Opinion
No. 1:19-cv-00976-RLY-MG
2021-06-01
Derek DALY, Plaintiff, v. NEXSTAR BROADCASTING, INC. and WISH-TV, Defendants.
Timothy R. Stoesz, Stoesz & Stoesz LLC, Westfield, IN, for Plaintiff. Daniel P. Byron, Jessica Laurin Meek, Margaret M. Christensen, Dentons Bingham Greenebaum LLP, Indianapolis, IN, for Defendants.
Timothy R. Stoesz, Stoesz & Stoesz LLC, Westfield, IN, for Plaintiff.
Daniel P. Byron, Jessica Laurin Meek, Margaret M. Christensen, Dentons Bingham Greenebaum LLP, Indianapolis, IN, for Defendants.
ENTRY ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
RICHARD L. YOUNG, JUDGE
During an off-air conversation with a reporter in 2018, Bob Lamey, a long-time Indianapolis Colts announcer, used the N-word while recounting an incident that occurred 35 years earlier. That original incident took place during a live radio interview in 1983 when Plaintiff, Derek Daly, a racecar driver, used the N-word. Lamey quickly apologized and announced his retirement. While the reporting initially focused on Lamey's use of the N-word, attention soon shifted to identifying the original source of the story. Defendant, Nexstar Broadcasting, Inc., learned that Daly, who worked as a motorsports analyst with WISH-TV for the Indianapolis 500 and Brickyard 400, was the source and fired him. Nexstar also ran a news report on WISH-TV identifying Daly as the source of the story.
Nexstar contends that WISH-TV is not a legal entity; it is a simply a trade name. Daly does not appear to contest that. Summary judgment is appropriate on all claims against WISH-TV.
Daly brought this suit for defamation, wrongful termination, breach of contract, and tortious interference with business relations. Nexstar now moves to dismiss Daly's suit under Indiana's Anti-SLAPP Act, Indiana Code § 34-7-7 et seq. and, alternatively, for summary judgment. For the reasons that follow, that motion is GRANTED .
I. Background
The court reviews the facts and draws all inferences from those facts in the light most favorable to Daly, the nonmoving party. Knopick v. Jayco, Inc. , 895 F.3d 525, 527 (7th Cir. 2018).
On or around August 15, 2018, Indianapolis Colts radio announcer, Bob Lamey, gave an interview at the Indianapolis Colts training camp. (Filing No. 64-1, Deposition of Bob Lamey ("Lamey Dep.") at 7). After the interview concluded, the interviewer, Joe Staysniak, asked if Lamey had ever said something that was misconstrued or embarrassing on air. (Filing No. 64-2 Deposition of Joe Staysniak ("Staysniak Dep.") at 12). Lamey then told the story of Daly using the N-word during a live interview at the Indianapolis Motor Speedway in 1983. (Lamey Dep. at 12-13; Staysniak Dep. at 15-16, 21). During that interview, Daly was asked if he was holding back his speed during the race. (Lamey Dep. at 15). The way Lamey told it, Daly responded, "There's no [N-words] in the woodpile", but in telling the story, Lamey actually said the N-word. (Id. ).
According to the Oxford English Dictionary, the phrase "[N-word] in the woodpile means, "a concealed motive or unknown factor affecting a situation in an adverse way." (Oxford English Dictionary, https://www-oed-com.ezproxy.brunel.ac.uk/viewdictionaryentry/Entry/126934?print#eid34823611, (last accessed May 17, 2021).
Sharlene Birdsong, a sound engineer, was off to the side with the sound equipment and overheard Lamey's story. (Filing No. 64-7, Deposition of Sharlene Birdsong ("Birdsong Dep.") at 11; Staysniak Dep. at 13; Lamey Dep; at 13). According to Birdsong, Lamey quoted Daly as saying, "There aren't any [N-words] in this race." (Birdsong Dep. at 13). Hearing Lamey use the N-word upset Birdsong, so she reported the incident to her employer, Emmis Communications. (Birdsong Dep. at 10, 16). The Colts then learned of this incident and approached Lamey, who announced his retirement on August 19, 2018. (Lamey Dep. at 19).
News of Lamey's retirement was "dominating the airwaves", and there was speculation about the circumstances surrounding the announcement. (Filing No. 64-4, Deposition of Randy Ingram ("Ingram Dep.") at 30). A news report on August 21, 2018 explained that Lamey's retirement was related to his use of a racial slur. (Filing No. 64-6, Channel 13 Article: "13 Investigates: Colts announcer Bob Lamey Accused of Racial Slur Days Before Retiring"). That report did not, however, identify the original source of Lamey's story.
On August 22, 2018, Anthony Calhoun, WISH-TV's Sports Director, received a phone call from "Source 1". (Filing No. 64-3, Deposition of Anthony Calhoun ("Calhoun Dep.") at 30). Calhoun has used Source 1 five to ten times, and Source 1 has never been factually incorrect. (Id. at 89). Source 1 said that Lamey's story was about Daly. (Id. at 30). Calhoun then received a call from "Source 2", whom Calhoun has used approximately 10 times, who confirmed Daly as the source of the story. (Id. at 31, 90). Calhoun took this information to Al Carl, WISH-TV's News Director. (Filing No. 64-8, Deposition of Al Carl ("Carl Dep.") at 13). Together, they called Joe Staysniak who confirmed that Lamey named Daly as the original source of the story when recounting the incident. (Id. at 13-14).
Calhoun invokes Indiana's Shield Law, Indiana Code § 34-46-4-2, which gives an absolute privilege to news outlets to not disclose the source of information obtained in the course of employment. In re Indiana Newspapers Inc. , 963 N.E.2d 534, 537 (Ind. Ct. App. 2012).
Calhoun, Carl, and Katherine Price, WISH-TV's Assistant News Director, then decided to go directly to Daly. (Id. at 18). During that conversation, Daly acknowledged that he used the N-word. (Id. at 23-24). Daly, who is Irish, explained that what he actually said was that he would be the "only [N-word] in the woodpile" if things didn't work out at the race, since he was joining an American driving team, with an American crew, with American sponsors. (Filing No. 64-9, Deposition of Derek Daly ("Daly Dep.") at 160). He further explained that he used the phrase in a "self-deprecating" manner to mean that he would bear the responsibility if he was unsuccessful. (Id. at 181). Nexstar later received a statement from Daly in which he again acknowledged that he used the phrase "[N-word] in the woodpile", but explained that the phrase was commonly used in Ireland and that he had no idea that the phrase was considered inappropriate or offensive in the United States. (Filing No. 64-17, Daly's August 22, 2018 Statement).
Around 7 p.m. on August 22, 2018, Nexstar informed Daly that he was fired. (Ingram Dep. at 9-10, 50; Carl Dep. at 26; Filing No. 64-10, Daly Chronology at 1). News of Daly's termination was the lead story on that night's 10 o'clock news and an article appeared on WISH-TV's website. (Daly Chronology at 2; Filing No. 64-15 August 22, 2018 Television Script; Filing No. 64-16, WISH-TV Online Article). The news report is set out below:
An update to a story we've been covering since yesterday—the controversy around the early retirement of Colts play-by-play announcer Bob Lamey. It stems from a story Lamey was retelling from nearly 35 years ago. In that story Lamey used a racial slur. WISH-TV has learned that the original story and offensive language came from race car analyst Derek Daly. It was a story Daly told Lamey during a live radio interview in the early 1980s. We spoke with Daly and he confirmed he was the source of Lamey's story. Daly has been a freelance race analyst and Indy Car expert for WISH-TV for 30 years. WISH-TV never had any knowledge of Daly's interview with Lamey. In light of this news, WISH-TV is severing ties with Derek Daly effective immediately.
(Television Script).
The next day, August 23, 2018, Daly wrote a second statement to Nexstar in which he identified several factual inaccuracies in the WISH-TV segment. (Filing No. 64-18, Daly's August 23, 2018 Statement). First, he claimed Bob Lamey incorrectly attributed the use of a "racial slur" to him. (Id. ). The segment also incorrectly reported that Daly confirmed that he used a racial slur. (Id. ). Finally, the segment incorrectly reported that he made the comment to Lamey, when in fact he used the phrase "[N-word] in the woodpile" in an interview with Larry Henry. (Id. ). WISH-TV then ran an updated story that evening:
A follow up now on a story we brought to you as breaking news last night. Racing analyst Derek Daly issued a statement today in which he claims WISH-TV's reporting on his involvement in a controversy surrounding retired Colts play by play announcer Bob Lamey is inaccurate. WISH-TV stands by our reporting on the matter. Our reporters accurately reported what Daly shared with us yesterday. At that time, Daly did confirm to WISH-TV that his comments from the early 1980s led to the Lamey controversy. He also affirmed to News 8 that his offensive comments from the 1980's were made during a radio interview with Bob Lamey.
(Television Script). Nexstar also posted Daly's entire statement to their website. (Carl Dep. at 59-60). Following WISH-TV's news segments, other media outlets in Indiana and abroad also ran stories on Daly. (See Filing Nos. 64-19 to 45, Collection of Media Reporting).
It is important to note that Derek Daly is not just a motorsports analyst for two races a year on WISH-TV. He had a successful racing career that spanned nearly two decades, from the mid-1970's to the early 1990s, (Daly Dep. at 23, 30-31), and he provided racing commentary for several broadcasting stations, including NBC, CBS, Fox, ESPN, the Speed Channel, and Network 10 in Australia, (id. at 37-41). His work for ESPN took him around the world and involved commentating on as many as ten to fifteen Formula 1 races per year. (Id. at 38). His success as a race commentator was also well recognized: an Indy Car Magazine readers poll named Daly as the most popular television broadcaster in the sport, and USA Today named him as the best new face on television. (Filing No. 64-5, Draft Manuscript: Race to Judgment at 42). In addition to driving and commentating on races, Daly has also written two books on racing, (Filing No 64-69, Plaintiff's Answers to Defendant's First Set of Interrogatories No. 15), and he is an international keynote speaker, (Daly Dep. at 61). Leading up to August 2018, Daly averaged 15 to 25 speeches per year, with crowds as large as 2,000 people. (Id. at 64). Since then, the two largest Speaker's Bureaus have stopped scheduling speaking events for Daly. (Id. at 250).
II. Legal Standard
Summary judgment is appropriate when the movant demonstrates that there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Carroll v. Lynch , 698 F.3d 561, 564 (7th Cir. 2012) ; Fed R. Civ. P. 56(a). "The underlying substantive law governs whether a factual dispute is material: ‘irrelevant or unnecessary’ factual disputes do not preclude summary judgment." Carroll , 698 F.3d at 564 (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). A "factual dispute is genuine when ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ " Carroll , 698 F.3d at 564 (quoting Anderson , 477 U.S. at 248, 106 S.Ct. 2505 ).
III. Discussion
The court begins with Nexstar's argument that Daly's defamation claim should be dismissed under Indiana's Anti-SLAPP Act. Alternatively, Nexstar argues the defamation claim fails because he cannot prove actual malice or falsity. The court then turns to Nexstar's arguments regarding Daly's claims of wrongful termination, breach of contract, and tortious interference with business relation.
A. Anti-SLAPP Act
Indiana's Anti-Strategic Lawsuit Against Public Participation Act ("Anti-SLAPP Act") provides a defense to a civil claim where the complained of act is made "in furtherance of the person's right of petition or free speech under the Constitution of the United States or the Constitution of the State of Indiana in connection with a public issue" and was "taken in good faith and with a reasonable basis in law and fact." Ind. Code § 34-7-7-5. The Anti-SLAPP Act is intended to reduce the number of lawsuits brought to chill the valid exercise of the right of free speech. Hamilton v. Prewett , 860 N.E.2d 1234, 1242 (Ind. Ct. App. 2007). A defendant may file a motion to dismiss under the Anti-SLAPP Act, but the motion is treated as a motion for summary judgment. Ind. Code § 34-7-7-9(a)(1).
1. "In Furtherance of" Nexstar's Free Speech Rights
There is no real dispute that Nexstar's reporting of Daly's use of the N-word was in furtherance of its free speech rights. See Bartnicki v. Vopper , 532 U.S. 514, 527, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001) ("[I]f the acts of ‘disclosing’ and ‘publishing’ information do not constitute speech, it is hard to imagine what does fall within that category, as distinct from the category of expressive conduct."); see also Pack v. Truth Pub. Co., Inc. , 122 N.E.3d 958, 964 (Ind. Ct. App. 2019) (finding "no real dispute" that publishing an article regarding a school board's decision to terminate a teacher was an act in furtherance of the newspaper's right of free speech).
2. "In Connection With" A Public Issue
Whether something qualifies as a "public issue" under Indiana's Anti-SLAPP Act reflects the First Amendment's understanding of matters of "public concern." Gresk for Est. of VanWinkle v. Demetris , 96 N.E.3d 564, 571 (Ind. 2018). Under both doctrines, "speech is in connection with a matter of public concern if it is addressed to any matter of political, social, or other concern to the community, as determined by its content, form, and context." Id. See also Konrath v. Vance , No. 1:16-CV-02784-LJM-DKL, 2017 WL 1382778, at *7 (S.D. Ind. Apr. 18, 2017) ("An issue is considered to be a matter of general or public interest when ‘[t]he public's primary interest is in the event; the public focus is on the conduct of the participant and the content, effect, and significance of the conduct.’ ") (quoting Filippo v. Lee Publications, Inc. , 485 F. Supp. 2d 969, 974 (N.D. Ind. 2007) ). A broad range of topics fall within the scope of public concern. See e.g. , Woods v. Evansville Press Co. , 791 F.2d 480 (7th Cir. 1986) (control of local television station); St. John v. Town of Elletsville , 46 F. Supp. 2d 834 (S.D. Ind. 1999) (management and control of town's sewage plant); Moore v. Univ. of Notre Dame , 968 F. Supp. 1330 (N.D. Ind. 1997) (Notre Dame football); Fazekas v. Crain Consumer Grp. Div. of Crain Commc'ns, Inc. , 583 F. Supp. 110 (S.D. Ind. 1984) (stock car racing scandal); Aafco Heating & Air Conditioning Co. v. Nw. Publications, Inc. , 162 Ind. App. 671, 321 N.E.2d 580 (1974) (details of a fatal residential fire).
A well-known racing commentator's use of the N-word during a live interview is a public issue. As detailed above, Daly has enjoyed several decades of success and notoriety. He raced in Formula 1, SportsCar, and IndyCar, including racing at the Indianapolis 500. (Daly Dep. 30-31). His victories received media coverage, and Daly frequently gave interviews during the 1980s and 1990s. (Id. at 33-35). This was all in addition to his role as a racing commentator on numerous television stations, which began in 1983 and continued until his termination in 2018. (Id. at 35-41). Daly is so well-known, in fact, that strangers recognize him on the street. (Id. at 33).
As for context, the Daly story emerged as part of the reporting around Bob Lamey's sudden retirement and Lamey's own use of the N-word when recounting Daly's use of the word. Randy Ingram testified that news of Lamey's sudden retirement was "dominating the airwaves" and speculation about the circumstances surrounding it "were swirling in the city". (Ingram Dep. at 30-31).
Finally, the record makes clear that there was robust discussion and coverage of the "content, effect, and significance of [Daly's] conduct." Konrath , 2017 WL 1382778, at *7. (See Filing Nos. 64-19 to 45 Collection of Media Reporting). As Staysniak testified, "It was a large story at the time that had local implications and also had many different facets to it. It wasn't just a sports story. So the political talk show host in the morning also wanted to have [Daly] on." (Staysniak Dep. at 33-34). The story and the fallout even caught the attention of former Vice-Presidential candidate Sarah Palin. (Filing No. 64-24, Sarah Palin Tweet). The content, form, and context of Nexstar's reporting demonstrates Nexstar published the story to inform the community that a well-known figure had used the N-word in a live radio interview, and that Daly was the original source of the story at the heart of Bob Lamey's sudden retirement. The evidence reflects that Nexstar's speech was in connection with a public issue.
3. "Taken in Good Faith and With a Reasonable Basis in Law and Fact"
The final requirement for dismissal under the Anti-SLAPP Act is that the reporting be done in good faith and with a reasonable basis in law and fact. "In the context of defamation law, ‘good faith’ has been defined as a state of mind indicating honesty and lawfulness of purpose; belief in one's legal right; and a belief that one's conduct is not unconscionable." 401 Pub. Safety v. Ray , 80 N.E.3d 895, 901 (Ind. Ct. App. 2017). Bad faith requires, "regardless of truth or falsity, a statement the speaker ‘knew .. was false or entertained serious doubts as to its truth’; ... a statement might not be in bad faith if the speaker ‘genuinely believed that he was being factual and also believed that it would be best for his community’ to pursue the subject matter of the statement." Id. (quoting Nexus Grp., Inc. v. Heritage Appraisal Serv. , 942 N.E.2d 119, 122 (Ind. Ct. App. 2011) ).
Nexstar published its story about Daly in good faith and with a reasonable basis in law and fact. Calhoun initially learned that Daly was the source of Lamey's story from two sources, whom Calhoun has used several times before. (Calhoun Dep. at 30-31, 80-90). Calhoun and Carl then spoke with Joe Staysniak who confirmed that Lamey named Daly as the original source of the story. (Carl Dep. at 43). Calhoun testified that even with these three sources, he still did not feel confident going on air with the story until he confirmed it from Daly. (Calhoun Dep. at 146-47). When Calhoun, Carl, and Price called Daly, he confirmed that he used the phrase, "[N-word] in the woodpile." (Daly Dep. at 181). During a second call that evening with Ingram, Daly confirmed that he used the phrase "[N-word] in the woodpile." (Ingram Dep. at 18). He then sent a statement to Nexstar in which he again confirmed that he used the phrase. (Daly's August 22, 2018 Statement).
The day after Nexstar published the initial story identifying Daly as the source of Lamey's story, Daly submitted a second statement disputing the accuracy of the WISH-TV segment. (Daly's August 23, 2018 Statement). Nexstar posted the entire statement to their website. (Carl Dep. at 59-60). In that statement, Daly claimed Bob Lamey incorrectly attributed the use of a "racial slur" to him. (Daly's August 23, 2018 Statement). The segment also incorrectly reported that Daly confirmed that he used a racial slur. (Id. ). Finally, the segment incorrectly reported that he made the comment to Lamey, when in fact he used the phrase "[N-word] in the woodpile" in an interview with Larry Henry. (Id. ). To the extent the report did contain factual inaccuracies, Nexstar did not report the story in bad faith. Nexstar confirmed the material facts of the story—that Daly said the phrase "[N-word] in the woodpile" during a live interview in 1983—with four different sources, including Daly himself. As will be discussed in greater detail below, the fact that Daly does not characterize what he said as a racial slur or that he actually made the comment to Larry Henry does not indicate bad faith.
In sum, Nexstar published the story in furtherance of its free speech rights. As a successful driver and long-time motorsports commentator, Daly's use of the N-word during a live interview was a public issue. Finally, the record indicates Nexstar published the story after confirming the core facts with multiple sources, including Daly. Nexstar acted in good faith and with a reasonable basis in law and fact. The Anti-SLAPP Act requires dismissal of Daly's defamation claim.
B. Defamation under Rule 56
Even if the Anti-SLAPP Act does not apply, Daly's defamation claim fails on the merits. A defamatory statement is one that "tends so to harm the reputation of another as to lower him in the estimation of the community or to deter a third person from associating or dealing with him." Newman v. Jewish Cmty. Ctr. Assn. of Indianapolis , 875 N.E.2d 729, 734–35 (Ind. Ct. App. 2007) (internal quotations and citation omitted). To establish defamation, Daly must prove: (1) a communication with defamatory imputation; (2) malice; (3) publication; and (4) damages. Id. The alleged defamatory statement must also be false. Melton v. Ousley , 925 N.E.2d 430, 437 (Ind. Ct. App. 2010). Whether a statement is defamatory is generally a question of law unless the statement is reasonably susceptible to either a defamatory or non-defamatory interpretation. Newman , 875 N.E.2d at 739. Here, Daly cannot show Nexstar published the story with actual malice, and he cannot show that the story was false.
The actual malice standard applies to defamation cases in Indiana if the statement involves matters of general or public concern, or if the statement involves a public figure. See Journal-Gazette Co. v. Bandido's, Inc. , 712 N.E.2d 446, 449 (Ind. 1999) ("The actual malice standard of proof required in defamation cases involving matters of public or general concern applies not only to public figures, but to private individuals as well."). The court need not determine whether Daly qualifies as a public figure (although, his public notoriety demonstrates that he likely qualifies as such), because the court concludes his use of the N-word during an interview qualifies as a matter of public concern.
1. Matter of Public Concern
The analysis regarding whether speech relates to a matter of public concern under defamation law mirrors the analysis regarding whether speech relates to a public issue under the Anti-SLAPP Act. See Gresk for Est. of VanWinkle v. Demetris , 96 N.E.3d 564, 571 (Ind. 2018). As laid out above, speech relates to a matter of public concern if it is addressed to "any matter of political, social, or other concern to the community, as determined by is content, form, and context." Id. (internal quotation and citation omitted). Determining whether an issue is a matter of public concern is a question of law. Brewington v. State , 7 N.E.3d 946, 962 (Ind. 2014).
Here, the Daly story did not exist in a vacuum. It emerged as part of the broader story surrounding Bob Lamey's retirement, which was "dominating the airwaves." (Ingram Dep. at 30-31). Overall, the stories "had a huge impact within ... [Nexstar's] coverage area." (Calhoun Dep. at 56). There was also public debate following the WISH-TV story about the fallout from Daly's termination. (See Filing No. 64-41, "Kravitz: So, Is Derek Daly Still Responsible for Unwittingly Using a Racial Slur 35 Years Ago? No, He Isn't"). As Daly explained in his book, "Everybody wanted a piece of the story with media outlets clamoring for my response." (Draft Manuscript: Race to Judgment , at 78). Staysniak also testified, "It was a large story at the time that had local implications and also had many different facets to it. It wasn't just a sports story. So the political talk show host in the morning also wanted to have [Daly] on." (Staysniak Dep. at 33-34). All of this coverage indicates a significant degree of public interest in the story.
The fallout did not just affect Derek Daly. His son, Connor Daly, also a racecar driver, was pulled from a race because Eli Lilly, the sponsor, decided it would be better for him to not be in the car, given the allegations against his father. (Staysniak Dep. at 33; Filing No. 64-21, "Lilly Diabetes Pulls Daly Sponsorship" Article). That decision was also subject to criticism. (See Filing No. 64-29, "Editorial: Lilly Acted Inappropriately When It Pulled Logo off Daly's Car").
In short, a legitimate debate can be had regarding the appropriate response to an incident like this, particularly when it involves someone with Daly's level of public notoriety. The extent to which an individual should be held accountable for comments made years ago, and what form that accountability should take, are surely matters of "political, social, or other concern to the community." Gresk , 96 N.E.3d at 571.
Daly contends otherwise. According to Daly, the real question is "whether the private statement of one individual, Lamey, to another, Staysniak, in the presence of only one other person, Birdsong, about an alleged event of 35 years prior, which may or may not have led to the retirement of a professional sports play-by-play announcer, is a matter of general or public interest or concern." (See Filing No. 77, Daly's Response Brief at 22-23). But that misstates the nature of Nexstar's reporting. Nexstar's reporting focused initially on Bob Lamey's use of the N-word. As the long-time Colts radio announcer, Lamey was a recognized personality in Indianapolis, and the story made headlines. The reporting then shifted to identifying who Lamey was referring to when he told the story about someone using the N-word during a live interview. Nexstar identified that individual as Daly, also a well-known figure in Indianapolis and in the racing world. Contrary to Daly's contention, these stories were not simply about a private, innocuous conversation between two unknown individuals. The stories involved two relatively prominent individuals who used the N-word, one of whom used the word during a live interview. This qualifies as a matter of public concern for all the reasons identified above.
Nor does it matter that the conversation between Lamey and Staysniak "was not intended for public dissemination." (Daly's Response Brief at 25). That someone in Lamey's position uttered the N-word in private does not diminish the public's interest in that fact or in identifying who Lamey was talking about when he said it.
Daly also suggests that the conversation between Lamey and Staysniak is not a matter of public concern because it does not involve a matter of public policy or public affairs that affects the general public. Daly is mistaken. Matters of public concern are not so narrowly defined. See Filippo v. Lee Pub., Inc. , 485 F.Supp.2d 969, 974 (N.D. Ind. 2007) ("In Indiana, the public interest is necessarily broad".) (internal quotation and citation omitted).
2. Actual Malice
"Actual malice exists when the defendant publishes a defamatory statement ‘with knowledge that it was false or with reckless disregard of whether it was false or not.’ " Journal-Gazette Co. v. Bandido's, Inc. , 712 N.E.2d 446, 456 (Ind. 1999) (quoting New York Times Co. v. Sullivan , 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) ). "To demonstrate reckless disregard, ‘[t]here must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of [its] publication,’ " id. (quoting St. Amant v. Thompson , 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968) ), "or proof that the false publication was made with a ‘high degree of awareness of their probable falsity,’ " id. (quoting Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964) ).
The court has already outlined the steps Nexstar took to confirm the material facts of the story, and those need not be recounted here. Suffice it to say, Nexstar received confirmation from four sources, including Daly, that Daly said the N-word during the live interview. The evidence reflects that Nexstar did not publish the story "with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times , 376 U.S. at 279-80, 84 S.Ct. 710.
3. Truth Is an Absolute Defense
Even if Daly were able to prove the elements of defamation, true statements do not give rise to liability for defamation. Melton v. Ousley , 925 N.E.2d 430, 437 (Ind. Ct. App. 2010). While truth is a complete defense to a defamation claim, "the literal truth is not required." Britt Interactive LLC v. A3 Media LLC , No. 1:16-CV-02884-TWP-DML, 2017 WL 2118513, at *5 (S.D. Ind. May 16, 2017). "A statement is sufficiently true if it has a ‘substantial basis in the truth’ and if the ‘gist’ or ‘sting’ of the statement is true." Id. (citation omitted). Nexstar's reporting was sufficiently true to establish a complete defense to Daly's defamation claim.
The alleged inaccuracies in the WISH-TV story are either correct or irrelevant. Daly claims Nexstar incorrectly stated that he was the source of Lamey's use of the racial slur. He also points out that there is a factual dispute regarding what phrase Lamey attributed to Daly when Lamey told the story to Staysniak. According to Sharlene Birdsong, Lamey told Staysniak that Daly used the phrase, "There aren't any [N-words] in this race." (Birdsong Dep. at 13). According to Lamey, he told Staysniak that Daly used the phrase, "There's no [N-words] in the woodpile." (Lamey Dep. at 15). But this dispute is not material because Nexstar's story did not specify which phrase Daly actually used during the interview. The story simply stated that Lamey used a racial slur—the N-word—and that the "offensive language" came from Daly. (Television Script). As a factual matter, this is undisputed.
Daly acknowledges that he used the N-word, but he makes the stunning claim that because he said "[N-word] in the woodpile", a phrase he claims to have grown up with in Ireland, and not the N-word on its own, he did not use a racial slur. (See Daly Dep. at 160, 290 ("I didn't admit to using a racial slur. I admitted to using an Irish colloquialism that contained the N-word. Very different."). He goes on to claim that the phrase "[N-word] in the woodpile" is "materially different" than the N-word. (See Filing No. 77, Daly's Response Brief at 12). This argument is mistaken. The N-word is a horrific racial slur, and it's use as part of "an Irish colloquialism" is of no moment. Daly's citation to Mark Twain, Elvis Costello, and Bob Marley's use of the N-word does nothing to change that fact. Daly may not have intended to use the word as a slur, but regardless of how he characterizes his comment, he does not and cannot dispute that he used the N-word.
Even if the court were to entertain Daly's argument on this point, it remains the case that the story was substantially true. "[T]he statement is not considered false unless it would have a different effect on the mind of the reader from that which the pleaded truth would have produced." Bandido's , 712 N.E.2d at 458 (internal quotation and citation omitted). See also Heeb v. Smith , 613 N.E.2d 416, 421 (Ind. Ct. App. 1993) ("The test for determining whether a statement is substantially true is whether any inaccuracies caused the statement to produce a different effect on the audience than would have been produced had the literal truth been spoken."). Had Nexstar's story read, "Lamey recounted an interview given by Daly in which Daly used the N word", it would have had created substantially the same effect on the listener as was created by the word "slur." See Bandido's , 712 N.E.2d at 460-61 (newspaper headline stating a restaurant had "rats" rather than "rodents" was substantially true because the effect on the reader was substantially the same: "Either way, readers would have perceived Bandido's as an unsanitary, dirty restaurant.").
Daly is correct that Nexstar's reporting did contain one factually inaccurate assertion: that Daly said the N-word during an interview with Bob Lamey, when in fact he made the comment to Larry Henry. But this error is irrelevant to Daly's defamation claim, and the effect of the story would remain the same had Nexstar correctly identified the interviewer.
Because Daly's defamation claim fails as a matter of law, Nexstar is entitled to summary judgment on that claim.
C. Daly's Remaining Claims
1. Wrongful Termination and Breach of Contract
Daly alleges that Nexstar breached his employment contract when it wrongfully terminated him because he used the N-word. Indiana follows the employment at will doctrine that allows the employer and employee to terminate the employment "at any time for a good reason, bad reason, or no reason at all." Montgomery v. Bd. of Trustees of Purdue Univ. , 849 N.E.2d 1120, 1128 (Ind. 2006) (internal quotation omitted). Daly acknowledged that he was an at-will employee and that he could be terminated for any reason. (Daly Dep. at 46). Despite this, he argues Nexstar should not have fired him for "saying a word that Defendant admits can and is utilized by other persons of a different race in varying contexts." (Daly's Response Brief at 41). However Daly feels about the reason for his termination, Nexstar determined that Daly's use of the N-word was grounds for his termination. (Carl Dep. at 26-27).
Moreover, to establish a breach of contract claim, Daly must prove: (1) a valid contract existed; (2) Nexstar breached the contract; and (3) Daly suffered damage as a result of the breach. Collins v. McKinney , 871 N.E.2d 363, 370 (Ind. Ct. App. 2007). Nexstar agreed to pay Daly $28,000 to serve as a WISH-TV Motorsports Analyst from January 2018 to December 2018. (Filing No. 64-14, Daly Contract). Daly acknowledges that he was paid the full amount he was owed under the contract despite his termination. (Daly Dep. at 44). Daly failed to designate any evidence showing a genuine dispute of fact that he suffered damages as a result of the alleged breach. Nexstar is entitled to summary judgment on Daly's wrongful termination and breach of contract claims.
2. Tortious Interference with Business Relations
Finally, Daly argues Nexstar knew Daly's business interests could be harmed by the story, but Nexstar published it anyway. As a result, Daly's motivational speaking work dried up and the Speaker's Bureaus stopped calling him for events. (Daly Dep. at 250). To establish his tortious interference claim, Daly must prove: (1) the existence of a relationship; (2) Nexstar's knowledge of the existence of the relationship; (3) Nexstar's intentional interference with that relationship; (4) the absence of justification; and (5) damages resulting from Nexstar's wrongful interference with the relationship. Levee v. Beeching , 729 N.E.2d 215, 222 (Ind. Ct. App. 2000). Daly must also show illegal conduct by Nexstar. Id.
Daly's claim fails because he cannot show any illegal conduct by Nexstar. Even if Daly's other claims survived, "Indiana law appears settled that neither defamation nor breach of contract satisfies the ‘illegal action’ requirement." Nikish Software Corp. v. Manatron, Inc. , 801 F. Supp. 2d 791, 797 (S.D. Ind. 2011) (collecting cases). Nexstar is entitled to summary judgment on this claim.
D. Attorney's Fees
Under Indiana's Anti-SLAPP Act, a prevailing defendant on a motion to dismiss is entitled to recover reasonable attorney's fees and costs. Ind. Code § 34-7-7-7. Daly's response—that Nexstar's fee request is inappropriate because his claims are not "frivolous" or "solely intended to cause unnecessary delay"—refers to the standard for awarding the plaintiff fees when the defendant is unsuccessful. See id. § 34-7-7-8. Because the court grants Nexstar's motion to dismiss under the Anti-SLAPP Act, Nexstar is entitled to reasonable fees and costs.
IV. Conclusion
For the foregoing reasons, Nexstar's Motion to Dismiss Under Indiana's Anti-SLAPP Act and for Summary Judgment (Filing No. 63) is GRANTED .
SO ORDERED this 1st day of June 2021.