Wiley v. Gray Television, Inc.

550 P.3d 964

2024 OK CIV APP 16

Ernest WILEY, Plaintiff/Appellant,

v.GRAY TELEVISION, INC., aka and/or dba KSWO-TV, a foreign company; Jarred Burk, and Kelvin Mize, Defendants/Appellees,andFidelity Communications Co., a foreign company; Cable One, Inc., a foreign company; Brian Alldredge, and XYZ Corporation, a foreign or domestic company, Defendants.

Case No. 120,797

Court of Civil Appeals of Oklahoma, Division No. 2.

Filed December 7, 2023

Rehearing Denied: May 13, 2024

Mandate Issued: May 23, 2024

APPEAL FROM THE DISTRICT COURT OF COMANCHE COUNTY, OKLAHOMA; HONORABLE SCOTT D. MEADERS, TRIAL JUDGE

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS

A Mark Van Paasschen, MVP LAW, LLC, Yukon, Oklahoma, for Plaintiff/Appellant

G. Rudy Hiersche, Jr., BLANEY, TWEEDY, TIPTON & HIERSCHE, PLLC, Oklahoma City, Oklahoma, for Defendants/Appellees

OPINION BY JANE P. WISEMAN, PRESIDING JUDGE:

¶1 Ernest Wiley appeals the trial court’s summary judgment entered in favor of Gray Television, Inc., aka and/or dba KSWO-TV, Jarred Burk, and Kelvin Mize (collectively, Defendants)¹ and its denial of his motion to reconsider which we treat as a motion for new trial. The questions to be addressed on appeal in this libel action are whether summary judgment was granted in error and whether the denial of Wiley’s motion for new trial was an abuse of discretion. We consider this appeal without further briefing pursuant to Oklahoma Supreme Court Rule 1.36, 12 O.S.2021, ch. 15, app. 1. After review, we conclude overruling the motion for new trial was an abuse of discretion because the question of whether the article in question was substantially accurate was for a jury to decide, and granting summary judgment in Defendants’ favor was therefore erroneous. We reverse the orders of the trial court and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶2 Ernest Wiley filed suit against Defendants on May 12, 2020. Defendants filed a motion for summary judgment asserting the following six facts as undisputed. (1) The Comanche County District Attorney on March 14, 2018, filed "a Felony Information Sheet of Aggravated Possession of Child Pornography against [Wiley] containing information to base the charge." (2) The Information filing was based on Detective Kim Morton’s February 20, 2018 affidavit for arrest warrant. (3) On March 19, 2018, Comanche County issued a felony arrest warrant for Wiley, but the warrant was not filed until March 21, 2018. (4) KWSO published an article on its website on March 21, 2018, based on the contents of the affidavit for arrest warrant and information sheet. (5) Defendants state that the article’s information was taken directly from the information sheet and affidavit for arrest warrant. The article attached as an exhibit, referred to as Article 1, has a byline by Jarred Burke, and indicates it was published on March 21, 2018, at 9:42 CDT, and updated August 15 at 1:34 PM. Article 1 states:

LAWTON, Ok (RNN Texoma) — A Lawton man is facing child pornography charges after he was linked to an FBI investigation.

52-year-old Ernest Wiley in [sic] facing a felony charge of aggravated possession of child pornography.

According to court documents, in mid-February an FBI agent was conducting an online investigation when he came across an IP address which was connected to pictures of child pornography. The agent was able to track the IP address to the home of Wiley which was located in the 7000 block of NW Baldwin in Lawton. The FBI agent contacted the Lawton Police Department and on March 24, the LPD Special Operations Division was able to execute a search warrant on the home. Investigators seized multiple electronic devices and turned them over to the OSBI for further examination.

On that same day, Wiley was interviewed by LPD detectives at the Lawton police station. At the time, Wiley allegedly admitted to looking at pornography but said he never intentionally looked at child porn. The court documents state that the detective working the case found a video on at least one device from Wiley’s home which reportedly had a video depicting a nude infant in addition to the hundreds of images originally found by the FBI.

A warrant has been issued for the arrest of Wiley to face charges.

(6) Defendant KWSO published a second article on March 23, 2018. "The article … informed that [Wiley] had been arrested and that he faced charges of aggravated possession of child pornography and that [Wiley] was out of jail based on posting of a $15,000.00 bond. It was solely based on the information contained in court records." The attached article, which the parties refer to as Article 2, states:

March 23, 2018 at 1:55 AM CDT — Updated August 14 at 7:50 AM

LAWTON, OK (KSWO) - A Lawton man sought by police for possession of childpornography will appear in court next month.

According to court records, 52-year-oId Ernest Wiley was arrested Thursday. Authorities say an IP address linked to his home was connected to hundreds of images of child pornography—and FBI agents seized several electronic devices with the images on them.

Wiley faces charges of aggravated possession of child pornography, and is currently out on a 15-thousand dollar bond. He is set to appear in court near the end of April.

¶3 In their motion for summary judgment, Defendants assert their publications about Wiley are privileged and are therefore exempt from libel laws. Specifically, they assert the publications are exempt pursuant to the fair report privilege.

¶4 In his response to Defendants’ motion for summary judgment, Wiley indicates he "Agreed" with Defendants’ statements of undisputed facts numbered 1 through 5. Wiley disputes Defendants’ fact number 6 citing Jarred Burk’s deposition. Wiley states: "The article published by Gray TV dated March 23, 2018, ‘Article 2’, was not ‘solely based on the information contained in the court records,’ per Defendant Burk’s own admissions. Further, Article 2 contained false statements for which there was no factual basis." (Citations to record omitted.)

¶5 Wiley cites Jarred Burk’s deposition testimony in which Burk agreed that "the phrase ‘and FBI agents seized’ is an inaccurate statement." Burk explained the statement is "not a hundred percent accurate" because "[i]t should have been attributed to LPD and not FBI." Burk answered, "Yes," when asked if Article 2 "implie[d] that there were devices that had hundreds of images of child pornography on them." When asked, ‘Where does it say in any of these three court documents that the devices seized had hundreds of images of child pornography on them?," Burke replied, "It doesn’t say that." He later admitted it is a false statement. Burk also testified that no images of child pornography were found on the devices that were seized. Burk admitted that the statement that the bond was $15,000 was also incorrect.

¶6 Wiley asserts in his response that the fair report exemption does not apply to Article 2 because it contains statements that are not accurate representations of the court documents on which Defendants claim they relied. Wiley filed a cross-motion for summary judgment on the issue of liability only.

¶7 At the hearing on Defendants’ motion for summary judgment, Defendants’ attorney acknowledged that the IP address associated with the child pornography was wrongly identified as Wiley’s and belonged to another subscriber. Counsel for Defendants states:

I think, Your Honor, to properly understand it you have to look at March 23, 2018. That’s when the IP address was given and we now know wrongfully that it was Mr. Wiley’s address, it wasn’t; but at the time this article was published everybody thought that it was. So the devices that the FBI looked at before they actually went out and gave to the Lawton Police Department to confiscate showed the images. So when the affidavit of Detective Morton recited, she recited that the FBI found images located on that IP address, everybody thought at that time the IP address was Mr. Wiley’s.

Defendants’ counsel acknowledges the IP address associated with the child pornography was incorrectly linked to Wiley’s home by Cable One. Counsel further acknowledges that the statement contained in Article 2 that " ‘[a]uthorities say an IP address linked to his home was connected to hundreds of images of child pornography’ " was eventually found to be false.

¶8 Wiley’s counsel explained that the FBI discovered the images of child pornography through its remote monitoring of downloads. Wiley’s counsel said that the FBI saved the images they found and "then contacted the cable company and said here’s an IP address, we need a name and physical residential address associated with your cable company’s IP address that was issued by a subpoena with the FBI." He continued, "As [Defendants’ counsel] has stated and is part of the court records here in this county and part of the civil case actually, the cable company was negligent in providing the wrong person’s [Mr. Wiley’s] name and physical address in response to the FBI’s subpoena." The FBI contacted the Lawton Police Department (LPD) to investigate. The LPD obtained a search warrant and removed numerous devices from Wiley’s home to submit to the OSBI for forensic examinations. Wiley’s counsel asserts, "There is nothing in this entire affidavit that refers to those devices being seized having anything on them whatsoever let alone child porn." He continues, "[T]here is no phrase in this entire arrest affidavit that says those devices were determined to have anything on them, nothing on them, 689 images of child porn on them."

¶9 Wiley’s counsel says he has no problem with the first part of the statement before the hyphens in Article 2 that says, "Authorities say an IP address linked to his home was connected to hundreds of images of child pornography—and FBI agents seized several electronic devices with the images on them." He argues:

The issue occurs and what subjects KSWO to liability for libel begins after that double

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