6th Circuit rejects teacher’s ‘libel by pantomime’ claim
A federal appeals court has rejected the First Amendment claims of a former Kentucky public school teacher who alleged that a principal violated her rights by denying her request for a representative at a meeting. She also had alleged that the principal and assistant principal committed “libel by pantomime” by escorting her out of the building.
The incident occurred in May 2008. Defendant Joey Riddle, principal of Iroquois High School in Louisville, yelled for Jerry Linton, a retired teacher working at the school in a pilot program, to come to his office.
According to court papers, Linton did not get along with Riddle and knew that he was going to talk about pending discipline against her son, who also taught at the school. Linton requested that she have “a representative” present at the meeting because of her acrimonious relationship with Linton.
When Linton repeated her request for a representative, Riddle yelled for her to get out of the building and Assistant Principal Donnie Hudson followed her out. Linton finished her one-year contract at another school and then not rehired.
In November 2008, she filed a lawsuit in Jefferson Circuit Court against Riddle and Hudson, alleging a variety of claims, including assault, violated freedom of association, “libel by pantomime” and defamation. In her free-association claim, she alleged that Riddle violated her First Amendment rights by denying her request for a representative. She also contended that the defendants committed libel by pantomime by making her leave the building — which could cause observers to believe that she had committed some form of wrongdoing.
The defendants had the lawsuit removed to federal court. In May 2010, U.S. District Judge John G. Heyburn II dismissed the claims. Rejecting the free-association claim, he found that the principal had a rational reason for denying her request for a representative, namely that principals have the authority to speak to teachers without going through an intermediary. With regard to libel by pantomime, Heyburn wrote that “Kentucky has never addressed this unusual form of libel” and that he would not “adopt the new cause of action.”
A few jurisdictions have recognized that defamation can take place by conduct or pantomime. Some use the term “defamation by conduct.” The Nevada Supreme Court used the term “pantomime” in K-Mart v. Washington (Nev. 1993): “The imputation of shoplifting, by words or by pantomime, if communicated to a third party, is unquestionably slander per se.” An Iowa appeals court ruled that a jury could consider whether the “dramatic pantomime” of dragging a person out of a store as a suspected shoplifter was defamatory in Kiray v. Hy-Vee, Inc. (Iowa. App. 2006).
Heyburn also rejected the assault claim and the more traditional defamation claim, finding that the defendants made no false statements and that they had a qualified privilege to discipline an employee who disobeyed an order. Linton filed a motion to vacate the ruling. In July 2010, Heyburn denied that motion in another opinion.
Linton then appealed to the 6th U.S. Circuit Court of Appeals. On April 13, a three-judge panel unanimously rejected her appeal in Linton v. Riddle. The court rejected the free-association claim, noting that “the orderly administration of the school would be hindered if a witness were required for every meeting by the principal with a member of staff.”
As for libel by pantomime, the panel declared that “even if Kentucky recognized the tort of ‘libel by pantomime,’ defendants would be entitled to a qualified privilege for statements related to the conduct of their employees.”
The panel said that when libel defendants have a qualified privilege, then the plaintiff must present evidence of actual malice — that the defendants acted knowing that a statement was false, or acted in reckless disregard of whether it was false or not.
“Here, Linton did not show that defendants knew any implied statement that Linton was being insubordinate was false,” the panel wrote. “In fact, it appears that they honestly believed that Linton was being insubordinate.”