Constitutional – Communications Decency Act of 1934 – Actual Malice

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Although Appellant alleged actual malice, he is not entitled to judgment based on third-party statements.

We affirmed in part, reversed in part, and remanded.

Appellant Kenneth Loveless, a board member for Lexington-Richland School District Five, brought a defamation action against Leslie Stiles, creator and administrator of a Facebook group, arguing she defamed him by posting defamatory statements about him and approving other Facebook users’ posts. Stiles moved for judgment on the pleadings, and the circuit court granted her motion. On appeal, Loveless argued the court erred by considering material outside the facts alleged in the complaint. He further argued the circuit court erred in finding Stiles is immune under the Communications Decency Act of 1934 (CDA) because Stiles posted her own statements and “endorsed” third-party statements. Additionally, Loveless argued Stiles is not immune under the First Amendment of the U.S. Constitution because he is not a public official and she “undertook” liability as the administrator of the Facebook page. Finally, he argued the court erred in granting Stiles’s motion to deem matters admitted despite his objections.

The circuit court did not improperly consider materials outside of the facts alleged in the complaint. There is no evidence that the court relied on any fact outside of Loveless’s original complaint in granting judgment on the pleadings. Stiles’s omnibus memo addressed seven different motions, and each argument and statement of facts were separated into different sections. It does not appear that Stiles referenced any facts not found in the pleadings in the section regarding her motion for judgment on the pleadings. Additionally, Loveless raised this issue to the circuit court at the motions hearing, and the circuit court stated it could parse through the facts from the memo and the complaint to properly reach its conclusion. Further, there is nothing in the order indicating the court relied on any outside materials. Accordingly, we found the circuit court looked only to the facts alleged in the complaint in granting Stiles’s motion, and we affirmed as to this issue.

The circuit court did not err in granting the motion for judgment on the pleadings as to any third-party statements. First, we find the circuit court properly held Loveless was a public official. Loveless was a publicly elected government official who was acting in his capacity as a member of the school board. Moreover, Loveless conceded some of the statements were matters of opinion regarding his performance as a public official. Furthermore, as a public official, Loveless must allege actual malice in the complaint. At this stage in the case, Loveless needed only to allege that Stiles published the statements with actual malice—not prove actual malice. Loveless’s complaint alleged Stiles “acted with actual malice” in “republish[ing]” the third-party statements. Additionally, the complaint alleged Stiles published statements “with specific knowledge they were false and/or with a reckless disregard for whether they were false or not.” Therefore, we found Loveless sufficiently pleaded actual malice as to the statements Stiles republished and held the circuit court erred in finding Loveless failed to plead actual malice as to the third-party statements. However, we found that this error was insubstantial. We found the circuit court properly granted the motion for judgment on the pleadings as to the third-party statements because, even if the facts alleged by Loveless are true, he would not be entitled to judgment due to Stiles’s immunity under the CDA. The CDA and its progeny of cases make clear that Stiles, as an information content provider, has no liability for other users’ statements. Even if Stiles was not immune from liability for the third-party statements under the CDA, we held she is protected by the First Amendment because the “undertaking theory” does not and cannot constitute actual malice. Accordingly, despite the fact that Loveless alleged actual malice, he is not entitled to judgment based on the third-party statements. Therefore, we affirmed as to the third-party statements.

We held the circuit court improperly granted judgment on the pleadings as to the statements alleged to have been authored by Stiles. The circuit court’s order granting Stiles’s motion for judgment on the pleadings focused almost entirely on third-party posts and Loveless’s undertaking theory. In fact, the order stated there were no statements made by Stiles individually. Accepting the allegations as true, we found this is an error. Loveless alleged Stiles individually authored at least some of the statements listed in the complaint, and, therefore, the circuit court’s ruling was premature. Therefore, it was improper to grant Stiles’s motion for judgment on the pleadings as to her statements, as the complaint asserted there were statements alleged to be defamatory and alleged to have been made by Stiles with actual malice. Accordingly, we reversed and remanded for further proceedings as to Stiles’s statements.

Affirmed in part, reversed in part, remanded.

Loveless v. Stiles (Lawyers’ Weekly No. 012-035-25, 7 pp.) (Per Curiam) Appealed from Richland County Circuit Court (Jean Hoefer Toal, J.) Desa Ballard, Harvey M. Watson, III, and Haley Alyse Hubbard, all of Ballard & Watson, Attorneys at Law, of West Columbia, for Appellant. John S. Nichols, of Bluestein Thompson Sullivan LLC; and Christopher P. Kenney, of Chris Kenney Law, both of Columbia, for Respondent. South Carolina Court of Appeals Unpublished