0IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 122,400
ELYSIA A. MARCUS,
Appellee,
v.
ERIC SWANSON, M.D.,
Appellant,
v.
ELYSIA A. MARCUS,
Appellee.
SYLLABUS BY THE COURT
1.
The elements of defamation include false and defamatory words, communicated to
a third person, which result in harm to the reputation of the person defamed.
2.
Evidence of reputational harm is required in defamation claims. Speculation about
reputational harm is not sufficient.
3.
Reputational harm may be shown by reasonable inferences, but these reasonable
inferences must be tethered to a fact in the world, whether it be declining revenue,
decreased professional opportunities, or some other indicator of reputational harm that is
unique to the case at hand.
1
4.
Defamation per se and presumed damages have been abolished in state defamation
causes of action in Kansas.
5.
Unless injury to reputation is established by the evidence in a defamation cause of
action, no other damages are recoverable.
Review of the judgment of the Court of Appeals in an unpublished opinion filed August 19, 2022.
Appeal from Johnson District Court; DAVID W. HAUBER, judge. Oral argument held March 29, 2023.
Opinion filed December 8, 2023. Judgment of the Court of Appeals affirming the district court is
affirmed. Judgment of the district court is affirmed.
Quentin M. Templeton, of Forbes Law Group, LLC, of Overland Park, argued the cause, and
Frankie J. Forbes and Russell J. Keller, of the same firm, and William J. Skepnek, of The Skepnek Law
Firm, P.A., of Lawrence, were with him on the briefs for appellant.
Matthew V. Bartle, of Bartle & Marcus LLC, of Kansas City, Missouri, argued the cause and was
on the briefs for appellee.
The opinion of the court was delivered by
WILSON, J.: This is a defamation claim by a cosmetic surgeon against a former
patient. The patient, Elysia A. Marcus, posted negative and false Yelp reviews after Dr.
Eric Swanson performed a laser resurfacing procedure on her face. Finding in Swanson's
favor, a jury determined the reviews harmed Swanson's reputation. The district court set
aside the defamation judgment holding Swanson failed to show any actual damage to his
reputation. A Court of Appeals panel majority affirmed the district court. We agree and
affirm the panel majority and the district court.
2
FACTS AND PROCEDURAL BACKGROUND
Dr. Eric Swanson is a plastic surgeon specializing in cosmetic surgery. In April
2015, Elysia Marcus met with Swanson on the advice of a friend. In 2016, Swanson
performed a cosmetic procedure on many areas of Marcus' face, at a cost of $2,500.
Marcus was not satisfied with the results.
In May 2017, Marcus' husband, an attorney, reached out to another attorney who
focused on medical negligence. This attorney sent Swanson a demand letter. After
negotiations, the parties signed a written release with these provisions: Swanson would
refund the $2,500 fee, the Marcuses would give up any legal claims against Swanson or
his practice related to the procedure, and the Marcuses would not discuss the issue in the
media.
In November 2017, Marcus posted two Yelp reviews, one on Swanson's personal
page and one on the page of his business, the Swanson Center. The business review
included a one-star rating out of a possible five stars. The parties agree the reviews
contained false and defamatory statements.
Swanson learned about the posts in March 2018. Due to the nature of his business,
he relies on online advertising and word-of-mouth recommendations from previous
clients. Swanson routinely tracks his online reviews. Though signed under a false name,
Swanson suspected Marcus authored the defamatory reviews. He hired an attorney and
sent a demand letter to the Marcuses. The letter demanded that Marcus (1) pay Swanson
$25,000; (2) acknowledge that she wrote the reviews; (3) apologize; and (4) take down
the reviews. The letter said Swanson would sue if Marcus failed to meet these demands.
3
Shortly after, Marcus petitioned for declaratory judgment in the District Court of
Johnson County. She asked the district court to determine the parties' rights and
obligations under the release. Swanson filed an answer and raised three counterclaims:
(1) breach of contract, (2) libel, and particularly libel per se, and (3) tortious interference
with a prospective business advantage. The third claim was later dismissed.
Three witnesses testified at trial: Marcus, Swanson, and Nicole Hart Neufeld, one
of Swanson's former patients. Swanson explained that he believed the posts hurt his
reputation, but that he did not lose any business or professional opportunities following
the Yelp reviews and that he could not quantify how many potential clients were affected.
Similarly, Neufeld testified that she saw the reviews and was concerned they might cause
potential clients to avoid Swanson. She was a satisfied client and posted a review to
offset Marcus'. She continued to recommend Swanson's services to her friends after
reading the reviews.
Following the close of evidence, Marcus moved for judgment as a matter of law
on both claims. As for defamation, Marcus' counsel argued "there's been literally zero
evidence of any damages whatsoever." The court denied the motion as to the breach of
contract claim but took the motion concerning the defamation claim under advisement
and said Marcus could renew the motion after the verdict.
The jury found that Marcus breached the release agreement and awarded Swanson
$2,500 in damages. Next, the jury concluded Marcus' Yelp reviews were defamatory, the
reviews damaged Swanson's reputation, and Swanson should be awarded $15,000 in
damages. The jury also found that punitive damages should be awarded after finding
"Marcus acted in a willful or malicious manner."
4
Marcus filed a renewed motion for judgment as a matter of law. She argued there
was no evidence the Yelp reviews injured Swanson's reputation. In December 2019, the
court granted the motion and set aside the jury's verdict on the defamation claim.
Swanson filed a notice of appeal and Marcus cross-appealed.
A panel of the Kansas Court of Appeals issued a split opinion in August 2022.
Marcus v. Swanson, No. 122,400, 2022 WL 3570349 (Kan. App. 2022) (unpublished
opinion). The majority affirmed on both counts.
The majority pointed out that Kansas law requires a "tangible basis for inferring a
real (rather than merely a presumed) diminution in reputation." Marcus, 2022 WL
3570349, at *6. After reviewing the trial testimony, the majority concluded there was no
evidence to suggest reputational harm. Instead, any such harm was merely speculative. It
concluded "[t]he fundamental problem for Dr. Swanson rests in the requirement he offer
evidence of some actual damage to his reputation to establish a legally submissible claim
for defamation."
2022 WL 3570349, at *8.
In her concurring and dissenting opinion, Judge Warner outlined various pieces of
testimony from Swanson and Neufeld. She found the testimony sufficient to support a
jury's finding of reputational damage, but noted the "evidence, without more, may have
danced on the razor's edge of speculation." Yet Judge Warner argued that Marcus
affected "Swanson's reputation in a real, measurable sense: It reduced Dr. Swanson's
Yelp star-rating from 5 to 3.5 stars." 2022 WL 3570349, at *15. Accordingly, Judge
Warner concluded the district court erred in determining no evidence supported the jury's
conclusion that the Yelp posts injured Swanson's reputation.
We granted Swanson's petition for review.
5
ANALYSIS
Swanson raises two issues in his petition for review. First, Swanson argues that the
district court and panel majority erred in finding there was insufficient evidence to
establish reputational harm. Second, Swanson argues that he need not establish
reputational harm because the jury found Marcus acted with malice and the common law
doctrine of defamation per se means damages are presumed.
Defamation in Kansas
The law of defamation developed as part of the common law. "The elements of
defamation include false and defamatory words, communicated to a third person, which
result in harm to the reputation of the person defamed." Hall v. Kansas Farm Bureau,
274 Kan. 263, 276,
50 P.3d 495 (2002). Traditionally, defamation has two variants: libel,
a written defamatory statement, and slander, an oral defamatory statement. Gobin v.
Globe Pub. Co.,
232 Kan. 1, 5,
649 P.2d 1239 (1982) (Gobin III). Rather than viewing
these as distinct causes of action, in Kansas "'[t]he tort of defamation includes both libel
and slander.'" Dominguez v. Davidson,
266 Kan. 926, 930,
974 P.2d 112 (1999) (quoting
Lindemuth v. Goodyear Tire & Rubber Co.,
19 Kan. App. 2d 95, 102,
864 P.2d 744
[1993]).
Beyond the slander/libel distinction, the tort of defamation also traditionally
included a distinction between defamation per se and defamation per quod. In Karrigan
v. Valentine, 184 Kan. 783, 787,
339 P.2d 52 (1959), we explained:
"Words libelous per se are words which are defamatory in themselves and which
intrinsically, by their very use, without innuendo and the aid of extrinsic proof, import
injury and damage to the person concerning whom they were written. They are words
6
from which, by the consent of mankind generally, damage follows as a natural
consequence and from which malice is implied and damage is conclusively presumed to
result. . . .
"Words libelous per quod, on the other hand, are words ordinarily not
defamatory but which become actionable only when special damages are shown, that is,
they are words the injurious character of which appears only in consequence of extrinsic
facts. Thus, words not defamatory per se, may become actionable per quod, depending
upon the facts and circumstances of the particular case, and this gives rise to the rule that
in order to recover for a libel per quod special damage and injury must be alleged and
proved."
In Kansas, defamation per se arose based on these statements: "(1) Imputation of a
crime; (2) imputation of a loathsome disease (usually venereal); (3) imputation of a
person's unfitness for his trade or profession; or (4) imputation that a woman is unchaste."
Kraisinger v. Liggett, 3 Kan. App. 2d 235, 237,
592 P.2d 477 (1979).
Moreover, damages in defamation come in several forms.
"Defamation damages traditionally involve five subparts: (1) nominal damages ('a trivial
sum of money awarded' when a plaintiff 'has not established that he is entitled to
compensatory damages'), (2) general damages for harm to reputation (called 'general,'
because they are generally anticipated, and hence do not need to be alleged), (3) damages
for special harm (the 'loss of something having economic or pecuniary value,' such as loss
of business), (4) damages for emotional distress (and bodily harm resulting therefrom),
and (5) punitive damages (to punish a defendant's outrageous conduct)." Sipe, "Old
Stinking, Old Nasty, Old Itchy Old Toad": Defamation Law, Warts and All (a Call for
Reform), 41 Ind. L. Rev. 137, 152 (2008).
But the right of an individual to seek and obtain redress for defamation is not
without limits. See, e.g., New York Times v. Sullivan, 376 U.S. 254,
84 S. Ct. 710,
11 L.
7
Ed. 2d 686 (1964) (false statements from the media about a public official conducting
their official duties were protected by the First Amendment unless the public official
could prove the statement was made with actual malice); Gertz v. Robert Welch Inc.,
418
U.S. 323, 349,
94 S. Ct. 2997,
41 L. Ed. 2d 789 (1974) ("States may not permit recovery
of presumed or punitive damages, at least when liability is not based on a showing of
knowledge of falsity or reckless disregard for the truth.").
Shortly after Gertz, we issued Gobin v. Globe Pub. Co., 216 Kan. 223,
531 P.2d
76 (1975) (Gobin I). Gary Dean Gobin alleged a Dodge City newspaper, published by
Globe Publishing Company, printed defamatory statements. Gobin was a hog farmer, and
the newspaper printed an article and photos falsely representing that Gobin pleaded guilty
to animal cruelty. In fact, Gobin was charged and convicted but he never pleaded guilty,
and the criminal case was ultimately dismissed. After his civil trial, the jury awarded
Gobin $100,000 in damages. Gobin had not asserted injury to reputation or emotional
distress. Globe appealed, and we explained "[t]he controlling issue upon this appeal is
whether damage to one's reputation is an essential ingredient in an action for
defamation."
232 Kan. at 4.
Pertinent to the issues here, we held:
"Gertz, as we pointed out in Gobin I, effected an immediate change upon the rule
in Kansas and in those other states which presumed damages upon the establishment of
libel per se, and permitted recovery based upon that presumption. Damages recoverable
for defamation may no longer be presumed; they must be established by proof, no matter
what the character of the libel." Gobin III, 232 Kan. at 5.
8
Further:
"We conclude that in this state, damage to one's reputation is the essence and
gravamen of an action for defamation. Unless injury to reputation is shown, plaintiff has
not established a valid claim for defamation, by either libel or slander, under our law. It is
reputation which is defamed, reputation which is injured, reputation which is protected by
the laws of libel and slander." (Emphasis added.) Gobin III, 232 Kan. at 6.
We have reiterated this holding in subsequent opinions. Hall, 274 Kan. at 276;
Moran v. State,
267 Kan. 583, 599,
985 P.2d 127 (1999); Knudsen v. Kansas Gas and
Electric Co.,
248 Kan. 469, 474,
807 P.2d 71 (1991).
With this context in mind, we now turn to Swanson's two issues.
Swanson Failed to Prove Injury to His Reputation
Swanson argues there was sufficient evidence to establish reputational harm, so
the panel majority erred by affirming the district court's decision to grant Marcus' motion
for judgment as a matter of law. We disagree with Swanson and agree with the panel
majority. The district court's holding was correct. As a matter of law, Swanson failed to
prove injury to his reputation.
Standard of Review
A motion for a directed verdict is now referred to as a motion for a judgment as a
matter of law. This court's standard of review of a ruling on a motion for a judgment as a
matter of law is the following:
9
"'When ruling on a motion for directed verdict, the trial court is required to
resolve all facts and inferences reasonably to be drawn from the evidence in favor of the
party against whom the ruling is sought. Where reasonable minds could reach different
conclusions based on the evidence, the motion must be denied. A similar analysis must be
applied by an appellate court when reviewing the grant or denial of a motion for directed
verdict.'" Wilkinson v. Shoney's, Inc., 269 Kan. 194, 202,
4 P.3d 1149 (2000) (quoting
Calver v. Hinson, 267 Kan. 369, Syl. ¶ 1,
982 P.2d 970 [1999]).
We owe no deference to the district court's decision. Siruta v. Siruta,
301 Kan. 757, 766,
348 P.3d 549 (2015).
Discussion
As we explained in Gobin III, "damage to one's reputation is the essence and
gravamen of an action for defamation. Unless injury to reputation is shown, plaintiff has
not established a valid claim for defamation, by either libel or slander, under our law."
232 Kan. at 6. Injury to reputation is "to diminish the esteem, respect, goodwill or
confidence in which the [claimant] is held, or to excite adverse, derogatory or unpleasant
feelings or opinions against him." Moran,
267 Kan. at 590. Reputational damage may be
inferred so long as the inferences are reasonable. Moran,
267 Kan. at 590.
With these rules in mind, we turn to Swanson's claims of reputational harm. First,
Swanson directs us to his 3.5 Yelp star rating as evidence that his reputation was harmed
in the community. Neufeld testified the Swanson Center had 19 ratings on Yelp. Of these
ratings, 18 were 5-star ratings, with Marcus' 1-star rating bringing the Swanson Center's
overall rating to 3.5. Judge Warner suggests the 3.5-star rating was evidence that
Swanson's reputation was affected "in a real [and] measurable sense." Marcus, 2022 WL
3570349, at *15.
10
We do not find this reasoning compelling. Proof of injury to reputation requires
evidence to establish a causal relationship between the defamatory statements and the
injury to Swanson's reputation. The defamatory statements at issue were the text of the
Yelp post. These statements did not reduce the star rating. Rather, the 3.5-star rating was
caused by Marcus' 1-star rating, which was mathematically aggregated with the other
ratings to produce a numerical outcome. The 1-star rating itself was not defamatory
because it was not a statement that may be true or false. It was an opinion. See Kimzey v.
Yelp! Inc., 836 F.3d 1263, 1269-70 (9th Cir. 2016) (Yelp star ratings are opinions). Put
simply, the 3.5-star rating cannot establish reputational harm because the reduced rating
was not caused by a defamatory statement. And even if we view the defamatory
statements and the reduced star-rating as inseparable, Swanson has provided no evidence
that the 3.5-star rating affected his reputation in the community. At most, Swanson
testified that Yelp was important to potential customers and Neufeld worried the reviews
might turn away future clients.
Swanson's second argument for reputational harm is that the content of the reviews
deterred future patients. He testified:
"I am hoping that maybe as a result of this that review can finally be taken down.
Because not only does it bother me, of course it does, every time I check it for myself, it
does bother me, it affects my reputation, which I worked really hard to try to rebuild.
And I think because of its exposure on Yelp, which is like a number one review site, I
think a lot of people see it, and I am sure—I can't quantitate. I don't know how many
people have seen it and then never see me as a patient. But I have to think it is a lot. Just
because this is just common knowledge. We all know that Yelp matters to businesses."
(Emphasis added.)
Swanson here recognized his reputation had suffered for reasons unrelated to
Marcus. Notably, Swanson had been publicly censured by the Kansas and Missouri
11
medical boards, had been a defendant in 30 malpractice lawsuits, had been the subject of
several negative articles in the media, and had received other negative reviews online.
Even so, Swanson had worked hard to rebuild his reputation and believed it was
excellent. In fact, Swanson testified that in the year following Marcus' Yelp reviews his
revenue, profit, and patient count increased. He continued to be published in peer
reviewed journals, serve as a peer reviewer, and receive invitations to speak at
professional conferences.
The other witness, Neufeld, testified that she sought treatment from Swanson both
before and after Marcus' Yelp review. Neufeld had done research on potential physicians
before her first procedure. She had discovered one of the negative articles but found it
sensational and decided to meet Swanson anyway. She then had her procedure and was
pleased with the results. She also conducted research before her second procedure.
During this process, she came across Marcus' review of the Swanson Center and
described it to Swanson when they met during her consultation. She wanted him to know
it was posted because it could hurt his practice. She was concerned about how others
might perceive Swanson after reading the Yelp review. It did not stop her from seeking
out his care. She thought her second procedure had a positive outcome and posted a
positive Yelp review to offset Marcus'. Based on this testimony, Swanson argues it is a
reasonable inference that prospective clients who were unfamiliar with Swanson's work
would be deterred.
Marcus replies that Swanson could not identify a single patient that was dissuaded.
We acknowledge that would be difficult to do because Swanson is unlikely to have
contact with potential patients who may have been dissuaded, but even so, Kansas law
requires some evidence of reputational harm.
12
Evidence of reputational harm cannot be speculative. In Clark v. Time, Inc., a
country club manager brought a defamation claim based on a negative review posted
online. The post referred to the manager as "Vlad the Impaler." The court dismissed the
claim on summary judgment because, among other things, the plaintiff failed to prove
reputational damage. Applying Kansas law, the court explained "plaintiff conceded . . .
that he lost no business opportunities because of the article's publication." Clark v. Time,
Inc., 242 F. Supp. 3d 1194, 1217 (D. Kan. 2017). Moreover, plaintiff's argument "that his
reputation has sustained damage because anyone who searches the internet for plaintiff's
name will find the article is simply unsupported speculation."
242 F. Supp. 3d at 1217.
The court noted the plaintiff "assumes that the reader will form a negative opinion about
plaintiff after reading the article."
242 F. Supp. 3d at 1217. Both Swanson and Neufeld
make similar assumptions.
In Moran, 267 Kan. 583, plaintiff was the former head of the University of Kansas
Medical Center's Department of Cardiothoracic Surgery. Four KUMC administrators
issued four communications, in newspapers or online, that criticized Moran and his
stewardship of the heart transplant program. Moran filed a defamation claim, and the
defendants moved for summary judgment. One issue was whether Moran suffered
reputational harm. The district court granted summary judgment for the defendants, but
this court reversed, despite the evidence for reputational harm being "unquestionably
thin." 267 Kan. at 590. Moran's interrogatories revealed that, since the communications,
he had received less interest in leading transplant programs at other hospitals and from
academic journals. Also other publications stopped inviting him to submit articles. We
explained:
"Moran's beliefs, as expressed in his answers to interrogatories, do not amount to much
by themselves. In order to amount to anything, the inferences Moran would have us draw
must be reasonable. In the circumstances, a decrease after publication of defendants'
13
statements for requests for Moran's professional participation would seem to be the sort
of detrimental consequence that might be expected from colleagues' defamatory
statements about his professional conduct. Thus, it would be reasonable to infer a causal
link between the decreased demand for his professional participation and the defendants'
statements." 267 Kan. at 590-91.
The above passage shows that a reasonable inference must be tethered to a fact in
the world, such as declining job or publication offers. From that fact, a reasonable
inference can be made that there was a causal link between the defamatory statement and
reputational harm. Here, neither Swanson nor Neufeld ties their reputational damage
testimony to any external fact. We cannot find causation because Swanson never directs
us to an effect. Rather, the relevant testimony relies on speculative statements about
possible states of affairs.
Not surprisingly, Swanson did not know of potential patients who saw the review
and declined to seek his services. Neufeld was concerned that others might not hire
Swanson but provided no testimony that she, or anyone else, had considered Swanson but
was discouraged or deterred because of Marcus' false review. Rather than demonstrating
harm, Swanson testified instead to stable or increasing business and professional
opportunities. Based on the testimony, Swanson's inferences of harm are unsupported by
fact. He falls far short of the "unquestionably thin" evidence showing reputational harm
in Moran. Kansas law requires more. See Zaid v. Boyd, No. 22-1089-EFM, 2022 WL
4534633, at *9 (D. Kan. 2022) (unpublished opinion) (noting "there must be specific
facts to support the inference of reputational damage, such as lost sales, lost profits, 'a
decrease after publication of defendants' statements for requests for [plaintiff]'s
professional participation,' or a decline in clients or revenue"). We conclude that
Swanson's second argument for causal proof of reputational harm is unpersuasive
because the harm is speculative.
14
Swanson's third attempt to establish reputational harm is based on his testimony
that he was personally upset by the Yelp reviews and devoted substantial time and
resources to have the reviews taken down. Swanson enlisted his staff in this task and even
hired a consultant, ultimately spending hundreds of hours on the project. But the injuries
to Swanson's feelings and pocketbook are not reputational injuries. See Gobin III, 232
Kan. at 7. Reputational injuries are relational. See Gomez v. Hug,
7 Kan. App. 2d 603,
611-12,
645 P.2d 916 (1982) (quoting Prosser, Law of Torts, p.737 [4th ed. 1971]) "In
either form, defamation is an invasion of the interest in reputation and good name. This is
a 'relational' interest since it involves the opinion which others in the community may
have, or tend to have, of the plaintiff."). Though pecuniary harm may be considered
evidence of reputational damage, Swanson's economic injury was not caused by a third
party's negative perception of him based on a reputational decline. Instead, the causal
connection was from the false statements to his own mental anguish, not a damaged
reputation. As Marcus persuasively argues, allowing this evidence to establish
reputational harm would make any defamation claim actionable so long as the plaintiff
spent time and money to counter the alleged defamatory statement.
Swanson makes other arguments. He first suggests the district court and majority
panel erroneously required him to show "typical" defamation damages. Judge Warner
levels a similar charge. Marcus, 2022 WL 3570349, at *15 (Warner, J., concurring in part
and dissenting in part). The panel majority, however, correctly recognized the diversity of
ways that defamation plaintiffs may prove reputational damage. Marcus,
2022 WL
3570349, at *11. The comparison to the facts of Moran and other cases does not seek to
require such evidence, but to illustrate that Swanson did not marshal any evidence of
reputational harm at trial. Along these lines, Swanson suggests the district court and the
majority panel ignored controlling legal standards by reweighing evidence. But Marcus
15
correctly points out that the issue is not a reweighing of evidence, but that there was no
evidence to be reweighed.
Next, Swanson argues the district court and panel majority erred by focusing on
Swanson's counsel's statements in closing argument. Swanson is correct that closing
arguments are not evidence. Wilson v. Williams, 261 Kan. 703, 710,
933 P.2d 757 (1997).
The panel majority discussed the closing argument, and the district court referenced the
argument in its order granting judgment as a matter of law. Marcus,
2022 WL 3570349,
at *7. Nonetheless, we conclude the panel was correct that the district court referenced
the closing argument merely to illuminate the lack of evidence on reputational harm,
rather than as a basis for its ruling. In fact, the panel specifically explains the district
court's analysis of the closing argument "tends to confirm the evidentiary gap but does
not in any legal way establish it." Marcus,
2022 WL 3570349, at *7. We see no error.
Finally, Swanson briefly suggests the district court usurped the jury's fact-finding
role and therefore denied him his constitutional right to a trial by jury. He made a similar
argument before the panel, which appropriately recognized that this argument is not a
standalone claim under the Kansas Constitution Bill of Rights section 5, but is a
reframing of the "reweighing the evidence" argument using constitutional language.
Marcus, 2022 WL 3570349, at *8. So the panel was correct that Swanson's argument
fails.
Accordingly, we affirm the district court and panel majority's rulings that Swanson
failed to establish reputational harm caused by the defamatory statements.
16
Kansas Abolished Presumed Damages and Defamation Per Se
Swanson's second issue on appeal asserts he was not required to establish
reputational harm because the jury found Marcus acted with malice and the common law
doctrine of defamation per se means damages are presumed. Put another way, Swanson
asks us to hold that a finding of actual malice would relieve a claimant of proving
reputational harm. Marcus responds that we abolished defamation per se and presumed
damages in Gobin III. We agree with Marcus.
Standard of Review
We have unlimited review over interpretation of our precedents. Scott v. Hughes,
294 Kan. 403, 412,
275 P.3d 890 (2012). Additionally, the core question here poses a
question of common law, which is inherently a question of law over which we have
unlimited review. See Wilkinson v. Shoney's, Inc.,
269 Kan. 194, 203,
4 P.3d 1149 (2000)
("Whether to adopt or recognize a new cause of action falling within the common law of
tort or negligence is a question of law over which we have unlimited review.").
Discussion
Marcus and the panel majority suggest we abolished defamation per se in Gobin
III. Marcus, 2022 WL 3570349, at *3. We released Gobin III eight years after Gertz,
explaining, "'Damages recoverable for defamation may no longer be presumed; they must
be established by proof, no matter what the character of the libel. '" (Emphasis added.)
Gobin III,
232 Kan. at 4. And "damage to one's reputation is the essence and gravamen of
an action for defamation. Unless injury to reputation is shown, plaintiff has not
established a valid claim for defamation, by either libel or slander, under our law."
232
Kan. at 6.
17
Swanson makes several arguments that we have not abolished presumed damages.
First, he directs us to our discussion about whether other states required reputational harm
before other damages could be recovered. From our reference to New York's law, he
gleans: "[A]bsent proof of harm to reputation, a plaintiff may not recover damages for
mental anguish on a claim of defamation unless plaintiff proves malice." 232 Kan. at 7.
The quotation Swanson relies on occurred in the context of a discussion of damage
sequencing, which considers whether reputational injury must first be established before
other damages are recoverable. After we concluded that injury to reputation was a
requirement of any defamation action, we noted that Florida permitted plaintiffs to
recover damages for mental anguish absent a showing of reputational harm. Gobin III,
232 Kan. at 6-7. We then observed that New York had a different rule. Next, we clarified
that "[w]e agree with the New York rule that the plaintiff in an action for defamation
must first offer proof of harm to reputation; any claim for mental anguish is 'parasitic,'
and compensable only after damage to reputation has been established."
232 Kan. at 7;
Richie v. Paramount Pictures Corp.,
544 N.W. 2d 21, 30 (Minn. 1996) (citing Gobin III
and explaining "courts in other jurisdictions have found that New York does have a
reputational harm prerequisite in defamation cases").
In Moran, we quoted Gertz to elaborate:
"'We need not define "actual injury," as trial courts have wide experience in framing
appropriate jury instructions in tort actions. Suffice it to say that actual injury is not
limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted
by defamatory falsehood include impairment of reputation and standing in the
community, personal humiliation, and mental anguish and suffering. Of course, juries
must be limited by appropriate instructions, and all awards must be supported by
competent evidence concerning the injury, although there need be no evidence which
18
assigns an actual dollar value to the injury. '" 267 Kan. at 599 (quoting Gertz, 418 U.S. at
349-50).
In Gobin III we agreed with the sequencing of damages outlined in the New York
rule but we also rejected the Gertz rule that reputational harm is not required if malice is
shown. Thus our reference to the sequencing of damages—injury to reputation first, then
other damages may follow—does not contradict Gobin III's earlier statement that
"[d]amages recoverable for defamation may no longer be presumed; they must be
established by proof, no matter what the character of the libel." 232 Kan. at 5.
Second, Swanson argues that two post-Gobin III cases suggest malice may relieve
a plaintiff from proof of reputation injury or damages. In Turner v. Halliburton Co., 240
Kan. 1, 11,
722 P.2d 1106 (1986), we resolved the case and then explained "it is not
necessary for us to consider the question of whether Gobin [III] requires actual proof of
damage to reputation when the defendant is not a member of the news media."
240 Kan.
at 11. In Moran, 267 Kan. at 593, we noted that "[h]aving determined that the district
court erred in granting defendants' summary judgment, we do not reach the second issue
raised of whether actual malice would relieve Moran of the burden of showing injury to
reputation."
Swanson relies on these cases to argue that Gobin III's abolition is not absolute,
but our prior refusals to reach that issue means that we made no decision one way or
another about the issue of absolute abolition. Put differently, Gobin III's scope was not
diminished in either Turner or Moran.
In fact, additional language from Moran supports Marcus' view. Perhaps because
malice had not been alleged in Gobin, Moran first states: "This court has not squarely
decided whether in Kansas any and all defamation plaintiffs must allege and prove actual
19
damages rather than relying on the theory of presumed damages." Moran, 267 Kan. at
598. Regardless, Moran explained: "Gertz changed the law in Kansas. Damages
recoverable for defamation, whether per se or not, could no longer be presumed but must
be proven." 267 Kan. at 599. The latter statement supports the holding in Gobin III. And
our most recent decision touching on the issue directly quotes Moran's statement that
defamation per se damages cannot be presumed. Hall,
274 Kan. at 276. We clarify here
that defamation per se and presumed damages have been abolished in all instances.
Our interpretation of Gobin III is consistent with the way other courts have
interpreted it. See, e.g., In re Rockhill Pain Specialists, P.A., 55 Kan. App. 2d 161, 185-
86,
412 P.3d 1008 (2017); Polson v. Davis,
895 F.2d 705, 708 (10th Cir. 1990); RX
Savings, LLC v. Besch, No. 19-2439-DDC-JPO,
2019 WL 6974959, at *3 (D. Kan. 2019)
(unpublished opinion) (quoting Gobin III,
232 Kan. at 5); Waste Management of Texas,
Inc. v. Texas Disposal Systems Landfill, Inc.,
434 S.W.3d 142, 146 n.9 (Tex. 2014);
Bierman v. Weier,
826 N.W.2d 436, 456 n.8 (Iowa 2013); MacDonald v. Riggs,
166 P.3d
12, 18 n.20 (Ala. 2007). Academic commentary also suggests we completely abolished
defamation per se in Gobin III. Seager, Jackpot! Presumed Damages Gone Wild—and
Unconstitutional, 31-WTR Comm. Law. 1, 31 (2015).
We recognize Gobin III places us in the minority. See Krieger, Defamation Per Se
Cases Should Include Guaranteed Minimum Presumed Damage Awards to Private
Plaintiffs, 58 San Diego L. Rev. 641, 662-63 n.133 (2021) (outlining the 40 states
allowing for some form of presumed damages for defamation per se); Seager, 31-WTR
Comm. Law. at 31 ("A majority of states have retained the common-law doctrine of
presumed damages for defamation per se."). But U.S. Supreme Court precedent does not
prohibit Kansas from abolishing presumed damages and thus increasing the protection for
defendants in a defamation action. See Bierman, 826 N.W.2d at 449 ("Iowa can make its
defamation law more protective of defendants than the First Amendment requires.").
20
Because Gobin III abolished defamation per se and presumed damages, we reject
Swanson's argument to the contrary. Swanson frames his argument as a dispute over the
proper reading of Gobin III, but Marcus correctly notes that Swanson's argument includes
an implicit call to change the law and allow for defamation per se when actual malice is
shown. Swanson's argument, therefore, implicates stare decisis concerns.
"Stare decisis recognizes that once a point of law has been established by a court,
that point of law will generally be followed by the same court and all courts of lower rank
in later cases when the same legal issue is raised." In re Equalization Appeal of Walmart
Stores, Inc., 316 Kan. 32, 62,
513 P.3d 457 (2022). "Stare decisis—while not a 'rigid
inevitability'—serves as a 'prudent governor on the pace of legal change.'" McCullough v.
Wilson,
308 Kan. 1025, 1035,
426 P.3d 494 (2018) (quoting State v. Jordan,
303 Kan.
1017, 1021,
370 P.3d 417 [2016]). The doctrine's application "'ensures stability and
continuity—demonstrating a continuing legitimacy of judicial review.'" Wilson, 308 Kan.
at 1035-36 (quoting Crist v. Hunan Palace, Inc.,
277 Kan. 706, 715,
89 P.3d 573 [2004]).
Stare decisis considerations are particularly persuasive "in cases involving property and
contract rights, where reliance interests are involved" and when "the legislature is free to
alter a statute in response to court precedent with which it disagrees but declines to do
so." Crist,
277 Kan. at 715 (reliance interests related to property and contract rights);
State v. Quested,
302 Kan. 262, 278,
352 P.3d 553 (2015) (Legislature declining to alter).
"While 'stare decisis is not an inexorable command,' this court endeavors to adhere
to the principle unless clearly convinced a rule of law established in its earlier cases 'was
originally erroneous or is no longer sound because of changing conditions and that more
good than harm will come by departing from precedent.'" State v. Hambright, 310 Kan.
408, 416,
447 P.3d 972 (2019) (quoting State v. Spencer Gifts, LLC,
304 Kan. 755, 766,
374 P.3d 680 [2016]).
21
The majority below suggests that changing circumstances might warrant a
reconsideration of Gobin III. Marcus, 2022 WL 3570349, at *10. It notes defamation law
was created before the internet age. Indeed, the tort has a long history tracing back to
English courts. See Hirth, Laying to Rest the Ecclesiastical Presumption of Falsity: Why
the Missouri Approved Instructions Should Include Falsity as an Element of Defamation,
69 Mo. L. Rev. 529, 529 (2004) ("Continually modified by kings, ecclesiastical courts,
state legislatures, and the United States Supreme Court, the modern law of defamation is
a thicket of presumptions, privileges, and plaintiff-specific pleadings.").
But we also recognize the importance of stability. Gobin III has been the law for
over 40 years and has become universally accepted as abolishing defamation per se and
presumed damages in Kansas. Today we reaffirm Gobin III's holding and decline to upset
the continuity that follows from its continued application. We are not convinced that
Gobin III is no longer sound because of the internet, and we are not convinced that
disturbing Gobin III would do more good than harm.
Other courts have disagreed. W.J.A. v. D.A., 210 N.J. 229, 233,
43 A.3d 1148
(2012). But we find company with the New Mexico Supreme Court, which rejected a
request to reimplement presumed damages in an internet era case, though the defamatory
statement was not posted online. See Smith v. Durden,
276 P.3d 943, 943 (N.M. 2012)
("The issue before the Court is whether New Mexico requires a showing of injury to one's
reputation to establish liability for defamation. We hold that it does, as injury to
reputation is the very essence of the tort of defamation.").
In light of our holdings today, we need not reach Swanson's remaining arguments,
which all depend on the availability of presumed damages or recoverable damages
without proof of reputational injury.
22
CONCLUSION
Swanson failed to prove Marcus' defamatory statements injured his reputation.
Consequently, he cannot show recoverable damages.
The judgment of the Court of Appeals affirming the district court is affirmed. The
judgment of the district court is affirmed.
WALL, J., not participating.
23
