(dissenting):
I dissent. I would not reach either the state or federal constitutional issues, but would affirm the judgment on the ground that the statements are not defamatory as a matter of law because they do not “impeach [West’s] honesty, integrity, virtue, or reputation or publish his ... natural defects or expose him ... to public hatred, contempt, or ridicule.” Cox v. Hatch, 761 P.2d 556, 561 (Utah 1988); Utah Code Ann. § 45-2-2(1) (1988).
“Whether the publication of an alleged defamatory statement ... is capable of conveying a defamatory message is initially a question of law.” Cox, 761 P.2d at 561. Thus a trial court’s first task is to determine whether, as a matter of law, a statement was capable of conveying a defamatory message. Id. On appeal, we review independently this initial legal determination.
Cox is directly on point. Similar to the present case, the plaintiffs in Cox appealed a dismissal of their defamation claim. The alleged defamatory statement was a photograph published in Orrin Hatch’s campaign literature during his 1982 campaign for reelection to the United States Senate. Plaintiffs were employees of the United States Postal Service and were members of the American Postal Workers Union. The photo portrayed Hatch talking to plaintiffs at their place of employment. The photo was included in an eight-page political flier entitled “Senator Orrin Hatch Labor Letter,” distributed by Hatch’s “Union Members for Hatch Committee.” Plaintiffs allege the photo defamed them because it implied they endorsed Hatch for reelection and that they were Republicans.
The Utah Supreme Court affirmed the dismissal in part because the implications that plaintiffs were Republican or that they supported Hatch were not defamatory as a matter of law. Id. at 562. The court held that “attribution of membership in a political party in the United States that is a mainstream party and not at odds with the fundamental social order is not defamatory.” Id. The court further held that “attribution of support for a candidate from one of those parties” is not defamatory. Id; see also, Frinzi v. Hanson, 30 Wis.2d 271, 140 N.W.2d 259, 262 (1966) (“Being charged with being a good, luke warm or nonmember of a political party is not libelous.”). The court in Cox concluded:
However offensive the photograph in this case may have been to the plaintiffs, it could not, as a matter of law, have damaged their reputations or subjected them to “public hatred, contempt or ridicule.” In sum, the complaint failed to state a claim for relief based on defamation.
Cox, 761 P.2d at 562.
Cox noted, with approval, other cases which held that statements regarding political positions or affiliations were not defamatory as a matter of law. Id. at 562; see, e.g., Frinzi, 140 N.W.2d at 262 (accusation by Democratic Party Chair that Democratic candidate was endorsed by certain Republicans who supported weakening anti-gambling laws, and that candidate considered running as an Independent not defamatory as a matter of law); Rawlins v. McKee, 327 S.W.2d 633, 635 (Tex.Civ.App. 1959) (per curiam) (accusation that political candidate was radical who was financed by labor bosses not defamatory as a matter of law); Manasco v. Walley, 216 Miss. 614, 63 So.2d 91, 95 (1953) (statement that candidate for reelection to the house lost funding for state roads by removing them from priority list not defamatory as a matter of law).
Other cases have likewise held that accusations alleging mainstream political positions or activities are not defamatory as a matter of law. See, e.g., Exner v. American Medical Ass’n, 12 Wash.App. 215, 529 P.2d 863, 867 (1974) (fluoridation); Shields v. Booles, 238 Ky. 673, 38 S.W.2d 677, 681 (1931) (pro parimutuel law).
Here, the trial court concluded the articles were capable of conveying the mes*192sage that West was “a liar and the worst kind of political cheat.” This conclusion greatly exaggerates the import of the statements and is erroneous as a matter of law.
Municipal power is clearly a matter of public concern. “Communications to voters by an elected official ... which appropriately pertain to a political campaign are a matter of public interest.” Cox, 761 P.2d at 560. The statements regarding West’s position on municipal power do not directly imply West intended to deceive voters, nor do they imply he lied about his prior position. The statements say only that his position changed after the election. Moreover, any position, or change of position, regarding municipal power is a mainstream political position and not “at odds with the fundamental social order.” Id. at 562. Thus, the statements are not defamatory as a matter of law.
Neither is the accusation that West attempted to manipulate the press defamatory as a matter of law. The trial court correctly concluded that “the charge of manipulation of the press could not possibly give rise to a defamatory meaning in the minds of reasonable jurors.”
The majority claims the statement is actionable because there exists a “possibility of the debate” that an accusation of manipulation is defamatory. The majority, relying on a secondary definition in Webster’s, found the sentence actionable because one of the many definitions of the word “manipulate” has a negative connotation.
I disagree with this analysis. First, the same edition of Webster’s provides other, preferential definitions of the word: “handle or manage esp. with skill or dexterity,” “to treat or manage with the mind or intellect,” “to control the action or course of by management: utilize by controlling and managing.” Webster's Third New International Dictionary (unabridged) 1376 (1986).
More importantly, the notion that West exercised power over the press is not, as a matter of law, defamatory. The accusation that a political leader or a political candidate would attempt to manage or to exercise influence over the press is a mainstream, public expectation and, again, is “not at odds with the fundamental social order,” and thus is not defamatory. Cox, 761 P.2d at 562.
Courts have concluded that even stronger words used against political leaders and candidates are not actionable as a matter of law. See, e.g., Miskovsky v. Oklahoma Pub. Co., 654 P.2d 587, 594 (Okla.) (“scurrilous defamation” and “gutter theatrics” not actionable), cert. denied, 459 U.S. 923, 103 S.Ct. 235, 74 L.Ed.2d 186, reh’g denied, 459 U.S. 1059, 103 S.Ct. 479, 74 L.Ed.2d 625 (1982); Good Gov’t Group v. Superior Court, 22 Cal.3d 672, 150 Cal.Rptr. 258, 262, 586 P.2d 572, 576 (“recalcitrant,” “machinations,” “infamy” and so forth used against former city council member not actionable), cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1978).
I also dissent to the majority’s rejection, in note 11 of its opinion, of Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Anderson held that, in cases of summary dispositions involving libel, the plaintiff must produce clear and convincing evidence that the defendants acted with actual malice. Anderson, 477 U.S. at 252-54, 106 S.Ct. at 2512-13. This approach was acknowledged approvingly by the Utah Supreme Court in Cox, 761 P.2d at 561. The Cox court acknowledged “a First Amendment interest in disposing of libel cases on motion and at an early stage when it appears that a reasonable jury could not find for the plaintiffs.” Id.
In conclusion, I would affirm the trial court’s summary judgment and dismissal on the ground that the statements are not defamatory as a matter of law, pursuant to Utah Code Ann. § 45-2-2(1).