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Greenberg v. Horizon Arkansas Publications, Inc.

Court of Appeals of Arkansas, Division III

May 24, 2017

DANIEL GREENBERG APPELLANT
v.
HORIZON ARKANSAS PUBLICATIONS, INC., ET AL. APPELLEES

         APPEAL FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63CV-13-164] HONORABLE GRISHAM PHILLIPS, JUDGE

          Taylor & Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha C. Taylor, for appellant.

          Quattlebaum, Grooms & Tull PLLC, by: John E. Tull III and Everett C. (Clark) Tucker IV, for appellees.

          Gladwin and Glover, JJ., agree.

          RAYMOND R. ABRAMSON, Judge

         Daniel Greenberg sued Horizon Arkansas Publications, Inc., et al. (sometimes referred to as appellees) for defamation.[1] Greenberg's lawsuit arose out of a series of editorials published in 2010 in the Benton Courier and written by Kristal Kuykendall who served as editor of the paper at the time. The Saline County Circuit Court granted summary judgment in favor of appellees, and Greenberg appealed. We affirm.

         I. Background

         Daniel Greenberg served as a state representative in the Arkansas General Assembly from 2006 to 2010. In 2010, Greenberg was a candidate in the Republican primary for Arkansas State Senate District 22, a portion of which is located in Saline County. Greenberg's opponent was former state representative Jeremy Hutchinson.

         During the course of the election, the Benton Courier published a series of editorials written by Kristal Kuykendall about Greenberg, Hutchinson, and their respective campaigns. The editorials were published on March 7, 2010 (First Editorial), March 28, 2010 (Second Editorial), April 19, 2010 (Third Editorial), and April 26, 2010 (Fourth Editorial).

         The First Editorial addressed two topics pertinent to Greenberg. Kuykendall began by engaging in a general discussion of what she considered to be dishonest political advertising. She mentioned a television advertisement by Greenberg in which he quoted the Benton Courier: "You should appreciate having legislators like Dan Greenberg on your side." This quote had been written in a 2009 editorial praising Greenberg's work for open government. Kuykendall believed that the use of the quote made it appear that the newspaper was endorsing Greenberg when it was not. She also disagreed with the use of this quote because it was written by a previous editor of the Benton Courier. Later in the editorial, Kuykendall wrote that she had previously "swor[n] on the spot that [Greenberg would] never have [her] support as a candidate for anything" as a result of a comment he was said to have made about access to healthcare. Kuykendall explained that, "basically, when someone questioned whether the nation's health care system was broken because not everyone has access to health care, Greenberg's response was something like: Of course everyone in America has access to health care; all they have to do is go to the emergency room."

         Unhappy with the First Editorial, Greenberg requested and was granted a meeting with Kuykendall and her publisher, Bryan Bloom. Greenberg agreed to modify the television advertisement to state, "[Y]ou should appreciate having legislators like Dan Greenberg on your side because of his work for open government." Kuykendall indicated in an email to Greenberg that the revisions adequately addressed their concerns.

         Shortly thereafter, Kuykendall wrote the Second Editorial. In that editorial, she favorably addressed Greenberg's modified television advertisement and his meeting with the Benton Courier staff that led to the modification. She praised Greenberg for "paying attention to the small-town local paper" and "for being flexible and for striving for the most honest political campaign commercial possible in this situation." She also raised an issue reported to her by one of Greenberg's constituents-that Greenberg promised to have the mailboxes of the elderly moved closer to their front doors and, according to his constituent, broke the promise. Further, Kuykendall praised Greenberg's volunteerism at a community-care clinic.

         Greenberg's case hinges on Kuykendall's Third Editorial, in which Kuykendall addressed four issues relating to Greenberg. First, she discussed polls that showed Greenberg trailing Hutchinson in their state-senate race. Secondly, she noted that Greenberg was using the same address for both his legislative and his campaign offices and mentioned that this "would appear to be a violation of Arkansas campaign ethics." Next, she wrote that Greenberg had listed as supporters on campaign materials individuals who were either neutral or supported Hutchinson. Lastly, she characterized Greenberg's allegation in a campaign mailer that Hutchinson lobbied for new taxes as "hatefully dishonest."

         Following the publication of the Third Editorial, Greenberg requested to publish a responsive guest column in the Benton Courier, and appellees agreed to the request. Greenberg's column generally rebutted Kuykendall's criticisms of him and challenged her journalistic methods.

         Finally, the Benton Courier published the Fourth Editorial, which presented no new information but Kuykendall wrote, "I stand firmly behind every fact I presented in [the Third Editorial] column. I'm ...


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