An Indiana Court of Appeals panel was asked to consider whether a reporter’s use of the word “incompetent” to describe a former Elkhart teacher’s termination was defamatory language – and ultimately whether a newspaper had the right to publish a story using the contested word.
Kevin Pack, a former German teacher at Northridge High School in Middlebury, was terminated from his position in April 2014 after a school board hearing found Pack had engaged in immorality, insubordination and neglect of duty. Pack filed a federal suit against the school board, alleging he was fired not for the reasons listed, but rather because he was an atheist.
Upon the federal filing, former Elkhart Truth reporter Jeff Parrott published a story about Pack’s federal claim and included in his reporting a statement saying Pack had been terminated in part because of his “incompetence” as a teacher. Pack then filed suit against the Elkhart Truth, alleging defamation for the use of the word “incompetent.”
But the newspaper moved to dismiss under Indiana’s Strategic Lawsuit Against Public Participation Act, or the Anti-SLAPP statutes, arguing it had not acted with actual malice but instead had exercised its right to free speech on a matter of public concern. The Elkhart Superior Court agreed and dismissed Pack’s complaint.
The case then went before an appellate panel of judges Edward Najam, Robert Altice and Paul Mathias, who heard oral arguments March 28 in Kevin Pack v. Truth Publishing Company, Inc., and John S. Dille, III, 18A-PL-01742.
To begin, appellant counsel James Ayers asserted the “sweeping claims of public interest” were not justified as set out in Gresk v. Demetris, 96 N.E.3d 564 (Ind. 2018) and that the issue was not an Anti-SLAPP case. To prove that point, Ayers argued the finding of facts presented by the school board – which allegedly provided the factual basis for Pack’s termination – were inadmissible under Evidence Rule 803.
But attorney Robert Thornburg, counsel for the newspaper, combatted that assertion by citing an affidavit presented by the school’s superintendent, which stated documents provided to Parrott for his reporting were business records and therefore were an exception to the hearsay rule.
Ayers rejected that argument, claiming the reporter’s request to obtain the findings of fact from the school board was not made pursuant to the Freedom of Information Act. Thus, he argued Parrott should never had gained access to them.
But Altice interjected, noting Ayers had not raised at the trial level any argument as to whether those findings should have been produced to a third party.
“Yeah, sure we did,” Ayers countered. “We argued all the way along that it shouldn’t have been released and that he shouldn’t have utilized it.”
Finally, turning to the core issue of discussion, Ayers contended that by using the word “incompetent,” Parrott dropped an “atomic bomb” that would effectively end Pack’s career. He said the word was a term of art inserted into the newspaper’s coverage of Pack’s termination and was, thus, defamatory.
“The use of the word ‘incompetent,’ when you’re determining whether something is defamatory, is whether the word would produce any different effect on the audience,” Thornburg responded.
Thornburg proceeded to explain that the use of the word “incompetent” would not have an adverse impact on the audience reading the article and was substantially true under Journal-Gazette Co. v. Bandido’s, Inc., 712 N.E.2d 446 (Ind. 1999). He noted the audience was the general public and, despite Ayers’ argument to the contrary, even if the word were removed from the article, it would make no difference because the school board’s press release argued essentially the same thing.
Thornburg further pointed out that the reporter and audience were not members of the judicial branch and that the general use and understanding of “incompetence” was synonymous with “neglect of duty.”
“But in this context, it also has legal meaning,” Altice noted.
“If you refer to someone’s incompetence, you’re criticizing them as unable to do their job or task properly,” Thornburg said. “So when you read through the findings that the school corporation had made, those things are there.”
Regardless, Ayers defended his assertion that Parrott did not properly investigate and maintained that he acted with actual malice in his reporting.
The full argument can be viewed here.