Civil Jury Instructions – Defamation; Boundary by Acquiescence – Comment period expires Sept. 9, 2022

The following Model Utah Civil Jury Instructions addressing Defamation have been updated and published.

CV1602 – Elements of a Defamation Claim

CV1605 – Definition: False Statement

The following Model Utah Civil Jury Instructions addressing boundary by Acquiescence have been drafted and published.

CV901 – Boundary by Acquiescence

CV902 – Visible Line

CV903 – Occupy Defined

CV904 – Mutual Acquiescence

CV905 – Exception to Silence Equaling Acquiescence

Please reference the instruction(s) in your comments. Although the comment period runs through March 27, 2021, the instructions are ready for use. The Model Civil Jury Instructions Committee will consider all comments made during the comment period and may revise the instructions as appropriate. To view all MUJI Civil instructions please visit the MUJI website – here.

The Judicial Council also encourages judges and practitioners to continuously share their experiences using any of the published instructions with the Model Civil Jury Instructions Committee. To view the Committee’s work please visit the MUJI Civil Committee website – here.

This entry was posted in Civil, Boundary by Acquiescence, Civil, Defamation.

Kade Olsen

August 12, 2022 at 3:58 pm

Dear Committee-

I write to comment on Model Jury Instruction No. CV1605 (“Definition: False Statement”).

I suggest the Committee use “reasonably” as a qualifier in the defamation-by-implication instruction. So, the instruction would read “that it reasonably implies a fact that is true.”

There is not much guidance from Utah courts on implied defamation. The one case from the Utah Supreme Court—West v. Thomson Newspapers, 872 P.2d 999 (Utah 1994)—seemed to at least implicitly endorse the doctrine. There the Court explained that it was the “implication arising from the statement and the context in which it was made, not the statement itself, which forms the basis of [ the plaintiff’s] claim.” Id. at 1011. Which, in turn, made “this is a defamation-by-implication claim.” Id. Then, in a footnote, the Court cited a leading treatise’s explanation of the doctrine. Id. at 1011 n. 18.

But that was the beginning and the end of the Court’s analysis, because the defendant had “not appealed [the] ruling” that the implication of its republished statements was false. Id. at 1011.

Trial courts in Utah have applied their own gloss to the defamation by implication, but have generally supported using a “reasonable” modifier. In Mile High Contracting, Inc. v. Deseret News Pub. Co., No. 170906024, 2018 WL 7374786, at *8 (Utah Dist.Ct. Mar. 16, 2018), Judge Scott explained that to “state a defamation-by-implication claim, the plaintiff] must show that the claimed implication could reasonably be drawn from the article itself.” The Tenth Circuit, in interpreting Utah law, used the same “reasonability” qualifier. See, e.g., Hogan v. Winder, 762 F.3d 1096, 1106 (10th Cir. 2014) (“In this evaluation of context, we should examine . . . the likely effect on the reasonable reader.”). And, for whatever its worth, the West court cited Professor Smolla’s explanation of the false-by-implication doctrine, which suggested that courts consider “the inference that the ordinary reasonable recipient may draw West, 872 P.2d at 1011 n.18 (quoting odney A. Smolla, Law of Defamation § 4.05(1) (1994)).

Others Utah courts, however, have not imposed a “reasonable” implication requirement. E.g., Layton Companies, Inc v. SIRQ, Inc., No. 070908853, 2014 WL 12661713, at *8 (Utah Dist.Ct. Jan. 11, 2014) (plaintiff’s “defamation claim consists of statements or implications the jury properly could have concluded were defamatory”).

But putting the (somewhat contradictory) state of Utah law aside, including a reasonability modifier makes doctrinal sense. As one Court put it, “because the Constitution provides a sanctuary for truth, a libel-by-implication plaintiff must make an especially rigorous showing where the expressed facts are literally true.” Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1092–93 (4th Cir. 1993) (imposing an intent requirement).

Though a minor change, including a reasonability modifier should make a difference. Borrowing from the commercial speech world, courts and juries have used the reasonability framework to limit out “a mere possibility that the advertisement might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner.” Lavie v. Procter & Gamble Co., 129 Cal. Rptr. 2d 486, 495 (2003).

Finally, adding a one-word reasonability modifier shouldn’t confuse juries That standard is often used in tort law, and a reasonability requirement is scattered throughout the other defamation instructions. See Model Jury Instruction Nos. CV1604A-E; see also Milkovich v. Lorain J. Co., 497 U.S. 1, 20 (1990) (using a reasonability limit for the fact/opinion question).

Thank your consideration,

Kade N. Olsen

One thought on “Civil Jury Instructions – Defamation; Boundary by Acquiescence – Comment period expires Sept. 9, 2022”

Kade Olsen

August 12, 2022 at 3:58 pm

Dear Committee-

I write to comment on Model Jury Instruction No. CV1605 (“Definition: False Statement”).

I suggest the Committee use “reasonably” as a qualifier in the defamation-by-implication instruction. So, the instruction would read “that it reasonably implies a fact that is true.”

There is not much guidance from Utah courts on implied defamation. The one case from the Utah Supreme Court—West v. Thomson Newspapers, 872 P.2d 999 (Utah 1994)—seemed to at least implicitly endorse the doctrine. There the Court explained that it was the “implication arising from the statement and the context in which it was made, not the statement itself, which forms the basis of [ the plaintiff’s] claim.” Id. at 1011. Which, in turn, made “this is a defamation-by-implication claim.” Id. Then, in a footnote, the Court cited a leading treatise’s explanation of the doctrine. Id. at 1011 n. 18.

But that was the beginning and the end of the Court’s analysis, because the defendant had “not appealed [the] ruling” that the implication of its republished statements was false. Id. at 1011.

Trial courts in Utah have applied their own gloss to the defamation by implication, but have generally supported using a “reasonable” modifier. In Mile High Contracting, Inc. v. Deseret News Pub. Co., No. 170906024, 2018 WL 7374786, at *8 (Utah Dist.Ct. Mar. 16, 2018), Judge Scott explained that to “state a defamation-by-implication claim, the plaintiff] must show that the claimed implication could reasonably be drawn from the article itself.” The Tenth Circuit, in interpreting Utah law, used the same “reasonability” qualifier. See, e.g., Hogan v. Winder, 762 F.3d 1096, 1106 (10th Cir. 2014) (“In this evaluation of context, we should examine . . . the likely effect on the reasonable reader.”). And, for whatever its worth, the West court cited Professor Smolla’s explanation of the false-by-implication doctrine, which suggested that courts consider “the inference that the ordinary reasonable recipient may draw West, 872 P.2d at 1011 n.18 (quoting odney A. Smolla, Law of Defamation § 4.05(1) (1994)).

Others Utah courts, however, have not imposed a “reasonable” implication requirement. E.g., Layton Companies, Inc v. SIRQ, Inc., No. 070908853, 2014 WL 12661713, at *8 (Utah Dist.Ct. Jan. 11, 2014) (plaintiff’s “defamation claim consists of statements or implications the jury properly could have concluded were defamatory”).

But putting the (somewhat contradictory) state of Utah law aside, including a reasonability modifier makes doctrinal sense. As one Court put it, “because the Constitution provides a sanctuary for truth, a libel-by-implication plaintiff must make an especially rigorous showing where the expressed facts are literally true.” Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1092–93 (4th Cir. 1993) (imposing an intent requirement).

Though a minor change, including a reasonability modifier should make a difference. Borrowing from the commercial speech world, courts and juries have used the reasonability framework to limit out “a mere possibility that the advertisement might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner.” Lavie v. Procter & Gamble Co., 129 Cal. Rptr. 2d 486, 495 (2003).

Finally, adding a one-word reasonability modifier shouldn’t confuse juries That standard is often used in tort law, and a reasonability requirement is scattered throughout the other defamation instructions. See Model Jury Instruction Nos. CV1604A-E; see also Milkovich v. Lorain J. Co., 497 U.S. 1, 20 (1990) (using a reasonability limit for the fact/opinion question).

Thank your consideration,

Kade N. Olsen