto v. N. Slope Borough, 992 P.2d 1111, 1114-15 (Alaska 1999) *36 (citing Pearson v. Fairbanks Publ'g Co., 413 P.2d 711, 714 (Alaska 1966)) (noting that in Pearson, the case in which we recognized a conditional privilege for speech about matters of public interest, we "carefully avoided grounding [our] opinion in any constitutional rights to free speech, focusing instead on the common law conditional privilege."). 57 .

2014See Taranto v. N. Slope Borough, 992 P.2d 1111, 1114-15 (Alaska 1999) (citing Pearson v. Fairbanks Publ’g Co., 413 P.2d 711, 714 (Alaska 1966)) (noting that in Pearson, the case in which we recognized a conditional privilege for speech about matters of public interest, we “carefully avoided (continued...) -26- 6941 On the basis of common-law privilege, and consistent with the U.S. Supreme Court’s First Amendment jurisprudence, we have recognized a state-law conditional privilege to make defamatory statements in a variety of contexts.57 We have afforded only a conditional privilege even when sp

2014See, eg., DeNardo v. Bax, 147 P.3d 672, 678 (Alaska 2006) (recognizing a conditional privilege with respect to statements among co-workers about personal safety in the workplace, and affirming superior court's determination that defendant had not abused the privilege when she told co-workers she was worried plaintiff was stalking her); Taranto, 992 P.2d at 1114-15 (indicating that speech addressing matters of public health and safety is conditionally privileged, and affirming superior court's determination that city employee had not abused the privilege when she posted petition accusing taxica

2014But the Court disavowed that view in Gertz, 418 U.S. at 342-45 , and even if Rosenbloom had survived Greene would enjoy at most a conditional privilege. 43 See Schneider v. Pay ’N Save Corp., 723 P.2d 619, 625 (Alaska 1986); see also DeNardo v. Bax, 147 P.3d 672 , 683 n.3 (Alaska 2006) (Eastaugh, J., dissenting) (noting that our precedents “have not been entirely clear” on whether actual malice is required or whether instead mere negligence is sufficient). 44 Gertz, 418 U.S. at 342-45 . 45 131 S. Ct. 1207 (2011). 46 Id. at 1216 (citation and internal quotation marks omitted). -23- 6941 concern

2014But the Court disavowed that view in Gertz, 418 U.S. at 342-45, 94 S.Ct. 2997 , and even if Rosenbloom had survived Greene would enjoy at most a conditional privilege. concern and concluded that in light of the cireumstances of the protest, the speech was entitled to special protection under the First Amendment. 47 The Court set aside the jury verdict awarding the father damages under his state-law tort theories (which did not include defamation). 48 Greene cites Snyder for the proposition that "speech involving a matter of public concern is inactionable." 49 But it requires some hard squintin

2014But the Court disavowed that view in Gertz, 418 U.S. at 342-45 , 94 S.Ct. 2997 , and even if Rosenbloom had survived Greene would enjoy at most a conditional privilege. 43 .

2014We may have suggested in Doe v. Alaska Superior Court, Third Judicial District, 721 P.2d 617, 627 (Alaska 1986), that the conditional privilege under Alaska law derives from the free-speech provision of our state Constitution when we noted that neither that provision nor the free-press clause provides an absolute defense to defamation.

2014See, eg., DeNardo v. Bax, 147 P.3d 672, 678 (Alaska 2006) (recognizing a conditional privilege with respect to statements among co-workers about personal safety in the workplace, and affirming superior court's determination that defendant had not abused the privilege when she told co-workers she was worried plaintiff was stalking her); Taranto, 992 P.2d at 1114-15 (indicating that speech addressing matters of public health and safety is conditionally privileged, and affirming superior court's determination that city employee had not abused the privilege when she posted petition accusing taxica

2014See, eg., DeNardo v. Bax, 147 P.3d 672, 678 (Alaska 2006) (recognizing a conditional privilege with respect to statements among co-workers about personal safety in the workplace, and affirming superior court's determination that defendant had not abused the privilege when she told co-workers she was worried plaintiff was stalking her); Taranto, 992 P.2d at 1114-15 (indicating that speech addressing matters of public health and safety is conditionally privileged, and affirming superior court's determination that city employee had not abused the privilege when she posted petition accusing taxica

2014See Taranto v. N. Slope Borough, 992 P.2d 1111, 1114-15 (Alaska 1999) *36 (citing Pearson v. Fairbanks Publ'g Co., 413 P.2d 711, 714 (Alaska 1966)) (noting that in Pearson, the case in which we recognized a conditional privilege for speech about matters of public interest, we "carefully avoided grounding [our] opinion in any constitutional rights to free speech, focusing instead on the common law conditional privilege."). 57 .

2014See, eg., DeNardo v. Bax, 147 P.3d 672, 678 (Alaska 2006) (recognizing a conditional privilege with respect to statements among co-workers about personal safety in the workplace, and affirming superior court's determination that defendant had not abused the privilege when she told co-workers she was worried plaintiff was stalking her); Taranto, 992 P.2d at 1114-15 (indicating that speech addressing matters of public health and safety is conditionally privileged, and affirming superior court's determination that city employee had not abused the privilege when she posted petition accusing taxica

2014But the Court disavowed that view in Gertz, 418 U.S. at 342-45 , and even if Rosenbloom had survived Greene would enjoy at most a conditional privilege. 43 See Schneider v. Pay ’N Save Corp., 723 P.2d 619, 625 (Alaska 1986); see also DeNardo v. Bax, 147 P.3d 672 , 683 n.3 (Alaska 2006) (Eastaugh, J., dissenting) (noting that our precedents “have not been entirely clear” on whether actual malice is required or whether instead mere negligence is sufficient). 44 Gertz, 418 U.S. at 342-45 . 45 131 S. Ct. 1207 (2011). 46 Id. at 1216 (citation and internal quotation marks omitted). -23- 6941 concern

2014See also MacDonald v. Riggs, 166 P.3d 12 , 16 n. 8 (Alaska 2007) (declining, over dissent's objection, to address whether the defamatory statements were conditionally privileged, noting that the jury's finding that the defendant knew the statements were false showed that the defendant had abused the privilege if it applied). 58 .

2014See also MacDonald v. Riggs, 166 P.3d 12 , 16 n.8 (Alaska 2007) (declining, over dissent’s objection, to address whether the defamatory statements were conditionally privileged, noting that the jury’s finding that the defendant knew the statements were false showed that the defendant had abused the privilege if it applied). 58 Taranto, 992 P.2d at 1114-15 . 59 DeNardo, 147 P.3d at 679 . -27- 6941 have recognized only a conditional privilege even in the context of a newspaper’s publishing articles on matters of public concern.60 Again, the superior court determined that Greene had a conditional

2014The superior court’s jury instruction indicated that the privilege would not protect Greene if she “published the defamatory statement for some purpose other than for which the privilege is given . . . or she knew the statement was false or entertained serious doubts about [its truth].” This instruction is consistent with our precedents on conditional privilege,61 and does not violate the minimal restriction, imposed by Gertz, on state-law defamation liability in the private- party context.62 The jury found that Greene abused the privilege, and Greene does not appeal the jury’s verdict. 60 See

1986This court has recognized two types of conditional privileges: 1) the conditional *624 privilege accorded the media to print items of public interest, Green, 655 P.2d 736 ; West v. Northern Publishing Co., 487 P.2d 1304 (Alaska 1971), and 2) the conditional privilege based on circumstances where any one of several persons having a “common interest” in a particular subject matter believes that there is information that another sharing the common interest is entitled to know, Lull v. Wick Construction Co., 614 P.2d 321 (Alaska 1980) (privilege based on joint business interest).

2014We do not address that argument here; Greene appears to have abandoned it at some point, and in any event the argument is ill- founded, given that Tinker’s defamation claim was based entirely on Greene’s complaint to YKHC. -20- 6941 of the person making it; although a conditional privilege protected defendants in some circumstances, a defendant could be liable for a defamatory publication even if without fault with regard to the falsity of the publication or its defamatory character.35 The U.S. Supreme Court has substantially modified this common-law rule in decisions in which the Court has so

2014We do not address that argument here; Greene appears to have abandoned it at some point, and in any event the argument is ill- founded, given that Tinker’s defamation claim was based entirely on Greene’s complaint to YKHC. -20- 6941 of the person making it; although a conditional privilege protected defendants in some circumstances, a defendant could be liable for a defamatory publication even if without fault with regard to the falsity of the publication or its defamatory character.35 The U.S. Supreme Court has substantially modified this common-law rule in decisions in which the Court has so

2014But the Court disavowed that view in Gertz, 418 U.S. at 342-45 , and even if Rosenbloom had survived Greene would enjoy at most a conditional privilege. 43 See Schneider v. Pay ’N Save Corp., 723 P.2d 619, 625 (Alaska 1986); see also DeNardo v. Bax, 147 P.3d 672 , 683 n.3 (Alaska 2006) (Eastaugh, J., dissenting) (noting that our precedents “have not been entirely clear” on whether actual malice is required or whether instead mere negligence is sufficient). 44 Gertz, 418 U.S. at 342-45 . 45 131 S. Ct. 1207 (2011). 46 Id. at 1216 (citation and internal quotation marks omitted). -23- 6941 concern

2014But the Court disavowed that view in Gertz, 418 U.S. at 342-45 , and even if Rosenbloom had survived Greene would enjoy at most a conditional privilege. 43 See Schneider v. Pay ’N Save Corp., 723 P.2d 619, 625 (Alaska 1986); see also DeNardo v. Bax, 147 P.3d 672 , 683 n.3 (Alaska 2006) (Eastaugh, J., dissenting) (noting that our precedents “have not been entirely clear” on whether actual malice is required or whether instead mere negligence is sufficient). 44 Gertz, 418 U.S. at 342-45 . 45 131 S. Ct. 1207 (2011). 46 Id. at 1216 (citation and internal quotation marks omitted). -23- 6941 concern

2014The superior court’s jury instruction indicated that the privilege would not protect Greene if she “published the defamatory statement for some purpose other than for which the privilege is given . . . or she knew the statement was false or entertained serious doubts about [its truth].” This instruction is consistent with our precedents on conditional privilege,61 and does not violate the minimal restriction, imposed by Gertz, on state-law defamation liability in the private- party context.62 The jury found that Greene abused the privilege, and Greene does not appeal the jury’s verdict. 60 See

2014But because the First Amendment and Alaska law provide at most a conditional privilege to make defamatory statements under the circumstances of this case, it makes no difference here whether the issue was of public concern; the superior court recognized a conditional privilege, and the jury found Greene abused it. 50 See Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974); New York Times v. Sullivan, 376 U.S. 254, 279 (1964). 51 See Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1, 18 (2000) (“This Court does not normally overturn, or so dramatically limit, earlier (continued.

2014But the conditional privilege derived from the U.S. Constitution, and the attendant actual-malice standard enunciated in New York Times and its progeny, do not necessarily protect defendants in defamation actions brought by private individuals.39 The U.S. Supreme Court made this clear in Gertz v. Robert Welch, Inc.,40 in which the Court held that the First Amendment imposes only the most minimal restrictions on state- law liability in defamation actions brought by private individuals.41 Rather than extending the stringent actual-malice test from New York Times to the private-party context, the

2014But the conditional privilege derived from the U.S. Constitution, and the attendant actual-malice standard enunciated in New York Times and its progeny, do not necessarily protect defendants in defamation actions brought by private individuals.39 The U.S. Supreme Court made this clear in Gertz v. Robert Welch, Inc.,40 in which the Court held that the First Amendment imposes only the most minimal restrictions on state- law liability in defamation actions brought by private individuals.41 Rather than extending the stringent actual-malice test from New York Times to the private-party context, the

2014The superior court’s jury instruction indicated that the privilege would not protect Greene if she “published the defamatory statement for some purpose other than for which the privilege is given . . . or she knew the statement was false or entertained serious doubts about [its truth].” This instruction is consistent with our precedents on conditional privilege,61 and does not violate the minimal restriction, imposed by Gertz, on state-law defamation liability in the private- party context.62 The jury found that Greene abused the privilege, and Greene does not appeal the jury’s verdict. 60 See

2014Greene argues on appeal that the superior court erred in concluding that she had only a conditional privilege to complain about Tinker to YKHC, claiming that the guarantees of freedom of speech in the federal and Alaska constitutions provide a complete defense to Tinker’s defamation claim.31 As we explain below, the U.S. 29 Id. 30 Id. 31 The elements of defamation are: “(1) a false and defamatory statement; (2) unprivileged publication to a third party; (3) fault amounting at least to negligence; and (4) either per se actionability or special damages.” State v. Carpenter, 171 P.3d 41, 51 (Alas

2006These characterizations all appear to derive from how Bax's affidavit impliedly described her statements. [30] See Bennett v. Weimar, 975 P.2d 691, 695 (Alaska 1999) (citing Smith v. Thompson, 923 P.2d 101 , 102 n. 1 (Alaska 1996)). [31] Because there is no direct evidence of Bax's belief in the truthfulness of her allegedly defamatory statements, DeNardo's most viable approach to showing abuse of the conditional privilege on malice grounds is to convince the fact finder that (a) Bax's statements that DeNardo stalked her were false and that (b) Bax therefore must have known her belief that DeN

1996Hosp., 779 P.2d 783, 790 (Alaska 1989) (quoting Restatement (Second) of Torts § 595 (1977) and recognizing a conditional privilege if the circumstances induce a correct or reasonable belief that there is information that affects a sufficiently important interest of the recipient or a third person).

1994See Waldinger Corp. v. CBS Group Eng’rs, Inc., 775 F.2d 781 , 790 (7th Cir.1985) (“Where a conditional privilege exists, the plaintiff to succeed on a claim of tortious interference with contract, must allege and prove that the agent’s intentional acts were not taken to further its principal’s best interests, but to further its personal goals or to injure the other party to the contract.”).

1993See also Joiner v. Weeks, 383 So.2d 101 (La.App.1980) (dismissing claims of wrongful disfel-lowship and wrongful deprivation of livelihood and concluding allegedly defamatory statements made were privileged and the evidence failed to show by clear and convincing evidence that members acted with malice); and Pendleton v. Hawkins, 11 A.D. 602 , 42 N.Y.S. 626 (1896) (finding the claim for libel arising from a deacon showing letter from clerk to other deacons and parishioners remanded for new trial on the basis that the jury should have been instructed that the publication was qualifiedly privileg

1993Restatement (Second) of Torts §§ 596 cmt. e and 599-605A (1977); see also Murphy, 393 P.2d at 214 .

1987Cf. Urethane Specialities, Inc. v. City of Valdez, 620 P.2d 683, 689 (Alaska 1980) (common law privilege to speak out in public interest protects city from defamation action by “fly-by-night” business).