NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
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2023 VT 50
No. 22-AP-222
Kyle Wolfe Supreme Court
On Appeal from
v. Superior Court, Rutland Unit,
Civil Division
VT Digger et al. February Term, 2023
David A. Barra, J.
Kyle T. Wolfe, Pro Se, Burlington, Plaintiff-Appellant/Cross-Appellee.
Matthew B. Byrne of Gravel & Shea PC, Burlington, for Defendants-Appellees/
Cross-Appellants.
PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.
¶ 1. COHEN, J. Plaintiff Kyle Wolfe appeals from the civil division’s dismissal of his
lawsuit against Vermont Digger and its editor Anne Galloway (hereinafter collectively referred to
as “VT Digger”), arguing that dismissal was improper and alleging that VT Digger’s publication
of articles about him was defamatory and constituted a hate crime. VT Digger cross-appeals,
arguing that its special motion to strike under Vermont’s anti-SLAPP statute should not have been
denied as moot after its motion to dismiss was granted. We affirm the court’s dismissal of
plaintiff’s complaint for failure to state a claim, but conclude that the trial court should have
granted VT Digger’s motion to strike, and therefore reverse and remand for the court to award
attorney’s fees to VT Digger pursuant to the anti-SLAPP statute.
I. Facts and Procedural History
¶ 2. In October 2021, plaintiff was arrested at the Vermont Statehouse on charges of
aggravated disorderly conduct, disorderly conduct, and resisting arrest based on conduct directed
toward the Speaker of the Vermont House of Representatives. VT Digger published an article on
October 8, 2021, titled, “Man arrested at the Vermont Statehouse after threatening House speaker.”
The article named plaintiff, described his allegedly threatening conduct toward the House Speaker,
referred to an unloaded gun found in plaintiff’s car and “a prior criminal conviction that would
prevent [plaintiff] from owning most types of guns,” and noted that he had been admitted to a
“medical facility for mental health screening under a mental health warrant.”
¶ 3. In December 2021, plaintiff was released on conditions that required him to stay in
Rutland County and prohibited him from possessing firearms or contacting the House Speaker.
The same day, VT Digger published an article titled, “Defendant who threatened House speaker
released with several conditions.” The article described plaintiff’s conditions of release, the
charges against plaintiff, and some of the facts the court considered during plaintiff’s bail hearing,
and noted that plaintiff had a 2017 conviction for conspiracy to distribute narcotics.
¶ 4. The civil division issued a final order against stalking in December 2021, which
prohibited plaintiff from communicating with the House Speaker electronically or coming within
three hundred feet of her, her residence, her motor vehicle, and her place of employment. In
February 2022, plaintiff allegedly posted annotated photographs of firearms to his social media
accounts, “tagged” the House Speaker in a Facebook post, and asked others to contact the House
Speaker, noting in a comment on Facebook, “Yes, I am aware this is technically ‘illegal.’ ” Due
to this conduct, plaintiff was charged in March 2022 with violating the anti-stalking order. A few
days later, plaintiff was further charged with violating the Rutland County travel restriction
condition after he allegedly traveled to South Burlington. The court imposed new conditions of
release that expanded on plaintiff’s prior conditions.
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¶ 5. VT Digger subsequently published an article on March 3, 2022, detailing plaintiff’s
new conditions of release. Finally, on March 7, VT Digger published another article describing
plaintiff’s social media posts that led to the charge of violating the order against stalking and his
conditions of release.
¶ 6. Plaintiff filed a complaint against VT Digger in May 2022 accusing it of defamation
by libel and slander and requesting the civil division enjoin VT Digger from publishing further
articles about him. In support of his defamation claim, plaintiff referred to the four above-
described VT Digger articles from October 8 and December 13, 2021, and March 3 and March 7,
2022. He also cited Vermont’s hate-crime statute but did not specifically allege that VT Digger
had violated it.
¶ 7. VT Digger moved to dismiss, arguing that plaintiff’s request for injunctive relief
sought a restraint on speech that was protected by statutory and constitutional privileges. VT
Digger’s motion further asserted that plaintiff failed to state a claim for defamation.
¶ 8. In July 2022, the civil division issued an order directing plaintiff to file a more
definite statement of his claim. The next day, VT Digger filed a special motion to strike the
complaint under 12 V.S.A. § 1041(a), asserting that plaintiff’s complaint “attack[ed] the Vermont
Digger’s right to speak on issues of public concern” and was therefore the type of anti-free-speech
lawsuit the Legislature aimed to stop with its anti-SLAPP legislation.
¶ 9. Plaintiff subsequently filed materials with the court that purported to be a more
definite statement of his claim. These included copies of the articles of organization for his
business, his curriculum vitae, his college transcript, one of the VT Digger articles, and a redacted
October 2021 mental-health order. He also filed an affidavit in which he provided links to his
social media pages, listed the four VT Digger articles, claimed that he was not a public figure, and
argued that VT Digger had harmed his reputation, business, and mental health by falsely
suggesting that he was violent, mentally unstable, and had broken the law. In addition to reiterating
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his defamation claim, he asserted that by discussing his prior conviction and mental health
proceedings in the articles, VT Digger committed hate-motivated crimes under 13 V.S.A. §§ 1455
and 1457.
¶ 10. The civil division granted VT Digger’s motion to dismiss, concluding that plaintiff
failed to state a claim for defamation or for violation of the hate-crime statute because the VT
Digger articles were speech protected by the U.S. and Vermont Constitutions. In a separate order,
the court denied VT Digger’s motion to strike the complaint as moot. Both parties appealed.
II. Dismissal for Failure to State a Claim
¶ 11. Plaintiff appeals from the civil division’s order granting VT Digger’s motion to
dismiss his complaint for failure to state a claim. In his brief, plaintiff argues that VT Digger was
motivated by hate in publishing the articles. He argues that the articles did not involve a matter of
public concern and caused him severe emotional and reputational harm.
¶ 12. We review the trial court’s decision on a motion to dismiss without deference.
Ferry v. City of Montpelier, 2023 VT 4, ¶ 8, __ Vt. __,
296 A.3d 749. A motion to dismiss for
failure to state a claim “may not be granted unless it appears beyond doubt that there exist no facts
or circumstances that would entitle the plaintiff to relief.” Wool v. Off. of Pro. Regul.,
2020 VT
44, ¶ 8,
212 Vt. 305,
236 A.3d 1250 (quotation omitted). “Where pleadings rely upon outside
documents, those documents merge into the pleadings and the court may properly consider them
under a Rule 12(b)(6) motion to dismiss.” Davis v. Am. Legion, Dep’t of Vt.,
2014 VT 134, ¶ 13,
198 Vt. 204,
114 A.3d 99 (quotation omitted) (alteration omitted).
¶ 13. To state a claim for defamation, a plaintiff must allege the following:
(1) a false and defamatory statement concerning another; (2) some
negligence, or greater fault, in publishing the statement;
(3) publication to at least one third person; (4) lack of privilege in
the publication; (5) special damages, unless actionable per se; and
(6) some actual harm so as to warrant compensatory damages.
4
Lent v. Huntoon, 143 Vt. 539, 546-47,
470 A.2d 1162, 1168 (1983) (footnote omitted). A
defamatory statement is one that tends to tarnish a plaintiff’s reputation and “expose her to public
hatred, contempt or ridicule.” Davis,
2014 VT 134, ¶ 22 (quotation omitted). “Truth . . . is a
complete defense to defamation.” Lent,
143 Vt. at 548,
470 A.2d at 1169. “[F]or the defense of
truth to apply, it is now generally agreed that it is not necessary to prove the literal truth of the
accusation in every detail, and that it is sufficient to show that the imputation is substantially true.”
Russin v. Wesson,
2008 VT 22, ¶ 8,
183 Vt. 301,
949 A.2d 1019 (quotation omitted).
¶ 14. Construed in the light most favorable to plaintiff, his complaint fails to state a claim
for defamation. Plaintiff only identified two specific statements as defamatory: that plaintiff was
arrested for threatening the House Speaker and that he was accused of stalking the House Speaker.
However, plaintiff does not allege that these statements were false. He contested the validity of
the charges and the anti-stalking order, but did not deny that they existed. Plaintiff also asserted
that the articles harmed his reputation by labeling him as mentally ill and ridiculed him for a pre-
existing health condition. However, plaintiff identified no specific false statements related to this
claim. Two of the articles stated that, after his arrest in October 2021, he had been “screened by
Washington County Mental Health and admitted to a secure medical facility under a mental health
warrant.” Plaintiff did not allege in his complaint, or assert on appeal, that this was untrue, and it
is supported by the affidavit filed by the Capitol Police. Another article stated that the court had
ordered plaintiff to undergo a competency evaluation, and quoted a deputy state’s attorney as
saying that “according to the Brattleboro Retreat, [plaintiff] was not in compliance with his
medication and treatment, and made vague, nonspecific threats while he was there.” Plaintiff did
not allege that he was not ordered to undergo a competency evaluation or that the deputy state’s
attorney did not make the quoted statement. Accordingly, plaintiff failed to identify any specific
false statements in the articles, defeating his defamation claim.
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¶ 15. Plaintiff’s complaint also fails to state a claim for relief under Vermont’s hate-
crime statute. The statute provides that “[a] person who commits, causes to be committed, or
attempts to commit any crime and whose conduct is motivated, in whole or in part, by the victim’s
actual or perceived protected category shall be subject to” fines and imprisonment. 13 V.S.A.
§ 1455(a). A victim of a hate-motivated crime may also bring a civil action for injunctive relief
and damages. Id. § 1457. Disability is a protected category under the statute. Id. § 1455(c); 21
V.S.A. § 495d(5).
¶ 16. Plaintiff asserted in his complaint that he was entitled to relief under 13 V.S.A.
§ 1457 because he has a disability and VT Digger’s allegedly defamatory statements were
motivated by that disability. The trial court concluded that plaintiff’s claim failed because the
statute did not apply to protected speech. See 13 V.S.A. § 1454 (“It is not the intent of this chapter
to interfere with the exercise of rights protected by the constitutions of this State or the United
States and the Legislature recognizes the constitutional rights of every citizen to harbor and express
beliefs on any subject and to associate with others who share similar beliefs.”). We find that it
fails for an even simpler reason; that is, plaintiff’s failure to identify any crime committed by VT
Digger. See Davey v. Baker, 2021 VT 94, ¶ 2,
216 Vt. 153,
274 A.3d 817 (stating that this Court
may affirm dismissal “on any ground”). Vermont does not have a criminal libel or slander statute.*
Even construed in the light most favorable to plaintiff, his complaint does not identify any other
criminal act committed by VT Digger. Accordingly, he has failed to allege facts sufficient to
support a claim under 13 V.S.A. §§ 1455 and 1457. We therefore affirm the trial court’s dismissal
of plaintiff’s complaint for failure to state a claim for which relief may be granted.
*
Former 13 V.S.A. §§ 801-802, which prohibited blasphemy and “[d]efaming a court,”
were repealed in 1980. See 1979, No. 152 (Adj. Sess.).
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III. Motion to Strike
¶ 17. VT Digger cross-appeals, arguing that the court improperly denied its special
motion to strike as moot. We conclude that the court erred in determining that the motion was
moot and should instead have granted the motion. We therefore reverse and remand for the court
to award VT Digger attorney’s fees pursuant to 12 V.S.A. § 1041(f).
¶ 18. Vermont’s anti-SLAPP statute provides in relevant part that “[a] defendant in an
action arising from the defendant’s exercise, in connection with a public issue, of the right to
freedom of speech . . . may file a special motion to strike under this section.” Id. § 1041(a). The
motion “shall” be granted “unless the plaintiff shows that: (A) the defendant’s exercise of his or
her right to freedom of speech and to petition was devoid of any reasonable factual support and
any arguable basis in law; and (B) the defendant’s acts caused actual injury to the plaintiff.” Id.
§ 1041(e)(1). If the trial court grants the defendant’s motion to strike, “the court shall award costs
and reasonable attorney’s fees to the defendant.” Id. § 1041(f)(1). Succeeding on a motion to
strike is a two-step process by which a defendant must first establish an exercise of free speech in
connection with a public issue, at which time the burden shifts to the plaintiff to demonstrate that
the defendant’s expression was not factually or legally supported and caused the plaintiff harm.
Cornelius v. Chronicle, Inc., 2019 VT 4, ¶ 8,
209 Vt. 405,
206 A.3d 710.
¶ 19. It is now well-settled under our law that when a defendant files both a motion to
dismiss and a special motion to strike the complaint under 12 V.S.A. § 1041, “granting [the] motion
to dismiss does not moot the motion to strike because the issue of attorney’s fees remains a live
controversy.” Id. ¶ 17; see Felis v. Downs Rachlin Martin PLLC, 2015 VT 129, ¶ 28,
200 Vt. 465,
133 A.3d 836 (concluding motion to strike was not moot because defendant would “still [be]
entitled to relief in the form of attorney’s fees if successful in dismissing [the] plaintiff’s suit”).
Therefore, the trial court erred in declining to consider VT Digger’s motion to strike on that basis.
Because the parties have briefed the applicability of the statute and because we wish to avoid
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accruing more attorney’s fees for the parties, we will review the motion to strike on appeal to
determine whether it ought to have been granted. See Felis, 2015 VT 129, ¶ 28 (opting to review
anti-SLAPP motion on appeal “because the parties have briefed the applicability of the statute, we
can decide the issue based on a question of law on which the standard of review is de novo, and
we can avoid the accrual of even more attorney’s fees for the parties”).
¶ 20. We previously examined the anti-SLAPP statute as applied to a similar set of facts
in Cornelius v. Chronicle, Inc. In that case, the plaintiff sued a newspaper alleging that the
newspaper invaded his privacy and painted him in a false light after it published two articles
reporting that the plaintiff and his brother had allegedly threatened local law enforcement,
recounting their criminal histories, and describing the plaintiff’s arraignment for the charge of
aiding in his brother’s escape. The trial court granted the newspaper’s motion to strike the
plaintiff’s complaint under the anti-SLAPP statute and awarded it limited attorney’s fees. The
plaintiff appealed the orders striking his claims, and the newspaper cross-appealed the amount of
attorney’s fees. Upon review, this Court affirmed the court’s decisions as to granting the motion
to strike and reversed and remanded as to the limitation of attorney’s fees. 2019 VT 4, ¶ 1.
¶ 21. Relevant to this appeal, we concluded in Cornelius that the newspaper’s two articles
“were exercises of free speech and connected to a public issue because they concerned public
safety, law enforcement activity, possible criminal behavior, and the reporting of arrests.” Id. ¶ 10.
Therefore, because the newspaper met its threshold showing under 12 V.S.A. § 1041(a), the burden
shifted to the plaintiff “to demonstrate that [the] newspaper’s exercise of its freedom of speech
‘was devoid of any reasonable factual support and any arguable basis in law.’ ” Id. ¶ 15 (quoting
12 V.S.A. § 1041(e)(1)(A)). The plaintiff failed to do so, asserting only that information repeated
from a law enforcement bulletin was inaccurate. We held that this was insufficient to show a lack
of reasonable support because the newspaper did not independently make these assertions, but
simply attributed them to the law-enforcement bulletin, the plaintiff’s and his brother’s public
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Facebook posts, and a statement made by their probation officer. Id. ¶ 16. We concluded that the
claims were therefore properly stricken under § 1041. Id.
¶ 22. As in Cornelius, the four VT Digger articles challenged by plaintiff in this case
involved speech in connection with a public issue. The public had an interest in information
relating to plaintiff’s alleged threats toward a high-ranking public official and plaintiff’s resulting
arrest and criminal charges. It also had an interest in information concerning his conditions of
release, as well as his subsequent charges for violating those conditions and the order prohibiting
him from contacting the House Speaker. See id. ¶ 10 (explaining that “matters connected to law
enforcement investigation, public safety, and crime in the community are of public concern”); see
also Caledonia Rec. Publ’g Co. v. Walton, 154 Vt. 15, 21,
573 A.2d 296, 299 (1990) (“Pursuant
to the First Amendment, it is generally recognized that the public and the media have a
constitutional right of access to information relating to the activities of law enforcement officers
and to information concerning crime in the community.”); 1 V.S.A. § 317(c)(5)(B) (providing that
“records reflecting the initial arrest of a person . . . [and] the charge . . . shall be public”). Further,
the public had an interest in plaintiff’s statements on his public social media accounts, which
suggested that he was deliberately violating his conditions of release. Cornelius,
2019 VT 4, ¶ 13.
¶ 23. Because VT Digger demonstrated that its articles were related to matters of public
concern, the burden shifted to plaintiff to demonstrate that VT Digger’s exercise of speech was
“devoid of any reasonable factual support and any arguable basis in law.” 12 V.S.A.
§ 1041(e)(1)(A). Plaintiff failed to meet this burden. The record shows that the articles were based
on court records in plaintiff’s criminal cases, journalists’ interviews with the House Speaker and
law-enforcement officials, and personal observations at plaintiff’s court hearings. Plaintiff
specifically objected to the articles’ statements that he was accused of threatening and stalking the
House Speaker. However, these assertions were based on court records and witness interviews,
and were not independently made by VT Digger. While plaintiff may disagree with the charges,
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he cannot (and does not) deny that they were filed against him. Plaintiff also appears to claim that
he is challenging “generalized statements that discussed [plaintiff’s] character” that were separate
from any criminal proceeding, but he fails to identify any specific statements that were devoid of
factual support.
¶ 24. VT Digger argues that this Court should rule that dismissal of a complaint for
failure to state a claim automatically means that the complaint lacks an “arguable basis in law” for
purposes of the anti-SLAPP statute. Insofar as we have already determined that VT Digger was
entitled to relief under the anti-SLAPP statute due to plaintiff’s failure to demonstrate that its
speech was devoid of factual support, we need not address this argument to resolve the appeal.
Moreover, VT Digger did not raise this issue below, therefore failing to preserve it for our review.
See Bull v. Pinkham Eng’g Assocs. Inc., 170 Vt. 450, 459,
752 A.2d 26, 33 (2000) (“Contentions
not raised or fairly presented to the trial court are not preserved for appeal.”).
¶ 25. Because plaintiff did not meet his burden under § 1041(e)(1)(A), VT Digger was
entitled to have the complaint stricken and to recover attorney’s fees. See 12 V.S.A. § 1041(f)(1)
(“If the court grants the special motion to strike, the court shall award costs and reasonable
attorney’s fees to the defendant.”); Cornelius, 2019 VT 4, ¶ 19 (holding that if court grants motion
to strike, award of attorney’s fees is mandatory). We therefore remand the matter to the trial court
solely for the purpose of determining the amount of attorney’s fees plaintiff owes to defendant.
The trial court’s order dismissing plaintiff’s complaint for failure to state a claim is
affirmed. The order denying defendants’ motion to strike is reversed and remanded for the trial
court to enter judgment in favor of defendants and award attorney’s fees pursuant to 12 V.S.A.
§ 1041(f).
FOR THE COURT:
Associate Justice
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