                   IN THE COURT OF APPEALS OF IOWA

                                    No. 19-1408
                                Filed June 17, 2020


ANDREW DUYVEJONCK,
    Plaintiff-Appellant,

vs.

DEBRA CLYDESDALE,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Thomas G. Reidel,

Judge.



      Andrew Duyvejonck appeals the district court’s summary judgment ruling

concluding a statement allegedly made by Debra Clydesdale about Duyvejonck

was an expression of opinion and not defamation per se. AFFIRMED.



      Michael J. McCarthy of McCarthy, Lammers & Hines, LLP, Bettendorf, for

appellant.

      Robert V.P. Waterman Jr. and Alexander C. Barnett of Lane & Waterman

LLP, Davenport, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and May, JJ.
                                            2


DOYLE, Judge.

          Plaintiff appeals the district court’s grant of summary judgment for

defendant on his defamation per se claim. The district court ruled the statement

allegedly made by the defendant, when viewed in context, constituted a non-

actionable opinion. We agree and affirm the district court’s summary judgment

ruling.

          I. Background Facts and Proceedings.

          In April 2017, Debra Clydesdale engaged Denise Dale, a mutual

acquaintance of herself and Andrew Duyvejonck, in a conversation at a local

restaurant and bar in Eldridge, Iowa. At the time, Andrew was divorcing his now

ex-wife and Clydesdale’s good friend, Tennesha Duyvejonck. After approaching

Dale, Clydesdale asked if they could “talk about this situation with Tennesha and

Andrew.” According to Dale’s affidavit,1

          She began telling me about what a horrible person Andrew was, and
          that he had treated Tennesha unfairly, committed adultery, and
          abused her. She suggested I call Tennesha, and consider testifying
          on her behalf in [the divorce] case, as her friend. . . . Next,
          [Clydesdale] proceeded to ask me if I thought it was weird that
          Andrew spent so much time with the kids, and had lunch all the time
          with them at school. “Don’t you think that is weird, Denise? I mean,
          he stays and plays on the playground with the kids. That is not
          normal! I’m telling you, there is something sick about this guy. Why
          would he want to spend so much time around little kids? I swear he
          is a pedophile, and that is why he is at school so much!?” I told her
          I did not agree, and that I saw lots of parents come and eat with their
          kids, and many had their Mom or Dad stay over afterwards to play
          with them on the playground.



1 The statements are from a November 2017 letter from Dale to Andrew’s lawyer.
Later, in support of her resistance to a summary judgment motion, Dale attached
the letter to an affidavit swearing the letter was written by her and the statements
and allegations in it were true and correct.
                                         3


       I ended the conversation by 8:45pm, as she was continuing on her
       personal tirade about Andrew’s personality and behavior. Much of it
       was purely her personal opinion, as Tennesha’s best friend. I have
       known and been good friends with Andrew [Duyvejonck] since 2013,
       when our kids first met in the neighborhood. I have never seen him
       demonstrate any inappropriate behavior with any children, including
       his own or anyone else’s. I was outraged at [Clydesdale]’s
       unfounded, and deeply disturbing, accusations, and called Andrew
       immediately to tell him what was said. It was upsetting to think that
       someone would make such a scandalous statement about someone
       without any proof, especially in our small community. (Emphasis
       omitted).

       In December 2017, Andrew sued Clydesdale for defamation. His petition

claimed: “On April 29, 2017, [Clydesdale] falsely spoke of and concerning

[Andrew], stating to Denise Dale and in the hearing of others that, ‘I swear he is a

pedophile, and that is why he is at school so much!’” Andrew asserted he suffered

damages as a result of the statement, and he requested punitive damages.

Clydesdale denied Andrew’s claims in her answer to the lawsuit. Later, in an

affidavit supporting her motion for summary judgment, Clydesdale stated she

“privately discussed” Andrew’s pending divorce with a mutual acquaintance,

Denise Dale. Clydesdale stated she struck up the conversation with Dale to inform

“Dale of the various ways she believed [Andrew] had mistreated her close friend,

Tennesha [Duyvejonck].”      Among other things, she informed Dale that she

believed Andrew “significantly increased the amount of time he spent at his

children’s school in an effort to appear as if he was a better parent than Tennesha

[Duyvejonck] while their divorce was pending.” Clydesdale’s answer to the lawsuit

denies she made the alleged “pedophile” remark. Her sworn affidavit is silent on

the matter.

       In her motion for summary judgment, Clydesdale argued:
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      [Andrew] cannot establish a prima facie case of slander.
      Clydesdale’s alleged statement is pure opinion because the factual
      premises underlying the statement are revealed. Likewise, even
      assuming Clydesdale called [Andrew] “a pedophile,” a reasonable
      listener would have easily perceived that Clydesdale’s words were
      mere name-calling or hyperbole and constituted an emotional
      venting of opinion within the context of her friend’s divorce from
      [Andrew]. (Courtesy titles omitted).

Ultimately, the district court agreed with Clydesdale. The court held,

      Because the entire conversation between [Clydesdale] and Ms. Dale
      was about [Andrew]’s divorce and Ms. Dale understood the
      conversation to be a personal opinion and tirade against [Andrew],
      the context of the entire conversation is supportive of a finding that
      she was expressing a scatological subjective opinion about
      [Andrew].

The court ruled that Clydesdale’s “alleged statement constitutes non-actionable

opinion under the Constitution” and granted the motion for summary judgment.

Andrew appeals. Our review is for corrections of errors at law. See Linn v.

Montgomery, 903 N.W.2d 337, 342 (Iowa 2017).

      II. Discussion.

      Summary judgment is proper only when the entire record shows the lack of

a genuine issue of material fact and the moving party is entitled to judgment as a

matter of law. Iowa R. Civ. P. 1.981(3); Linn, 903 N.W.2d at 342. “A matter may

be resolved on summary judgment if the record reveals only a conflict concerning

the legal consequences of undisputed facts.” Wallace v. Des Moines Indep. Cmty.

Sch. Dist. Bd. of Dirs., 754 N.W.2d 854, 857 (Iowa 2008). “When the facts are not

in dispute, ‘our role is simply to decide whether we agree with the district court’s

application of the law to the undisputed facts before us.’”              Kennedy v.

Zimmermann, 601 N.W.2d 61, 64 (Iowa 1999) (citation omitted) (cleaned up). “In

the context of a defamation action, only disputes over facts that might affect the
                                         5


outcome of the suit under the governing law will properly preclude the entry of

summary judgment.” Jones v. Palmer Commc’ns, Inc., 440 N.W.2d 884, 889 (Iowa

1989) (citation omitted) (cleaned up), overruled on other grounds by Schlegel v.

Ottumwa Courier, 585 N.W.2d 217, 224 (Iowa 1998). The trial court also has the

unique responsibility of determining “whether ‘allowing a case to go to a jury would,

in the totality of the circumstances, endanger first amendment freedoms.’” Id.

(citation omitted); see also Bierman v. Weier, 826 N.W.2d 436, 443 (Iowa 2013).

“When reviewing a district court’s ruling, we view the record in the light most

favorable to the nonmoving party.” Bandstra v. Covenant Reformed Church, 913

N.W.2d 19, 36 (Iowa 2018).

       Iowa’s defamation law “‘embodies the public policy that individuals should

be free to enjoy their reputation unimpaired by false and defamatory attacks.’” Id.

at 46 (citation omitted). “The centuries-old tort of defamation of character protects

a person’s common law ‘interest in reputation and good name.’” Bertrand v. Mullin,

846 N.W.2d 884, 891 (Iowa 2014) (citation omitted).

       Andrew argues Clydesdale’s comment was defamatory per se. To succeed

in proving defamation per se, a party must prove three elements: (1) publication,

(2) a defamatory per se statement, and (3) the statement was of or about the party.

See Bandstra, 913 N.W.2d at 46-47.

       To prove publication, a party must show the challenged communication was

made “to one or more third persons.” Id. at 47 (citation omitted). A “published

statement” may be communicated orally or in writing and can even include the

alteration of an image. See Bertrand, 846 N.W.2d at 891. “The third person must

not only hear the statement, but also understand it to be defamatory. Whether a
                                           6


listener understands a statement to be defamatory requires viewing the statements

‘in the context of the surrounding circumstances and within the entire

communication.’” Bandstra, 913 N.W.2d at 47 (citations omitted). The publication

element was satisfied when Clydesdale made the alleged statement to Dale.

       A defamatory per se statement has “a natural tendency to provoke the

plaintiff to wrath or expose [the plaintiff] to public hatred, contempt, or ridicule, or

to deprive [the plaintiff] of the benefit of public confidence or social intercourse.”

Bierman, 826 N.W.2d at 444 (Iowa 2013). “An attack on the integrity and moral

character of a party is libelous per se.” Vinson v. Linn-Mar Cmty. Sch. Dist., 360

N.W.2d 108, 116 (Iowa 1984). “Some statements are considered to be defamatory

per se if they are of a nature that a court can presume as a matter of law that their

publication will have a defamatory effect,” Huegerich v. IBP, Inc., 547 N.W.2d 216,

221 (Iowa 1996), such as “accusing an individual of being a liar, accusing an

individual of an indictable crime of moral turpitude or that carries a jail sentence,

and accusing an individual of falsifying information.” Bandstra, 913 N.W.2d at 47

(citations omitted). Other statements characterized as defamation per se include

imputation of a loathsome disease, Shultz v. Shultz, 275 N.W. 562, 565 (Iowa

1937), adultery, Arnold v. Lutz, 120 N.W. 121, 121 (Iowa 1909), bestiality, Haynes

v. Ritchey, 30 Iowa 76, 77 (1870), and theft, Hicks v. Walker; 2 Greene 440, 442

(Iowa 1850). See also Barreca v. Nickolas, 683 N.W.2d 111, 116 (Iowa 2004)

(citing cases and Patrick J. McNulty, The Law of Defamation: A Primer for the Iowa

Practitioner, 44 Drake L. Rev. 639, 650-52 (1996) (“cataloguing Iowa slander per

se cases, which the author suggests fall into four general categories: imputation of

(1) certain indictable crimes, (2) loathsome disease, (3) incompetence in
                                          7


occupation, and (4) unchastity”)). Even so, as one court aptly stated, “Americans

have been hurling epithets at each other for generations. . . . Certainly such name

calling, either expressed or implied, does not always give rise to an action.” Raible

v. Newsweek, Inc., 341 F. Supp. 804, 808 (W.D. Pa. 1972).

       There is no question the term “pedophile” has a repugnant, repulsive, and

vile connotation. In fact, “in almost every circumstance a reasonable listener would

believe that calling a person a pedophile imputes serious sexual misconduct or

criminal activity to that person.” Longbehn v. Schoenrock, 727 N.W.2d 153, 159

(Minn. Ct. App. 2007) (holding that calling a person a pedophile was defamatory

per se); see also Wilson v. Wilson, No. 21443, 2007 WL 127657, at *3 (Ohio Ct.

App. Jan. 19, 2007) (accusation of pedophilia “constituted defamation per se

because the assertion of pedophilia involves a charge of moral turpitude and is an

indictable offense”); accord Rossignol v. Silvernail, 586 N.Y.S.2d 343, 345 (App.

Div. 1992) (upholding defamation award when the plaintiff was “labeled a child

abuser—one of the most loathsome labels in society”). “There are few accusations

more damaging or harmful to a young man’s reputation than being called a sex

offender or child molester.” Kennedy v. Jasper, 928 S.W.2d 395, 400 (Mo. Ct.

App. 1996).     In Bierman, a defendant author made statements about the

plaintiffs—his ex-wife and her father—in his published book. See 826 N.W.2d at

440. The author accused his ex-wife “of lying to their daughters, being a bad

parent, having a lack of religious conviction, and generally being mean and

spiteful.” Id. He alleged his ex-wife’s father “molested her as a child and that she

suffered from either bipolar disorder or borderline personality disorder as a result.”

Id.   The district court in that case found the statements alleged constituted
                                          8

defamation per se and granted partial summary judgment for the plaintiffs. Id. The

supreme court affirmed the ruling, agreeing “that ‘stating a person has been

molested by their father and suffers from bipolar disorder constitutes libel per se

under Iowa law.’” Id.

       While pedophilia is not a crime per se,2 it suggests a criminal act has or will

occur. We do not see how calling someone a “pedophile” is distinguishable from

asserting someone is a child molester or suffers from a mental disorder. In any

event, pedophilia is a mental disorder. The term pedophile unambiguously tends

to subject a person so labeled to wrath or expose the person to public hatred,

contempt, or ridicule. We therefore characterize an accusation of pedophilia as

defamation per se. The second element was satisfied.

       The alleged statement was about Andrew, so the third element was

satisfied. Although all three elements necessary to prove defamation per se have

been met, our task does not end here.

       Clydesdale argues her alleged comment was “pure opinion” protected

under the First Amendment. Historically, all statements of opinion were considered

“absolutely protected under the First Amendment.” See Jones, 440 N.W.2d at 891.

But the Supreme Court clarified that was not the case, rejecting “the creation of an

artificial dichotomy between ‘opinion’ and ‘fact.’” Yates v. Iowa W. Racing Ass’n,


2 A “pedophile” is defined as a person “who is sexually attracted to children.”
Pedophile, Black’s Law Dictionary (11th ed. 2019); see also Copeland-Jackson v.
Oslin, 555 F. Supp. 2d 213, 217 (D.D.C. 2008) (“The dictionary definition of
‘pedophile’ is ‘an adult who is sexually attracted to a child or young children.’”). By
definition, it is a mental state, not an act. Consequently, pedophilia is a crime only
when it is acted upon; a person can be a pedophile without having ever been
convicted of a sex crime. The terms “pedophile” and “pedophilia” do not appear in
Iowa’s Criminal Code.
                                            9

721 N.W.2d 762, 769-71 (Iowa 2006) (discussing Milkovich v. Lorain Journal Co.,

497 U.S. 1, 19-20 (1990)).        Under Milkovich, “statements of opinion can be

actionable if they imply a provable false fact, or rely upon stated facts that are

provably false.” Id. at 771 (citation omitted). It “is not the literal wording of the

statement” a plaintiff must prove false “but what a reasonable reader or listener

would have understood the author to have said.” Id. Statements that cannot

reasonably be interpreted as stating actual facts about a person, such as rhetorical

hyperbole, are protected by the First Amendment. Iowa Supreme Ct. Attorney

Disciplinary Bd. v. Weaver, 750 N.W.2d 71, 82 (Iowa 2008) (discussing Milkovich,

497 U.S. at 16-22).

       In evaluating the totality of the circumstances while determining whether a

statement is a protected opinion, we consider four factors: (1) “whether the alleged

defamatory statement has a precise core of meaning for which a consensus of

understanding exists or, conversely, whether the statement is indefinite and

ambiguous”; (2) “the degree to which the alleged defamatory statements are

objectively capable of proof or disproof”; (3) “the context in which the alleged

defamatory statement occurs”; and (4) “the broader social context into which the

alleged defamatory statement fits.” Bandstra, 913 N.W.2d at 47 (cleaned up).

Here, the district court considered these factors and ultimately concluded that “the

context of the entire conversation is supportive of a finding that [Clydesdale] was

expressing a scatological subjective opinion about [Andrew].” Though this is a

close call, we agree.

       As to the first factor, the district court found,
                                   10


The term “pedophile” means “an adult who engages in pedophilia.”
State v. Dozal, No. 06-0484, 2006 WL 3019025, at *1 (Iowa Ct. App.
Oct. 25, 2006) (quoting Pedophile, Black’s Law Dictionary (8th ed.
2004)). Pedophilia is a serious mental disorder that is directly related
to individuals who commit certain types of sexual offense crimes
against children including the “adult act of child molestation.” Id.; see
Kansas v. Hendricks, 521 U.S. 346, 360 (1997); see In re Detention
of Barnes, 689 N.W.2d 455, 459–60 (Iowa 2004). The general
consensus of what constitutes a “pedophile” aligns with the legal
definition and explanations.
        Based upon the definition of the word “pedophile” and its
correlation to a serious mental disorder and criminal activity with
minors as victims, the Court finds that the term “pedophile” “has a
precise core of meaning for which a consensus of understanding
exists.” See Yates, 721 N.W.2d at 770. Therefore, the Court also
finds that the alleged defamatory statement at issue has a meaning
for which a majority of people understand. (Footnote omitted).

As to the second factor, the district court found,

        Under the Iowa Code, one definition of sexual abuse is when
a sex act is performed, and one of the individuals involved is a child.
Iowa Code § 709.1 (2019). The Iowa Code also has a list of sexual
acts that are illegal to perform with a child. Iowa Code §§ 709.8,
709.12 (2019). The state of Iowa also has rules of evidence that
determine what is admissible and inadmissible in court proceedings.
See Iowa R. Evid. ch. 5. Therefore, if a sexual offense crime against
a child is committed, there is a process in which to prove that a
person committed a sexual act that is associated with pedophilia.
        However, proving whether an individual is a pedophile is not
easily verifiable. An individual can be labeled a pedophile through a
medical diagnosis or findings of a Court. See Kansas, 521 U.S. at
360; see Dozal, 2006 WL 3019025, at *1. For accusations of criminal
behavior associated with pedophilia to make it to a courtroom or to a
doctor for diagnosis, the sexual offense often has to be reported to
law enforcement. There are also instances in which children delay
reporting sexual abuse or show no immediate signs of sexual abuse.
See State v. Fox, 480 N.W.2d 897, 899 (Iowa Ct. App. 1991); State
v. Dodson, 452 N.W.2d 610, 610–612 (Iowa Ct. App. 1989).
        Therefore, the Court finds that while proving an individual is a
pedophile is capable of being proven or disproven under Iowa law, it
is not easily verifiable. (Footnote omitted).

As to the third and fourth elements, the district court found,

To examine the context of the Defendant’s statement, the Court must
examine the entire conversation and not just the word “pedophile.”
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       The crux of this action turns on the context of the Defendant’s entire
       conversation with Ms. Dale. In the present case, Ms. Dale was the
       Defendant’s intended audience because the Defendant specifically
       approached her to talk about the Plaintiff’s divorce. During the
       conversation, the Defendant allegedly also told Ms. Dale that the
       Plaintiff abused, cheated on, and treated his ex-wife unfairly. The
       social context of the entire conversation and alleged defamatory
       statement was at a minimum an attempt to change Ms. Dale’s
       personal opinion of the Plaintiff by gossiping about the divorce and
       at a maximum a veiled attempt to persuade Ms. Dale to testify for the
       Plaintiff’s ex-wife during the divorce proceedings. Ms. Dale, as the
       intended audience, understood the Defendant’s alleged defamatory
       statement as a tirade and mostly a personal opinion of the Defendant
       to the point that she had a direct response to the Defendant’s alleged
       defamatory statement.

       In a vacuum, the statement “I swear he is a pedophile” would be viewed by

the average listener as a statement of fact that the person spoken of was a child

molester. It is easy to verify if one is a convicted child molester. Unless convicted

of sex abuse of a child, it is not so easy to verify if one is a pedophile. Under the

circumstances presented here, we believe the most important factor is the context

in which the statement was made.         We agree with the district court that if

Clydesdale made the comment, a reasonable person would have understood she

was stating her opinion in a rant against Andrew rather than setting forth actual

facts. The proof in the pudding is that Dale did not believe the comment for a

second. In fact, Dale told Clydesdale to her face that she did not agree. Dale

recognized much of what Clydesdale said was a harangue of purely personal

opinion by Tennesha’s best friend.       While calling Andrew a pedophile was

repugnant, repulsive, and vile— “vitriolic name-calling at a minimum” as the district

court put it—the statement as alleged did not rise to the level of defamation per se

under the context of the conversation. The district court was on the mark when it

concluded that “Because the entire conversation between [Clydesdale] and Ms.
                                       12


Dale was about [Andrew]’s divorce and Ms. Dale understood the conversation to

be a personal opinion and tirade against [Andrew], the context of the entire

conversation is supportive of a finding that she was expressing a scatological

subjective opinion about [Andrew].”

      Given the circumstances and context in which the alleged statement was

made, we agree with the district court that the statement made by Clydesdale to

Dale constituted protected non-actionable opinion speech. Thus, Andrew cannot

establish a prima facie case of defamation and his claim fails as a matter of law.

So we affirm the district court’s ruling granting summary judgment for Clydesdale.

      AFFIRMED.
