A Johnson County judge on Tuesday tossed out a defamation lawsuit brought by Kansas Sen. Majority Leader Jim Denning against The Kansas City Star, finding Denning failed to prove malice.
Judge Paul Gurney also ordered Denning to pay the newspaper’s attorney fees, which could run as high as $40,000.
Gurney ruled that Denning had not met the requirements of the Kansas Speech Protection Act, which is designed to end meritless lawsuits that target the exercise of free speech.
Gurney found The Star was not driven by ill will or evil intent when it published a column by Steve Rose in January criticizing Denning’s opposition to Medicaid expansion.
Denning, an Overland Park Republican, sued The Star and Rose a couple of days later, claiming Rose had attributed statements to him that he did not make. Rose tendered his resignation as an unpaid guest columnist a few days later.
The judge said he would rule at a later date on Denning’s defamation claims against Rose, who was present in the courtroom Tuesday.
Denning could not immediately be reached for comment.
Gurney issued his ruling from the bench after listening to arguments from The Star’s attorney, Bernie Rhodes, and Denning’s attorney, Mike Kuckelman, who was elected earlier this year as chairman of the Kansas Republican Party.
“This is a case about fake news, but not the fake news that Mr. Denning wants you to believe,” Rhodes told Gurney as he launched into his argument.
Rhodes said Denning sued The Star to divert attention from his longstanding opposition to Medicaid expansion in Kansas.
“He can’t stand the heat,” Rhodes said, declaring that Denning had stood in the way of 150,000 Kansans acquiring health coverage.
Rhodes also attacked Kuckelman, calling him Denning’s “lackey” and saying he campaigned for the GOP chairmanship “on this lawsuit and using the same PR firm.”
Kuckelman retorted that he wasn’t going to engage in personal attacks and urged Gurney to let the case go before a jury.
The Public Speech Protection Act, he said, doesn’t give The Kansas City Star “unlimited license to make up quotes” and mislead the public into believing that Denning made statements he never made.
“They don’t have unfettered license to lie,” Kuckelman said.
The Star urged Gurney to strike Denning’s petition on the grounds that Denning had not proved “actual malice” when it published Rose’s column.
The U.S. Supreme Court, in its landmark 1964 New York Times v. Sullivan decision, unanimously ruled that in order to prove libel, a public official such as Denning must show that the allegedly libelous statements were made with “actual malice” — that is, with knowledge that they were false or with reckless disregard for whether they were false or not.
Denning had an additional hurdle to overcome. The Kansas Public Speech Protection Act, which the Legislature enacted in 2016 and Denning supported, goes beyond the First Amendment’s actual malice standard and requires proof that the defendant acted “with actual evil-mindedness” or “specific intent to injure.”
Rhodes contended that Denning couldn’t prove either because The Star’s editorial page editor, Colleen McCain Nelson, who was Rose’s editor, had no reason to doubt the accuracy of Rose’s column when she approved its publication.
Nelson termed the lawsuit “a political ploy” from the start “and an attempt to generate headlines — not a legitimate lawsuit.”
“With this decision, the judge affirmed that Sen. Denning’s claim against The Star was entirely without merit, and more importantly, he protected the First Amendment rights of The Star and all journalists,” Nelson said in an email.
The Public Speech Protection Act allows the prevailing party to recover its attorney fees, and Gurney directed Denning to pay those fees. Asked by Gurney how much he had racked up in legal fees, Rhodes said about $40,000. Gurney said Denning could contest the reasonableness of the fees if he wishes.
The Public Speech Protection Act also allows courts to impose sanctions on the losing party. Gurney declined to do that, saying the attorney fees were sanction enough.
Editor's note: This story has been updated with additional comments.
Dan Margolies is a senior reporter and editor at KCUR. You can reach him on Twitter @DanMargolies.