Moats v. Republican Party of Neb.

This Court Need Not Address Riley’s
Remaining Assignments of Error.
[7] Having determined that Riley’s convictions should be
reversed based on the polygraph issue, we need not address
Riley’s remaining assignments of error. However, an appellate
court may, at its discretion, discuss issues unnecessary to the
disposition of an appeal where those issues are likely to recur
during further proceedings. State v. Parker, 276 Neb. 661, 757
N.W.2d 7 (2008). We discussed Riley’s assignments of error
with regard to the manslaughter instruction and the inconsistent
verdicts to the extent necessary in connection with our review
above of whether there may be a retrial on remand. We need
not comment further on such issues, and we need not consider
any of Riley’s remaining assignments of error.
CONCLUSION
We conclude that the district court erred when it overruled
Riley’s motion for a mistrial based on Jones’ testimony that he
took a polygraph test. We therefore reverse Riley’s convictions
for manslaughter and three counts of attempted second degree
murder. We further conclude that there was sufficient evidence
to support Riley’s convictions and that therefore, Riley may be
retried on such charges on remand.
R eveRsed and Remanded foR a new tRial .
mOatS v. RepUbLICaN paRty Of Neb. 	411
Cite as 281 Neb. 411
R ex J. moats , appellant, v. R epublican paRty
of nebRaska , also known as the nebRaska
R epublican paRty, appellee .
796 N.W.2d 584
filed april 28, 2011. 	No. S-09-929.
1. Motions to Dismiss: Pleadings: Appeal and Error. an appellate court reviews
a district court’s order granting a motion to dismiss de novo, accepting all the
allegations in the complaint as true and drawing all reasonable inferences in favor
of the nonmoving party.
2. Motions to Dismiss: Pleadings. to prevail against a motion to dismiss for fail-
ure to state a claim, a plaintiff must allege sufficient facts, accepted as true, to
state a claim to relief that is plausible on its face. In cases in which a plaintiff
does not or cannot allege specific facts showing a necessary element, the factual
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:45 AM CST

allegations, taken as true, are nonetheless plausible if they suggest the existence
of the element and raise a reasonable expectation that discovery will reveal evi-
dence of the element or claim.
3. Statutes: Appeal and Error. In the absence of anything to the contrary, statutory
language is to be given its plain and ordinary meaning; an appellate court will
not resort to interpretation to ascertain the meaning of statutory words which are
plain, direct, and unambiguous.
4. Libel and Slander: Negligence. a claim of defamation requires (1) a false and
defamatory statement concerning the plaintiff, (2) an unprivileged publication to
a third party, (3) fault amounting to at least negligence on the part of the pub-
lisher, and (4) either actionability of the statement irrespective of special harm or
the existence of special harm caused by the publication.
5. Libel and Slander: Proof: Words and Phrases. When the plaintiff in a libel
action is a public figure and the speech is a matter of public concern, the plaintiff
must demonstrate actual malice, which means knowledge of falsity or reckless
disregard for the truth, by clear and convincing evidence.
6. Libel and Slander: Proof. the plaintiff in a public-libel action must establish by
clear and convincing evidence that the alleged statement is false.
7. Libel and Slander: Words and Phrases. there are two types of libel: Words
may be actionable per se, that is, in themselves, or they may be actionable per
quod, that is, only on allegation and proof of the defamatory meaning of the
words used and of special damages.
8. Libel and Slander. Whether a communication is libelous per se is a threshold
question of law for the court.
9. ____. a communication is defamatory if it tends so to harm the reputation of
another as to lower him or her in the estimation of the community or to deter
third persons from associating or dealing with him or her.
10. ____. trial courts initially determine whether a statement is capable of
defamatory meaning, and then the jury decides whether the words were so
understood.
11. Constitutional Law: Libel and Slander. In the context of a defamation claim,
the first amendment protects the publication of statements which cannot be
interpreted as stating actual facts, but, rather, is the opinion of the author.
12. ____: ____. In assessing whether a statement implies a false assertion of fact or
a protected opinion, a court looks at the nature and content of the communication
and to the knowledge and understanding of the audience to whom the publication
was directed.
13. ____: ____. Courts applying the totality of the circumstances test in a defa-
mation claim look to factors such as whether the general tenor of the entire
work negates the impression that the defendant was asserting an objective fact,
whether the defendant used figurative or hyperbolic language that negates the
impression, and whether the statement in question is susceptible of being proved
true or false.
14. ____: ____. publications that are alleged to constitute a false light invasion of
privacy merit the same constitutional protections as publications alleged to be
defamatory.
412 	281 NebRaSka RepORtS

appeal from the District Court for Douglas County: w.
maRk ashfoRd, Judge. affirmed.
David a. Domina, of Domina Law Group, p.C., L.L.O., and,
on brief, mark D. Raffety, for appellant.
L. Steven Grasz, of Husch, blackwell & Sanders, L.L.p.,
for appellee.
heavican, c.J., connolly, G eRRaRd, stephan, mccoRmack ,
and milleR-leRman, JJ.
peR cuRiam.
INtRODUCtION
the appellant, Rex J. moats, a former candidate for the
Nebraska Legislature, filed a complaint in the district court
for Douglas County against the appellee, the Republican party
of Nebraska, also known as the Nebraska Republican party
(Republican party). In his complaint, moats identified 11 num-
bered publications issued by the Republican party which he
alleges were actionable under various theories. With respect to
each publication, except publication No. 10, moats alleged that
the publication violated his rights under Nebraska’s Consumer
protection act (Cpa), see Neb. Rev. Stat. § 59-1601 et seq.
(Reissue 2010); defamed him; and amounted to an invasion of
privacy by putting him in a false light in violation of Neb. Rev.
Stat. § 20-204 (Reissue 2007). moats also alleged that publica-
tion No. 10, although not defamatory, violated his rights under
the Cpa and amounted to an invasion of privacy by putting him
in a false light.
the Republican party filed a motion to dismiss the com-
plaint. the district court for Douglas County dismissed moats’
complaint in its entirety under Neb. Ct. R. pldg. § 6-1112(b)(6)
for failing to state a claim upon which relief could be granted.
moats appeals. We affirm.
faCtUaL baCkGROUND
In 	2008, 	moats 	became 	a 	candidate 	for 	the 	Nebraska
Legislature in District 39. During the course of the election,
the Republican party paid for and distributed publications
mOatS v. RepUbLICaN paRty Of Neb. 	413
Cite as 281 Neb. 411

in opposition to moats’ candidacy. moats filed a complaint
in Douglas County District Court in which he identified 11
numbered publications that he alleged were actionable. moats
claimed that 10 of these publications were actionable under
three theories: violation of the Cpa, defamation, and the tort
of invasion of privacy by false light. In his complaint, moats
claimed that publication No. 10 was actionable only under the
theories of violation of the Cpa and the tort of invasion of
privacy by false light. the content of publication No. 10 is not
quoted in the complaint.
the relevant portions of the 11 publications are described in
moats’ complaint as follows:
publication No. 1: On or about april 20, 2008, a publication
designated “Ne GOp 39-001” asserted: “‘Trial attorney Rex
Moats is a registered Democratic [sic] and the Democrat [sic]
Party is supporting him!’”
publication No. 2: On may 7, 2008, an 81⁄2- by 11-inch folder
designated “Ne GOp 39-003” asserted: “‘Moats received a
$50,000 trust fund from the director of National Warranty.’”
publication No. 3: On may 5, 2008, a publication stated:
“‘Would you put a shady insurance company based in the
Cayman Islands ahead of Nebraska’s consumers? You wouldn’t.
But trial attorney Rex Moats would . . . .’” this publication
further stated: “‘How did Rex Moats mislead creditors and
the public? Rex Moats claimed in an affidavit that National
Warranty was doing financially well.’”
publication No. 4: this publication was an illustrated let-
ter purportedly sent by moats from the Cayman Islands to
Nebraskans. On the front, it stated: “‘Greetings from the
Cayman Islands. From insurance company trial lawyer extraor-
dinaire Rex Moats.’” On the back of the letter, it stated in rel-
evant part:
Dear Nebraskan,
Hello from the Cayman Islands! I have really enjoyed
my time over here. the weather is great, the food is great,
and most importantly — I have a fantastic job working
for a shady insurance company that is incorporated
right here in the Cayman Islands. the tax benefits sure
are great out here!
414 	281 NebRaSka RepORtS

Unfortunately my company, National Warranty, has
gone bankrupt and is unable to pay off numerous claims
for thousands of Nebraskans. also, it looks like I have
made misleading statements in an affidavit. evidently, I
claimed that my company is doing “just fine,” but then
declared bankruptcy two weeks later.
publication No. 5: On October 2, 2008, a brochure publica-
tion designated “Ne GOp 0004” asserted: “‘Rex Moats and
National Warranty went down as a result of the same irrespon-
sibility we see on Wall Street.’”
publication No. 6: On October 8, 2008, a publication desig-
nated “Ne GOp 002” asserted: “‘Rex Moats cannot be trusted
with your money.’” the publication further stated that moats
was a “‘trial attorney’” and that “‘National Warranty’s direc-
tors set aside $50,000 for Rex Moats.’”
publication No. 7: an October 20, 2008, publication asserted
that moats was sued as a defendant in litigation. according
to the complaint, the publication failed to disclose that the
litigation against moats was dismissed without a trial and had
no merit. the publication also asserted: “‘Rex Moats took a
$50,000 golden parachute just as National Warranty cost 150
Nebraskans their jobs and left unpaid promises to hundreds of
thousands of vehicle buyers.’”
publication No. 8: On October 30, 2008, a publication
designated “Ne GOp 009” asserted: “‘Rex Moats received a
$50,000 golden parachute even though 150 Nebraskans lost
their jobs.’” On October 31, the Republican party issued a
publication which stated: “‘Rex Moats misled creditors and the
public about the solvency of National Warranty. Even worse,
right before the company folded, Moats received $50,000 from
the directors of National Warranty.’”
publication No. 9: On November 1, 2008, a publication
designated “Neb 023,” exhibiting a newborn baby, asserted:
“‘[A]ccording to his own letter to the editor of a local
newspaper, Rex Moats supports using your tax dollars to
fund abortions.’”
publication No. 10: On November 1, 2008, the Republican
party 	issued 	a 	publication 	designated 	“Neb-015” 	which,
according to the complaint, asserted “false information.” the
mOatS v. RepUbLICaN paRty Of Neb. 	415
Cite as 281 Neb. 411

complaint does not contain the substance of the publication.
moats alleges that this publication was within the bounds of
what is permissible under the law of defamation.
publication No. 11: On November 3, 2008, the Republican
party 	issued 	a 	publication 	which 	asserted: 	“‘Rex 	Moats
was legal counsel for a now bankrupt insurance company
that cost Nebraskans their jobs but rewarded Rex with a
$50,000 trust,’” and “‘Rex Moats supports using tax dollars to
fund abortions.’”
In his complaint, moats claimed that each one of the above
publications was false and that the statements in each of the
publications were made by the Republican party with actual
malice. moats further alleged that the actions undertaken by
the Republican party constituted “smears against . . . moats,
i.e., deliberate and unsubstantiated accusations intended to
foment distrust or hatred against . . . moats.” moats’ complaint
stated that he suffered actual and special damages but did not
plead damages with particularity.
the Republican party filed a motion to dismiss the complaint
for failure to state a claim for relief pursuant to § 6-1112(b)(6).
the court held a hearing on the matter on may 27, 2009, and
filed an order granting the motion to dismiss the complaint in
its entirety on September 3. moats appeals.
aSSIGNmeNtS Of eRROR
moats claims that the district court erred in (1) dismiss-
ing moats’ complaint for failure to state any claim upon
which relief could be granted; (2) failing to recognize that
the 11 publications constituted a violation of the Cpa by
the Republican party; (3) failing to recognize that the claims
asserted by moats constituted defamation against him; (4) fail-
ing to recognize that moats has stated “one or more” claims
for having been placed in a false light contrary to § 20-204;
and (5) failing to grant moats leave to amend his complaint to
cure any technical deficiencies, such as pleading special dam-
ages with particularity.
StaNDaRD Of ReVIeW
[1,2] an appellate court reviews a district court’s order grant-
ing a motion to dismiss de novo, accepting all the allegations
416 	281 NebRaSka RepORtS

in the complaint as true and drawing all reasonable inferences
in favor of the nonmoving party.1 to prevail against a motion
to dismiss for failure to state a claim, a plaintiff must allege
sufficient facts, accepted as true, to state a claim to relief that
is plausible on its face. In cases in which a plaintiff does not or
cannot allege specific facts showing a necessary element, the
factual allegations, taken as true, are nonetheless plausible if
they suggest the existence of the element and raise a reasonable
expectation that discovery will reveal evidence of the element
or claim.2
aNaLySIS
constitutional consideRations
as an initial matter, both moats and the Republican party
draw our attention to the fact that this case arises in the context
of a political campaign and has first amendment implications.
While considering a first amendment challenge to the consti-
tutionality of a federal criminal statute, the U.S. Supreme Court
recently summarized the historical and accepted restrictions
upon the content of speech as follows:
“from 1791 to the present,” . . . the first amendment
has “permitted restrictions upon the content of speech
in a few limited areas,” and has never “include[d] a
freedom to disregard these traditional limitations.” . . .
these “historic and traditional categories long familiar
to the bar,” . . . including obscenity, . . . defamation, . . .
fraud, . . . incitement, . . . and speech integral to crimi-
nal conduct, . . . are “well-defined and narrowly limited
classes of speech, the prevention and punishment of
which have never been thought to raise any Constitutional
problem.”3
both parties note that the first amendment’s provision
of freedom of speech affords broad protection to political
1 Doe v. Board of Regents, 280 Neb. 492, 788 N.W.2d 264 (2010).
2 Id.
3 United States v. Stevens, 559 U.S. 460, 468-69, 130 S. Ct. 1577, 176 L.
ed. 2d 435 (2010) (citations omitted).
mOatS v. RepUbLICaN paRty Of Neb. 	417
Cite as 281 Neb. 411

expression4 and that free “discussions of candidates” are to
be encouraged.5 It has been said that “‘in public debate [we]
must tolerate insulting, and even outrageous, speech in order to
provide adequate “breathing space” to the freedoms protected
by the first amendment.’”6 both parties agree that moats is a
public figure and acknowledge that in order to protect his repu-
tation, as a former candidate, he is entitled to bring an action
relative to the discourse which occurred during the campaign.7
It is in this context that we examine the viability of the allega-
tions in the complaint filed by moats.
publications issued by R epublican paRty
did not violate cpa
moats claims that the statements issued by the Republican
party violate the Cpa, which provides that “[u]nfair meth-
ods of competition and unfair or deceptive acts or practices
in the conduct of any trade or commerce shall be unlaw-
ful.”8 elsewhere, the Cpa provides: “trade and commerce
shall mean the sale of assets or services and any commerce
directly or indirectly affecting the people of the State of
Nebraska.”9
[the] Cpa mirrors federal law. Compare 15 U.S.C.
§ 45(a)(1) (“[U]nfair or deceptive acts or practices in
or affecting commerce, are hereby declared unlawful.”)
with Neb. Rev. Stat. § 59-1602 (“[U]nfair or deceptive
acts or practices in the conduct of any trade or commerce
shall be unlawful.”) . . . the Cpa is essentially the state
4 See Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. ed. 2d 1498
(1957).
5 Mills v. Alabama, 384 U.S. 214, 218, 86 S. Ct. 1434, 16 L. ed. 2d 484
(1966).
6 Snyder v. Phelps, 562 U.S. 443, 458, 131 S. Ct. 1207, 179 L. ed. 2d 172
(2011) (quoting Boos v. Barry, 485 U.S. 312, 108 S. Ct. 1157, 99 L. ed.
2d 333 (1988)).
7 See Harte-Hanks Communications v. Connaughton, 491 U.S. 657, 109 S.
Ct. 2678, 105 L. ed. 2d 562 (1989).
8 § 59-1602.
9 § 59-1601(2).
418 	281 NebRaSka RepORtS

version of the Sherman antitrust act. . . . although the
Cpa provides both a private right of action and a public
right, disputes that fall within the ambit of the Cpa are
unfair or deceptive trade practices that affect the pub-
lic interest.10
moats contends that the statements made by the Republican
party during the campaign were deceptive acts or practices
in the conduct of the Republican party’s trade or commerce;
moats claims the trades at issue are political speech and
political campaigns. We understand moats’ argument to be that
because the Republican party conducts a trade, it is subject
to the provisions of the Cpa. the Republican party disagrees
with moats. It claims that the complaint involves campaign
literature which is political speech and not an asset or service
under § 59-1601(2) and, therefore, not covered by the Cpa.
the Republican party claims that the complaint fails to allege
facts actionable under the Cpa and does not raise a reasonable
expectation that discovery will cure the defects.
the district court concluded that this case does not fall
within the ambit of the Cpa because the Republican party
was not engaged in “the sale of assets or services” and
therefore not engaged in “[t]rade and commerce” under the
Cpa.11 the district court cited to black’s Law Dictionary
which defines commerce as “[t]he exchange of goods and
services.”12 the court concluded that with respect to each of
the 11 publications, moats was attempting to expand the Cpa
beyond that which it was intended to regulate. this ruling
was not error.
On appeal, moats claims that the Republican party is a
business and therefore subject to the Cpa. moats relies on
cases and treatises noting that political parties must organize
and file tax returns, and argues that such activities show that
political parties conduct a “trade or commerce” for purposes
10 Triple 7, Inc. v. Intervet, Inc., 338 f. Supp. 2d 1082, 1087 (D. Neb.
2004).
11 See § 59-1601(2).
12 black’s Law Dictionary 304 (9th ed. 2009).
mOatS v. RepUbLICaN paRty Of Neb. 	419
Cite as 281 Neb. 411

of § 59-1602 of the Cpa.13 moats relies on Grebner v. State,14
in which the michigan Supreme Court considered a statute
regulating balloting and indicated that a political consult-
ing firm was a business. moats also asserts that “‘political
speech’” is a “‘“trade”’” and refers this court to publications
indicating that large sums of money are spent on campaigns.15
We do not find these authorities, references, or arguments to
be persuasive in establishing moats’ contention that this court
should read the Cpa to encompass the political speech made
during the campaign at issue. We also note that in his argu-
ments, moats has not set forth any case holding that the Cpa
of this state, or any other state, regulates speech used during a
political campaign.
[3] In assessing the meaning of a statute, we are guided by
the principle that in the absence of anything to the contrary,
statutory language is to be given its plain and ordinary mean-
ing; an appellate court will not resort to interpretation to ascer-
tain the meaning of statutory words which are plain, direct,
and unambiguous.16
the Cpa states in § 59-1602 that it is unlawful to engage
in unfair methods of competition and unfair or deceptive acts
or practices in the conduct of any trade or commerce. trade
and commerce mean the sale of assets or services.17 this case
involves the propriety of the content of political speech used
during a political campaign; regardless of the fact that the
public was exposed to the speech and regardless of whether
the Republican party is a form of business, this case does
not involve the sale of goods or services to the public. as
the district court correctly concluded, the plain language of
the Cpa does not encompass a prohibition on the content
of the campaign literature or political speech issued by the
13 See, e.g., 25 am. Jur. 2d Elections § 197 (2004).
14 Grebner v. State, 480 mich. 939, 744 N.W.2d 123 (2007).
15 brief for appellant at 28.
16 Swift & Co. v. Nebraska Dept. of Rev., 278 Neb. 763, 773 N.W.2d 381
(2009).
17 § 59-1601(2).
420 	281 NebRaSka RepORtS

Republican party in this case. accordingly, we affirm the dis-
trict court’s ruling that none of the 11 claims made under the
Cpa are actionable.
publications aRe not defamatoRy
moats claims that with the exception of publication No. 10,
the publications made by the Republican party were defama-
tory. moats further contends that he should be given leave to
amend his complaint to cure any technical deficiencies in the
complaint. moats argues that he has not waived his right to
amend because there was no opportunity to request leave to
amend, at the district court level.
the Republican party challenges the allegations of defa-
mation for various reasons, including that the allegations of
defamation in the complaint lack contextual specificity, and
asserts that even if the complaint were sufficiently pled, the
publications were not defamatory because they were gener-
ally either opinion, parody, or were otherwise not actionable
assertions. the Republican party also argues that the complaint
is insufficient because moats did not plead special damages
with particularity.
the district court determined that none of the statements
made by the Republican party were defamatory per se and
that therefore, it was necessary for moats to plead the defama-
tory nature of the language. the district court determined that
because moats failed to do so, the complaint was insufficient
and dismissed the complaint.
We first address whether the contents of the publications at
issue are potentially viable in defamation.
[4-6] In the ordinary case, a claim of defamation requires (1)
a false and defamatory statement concerning the plaintiff, (2)
an unprivileged publication to a third party, (3) fault amount-
ing to at least negligence on the part of the publisher, and (4)
either actionability of the statement irrespective of special
harm or the existence of special harm caused by the publica-
tion.18 However, with respect to fault, when the plaintiff in a
libel action is a public figure and the speech is a matter of
18 Nolan v. Campbell, 13 Neb. app. 212, 690 N.W.2d 638 (2004).
mOatS v. RepUbLICaN paRty Of Neb. 	421
Cite as 281 Neb. 411

public concern, the plaintiff must demonstrate “actual malice,”
which means knowledge of falsity or reckless disregard for the
truth, by clear and convincing evidence.19 the plaintiff in a
“public-libel” action must establish that the alleged statement
is false by clear and convincing evidence and establish special
damages.20 In this case, the parties agree that moats is a pub-
lic figure.
[7,8] there are two types of libel: Words may be actionable
per se, that is, in themselves, or they may be actionable per
quod, that is, only on allegation and proof of the defamatory
meaning of the words used and the existence of special dam-
ages.21 Whether a communication is libelous per se is a thresh-
old question of law for the court.22
In Matheson v. Stork,23 we stated:
Spoken or written words are slanderous or libelous per
se only if they falsely impute the commission of a crime
involving moral turpitude, an infectious disease, or unfit-
ness to perform the duties of an office or employment,
or if they prejudice one in his or her profession or trade
or tend to disinherit one. . . . In determining whether a
communication is libelous or slanderous per se, the court
must construe the questioned language “in its ordinary
and popular sense.” [However,] [w]here a communica-
tion is “ambiguous or . . . meaningless unless explained,
or . . . prima facie innocent, but capable of defamatory
meaning, it [is per quod and it] is necessary to specially
allege and prove the defamatory meaning of the words
used, and to allege and prove special damages.” . . .
further, the circumstances under which the publication
of an allegedly defamatory communication was made,
19 See Hoch v. Prokop, 244 Neb. 443, 445, 507 N.W.2d 626, 629 (1993).
20 See id. See, also, K Corporation v. Stewart, 247 Neb. 290, 526 N.W.2d
429 (1995).
21 K Corporation v. Stewart, supra note 20.
22 Id.
23 Matheson v. Stork, 239 Neb. 547, 553, 477 N.W.2d 156, 160-61 (1991)
(citations omitted).
422 	281 NebRaSka RepORtS

the character of the audience and its relationship to the
subject of the publication, and the effect the publication
may reasonably have had upon such audience must be
taken into consideration.
moats argues that the statements in publications Nos. 3 and
4 involving misleading statements made by him in an affida-
vit accuse him of falsifying an affidavit and were defama-
tory per se, because falsifying an affidavit is a crime.24 We
disagree with moats’ conclusion. a review of the language in
these publications shows that the publications accused moats
of making misleading statements in an affidavit, not of mak-
ing false statements in an affidavit. as such, the statements
in publications Nos. 3 and 4 do not rise to the level of accus-
ing moats of committing any crime and therefore are not
defamatory per se. Indeed, after reviewing all 10 publications,
we conclude that none of the publications were defamatory
per se.
because the publications at issue were not defamatory per
se, it was necessary for moats to plead the defamatory nature
of the words and special damages to properly plead his def-
amation per quod claims.25 a defamation per quod claim
is available within the context of a political campaign.26 In
assessing whether moats has sufficiently pled a claim for
defamation per quod, we consider that the statements at issue
in this case were made in the course of a political campaign.
We also acknowledge the tension between the need to protect
one’s reputation through a defamation action and the impor-
tance of first amendment guarantees as they relate to political
speech. Indeed, the U.S. Supreme Court noted that the first
amendment has “‘“its fullest and most urgent application”’” to
24 See Neb. Rev. Stat. §§ 28-915 and 28-915.01 (Reissue 2008).
25 See K Corporation v. Stewart, supra note 20. See, also, Norris v. Hathaway,
5 Neb. app. 544, 561 N.W.2d 583 (1997).
26 See, e.g., Maag v. Illinois Coalition for Jobs, 368 Ill. app. 3d 844, 858
N.e.2d 967, 306 Ill. Dec. 909 (2006) (discussing defamation in connection
with judicial retention campaign).
mOatS v. RepUbLICaN paRty Of Neb. 	423
Cite as 281 Neb. 411

speech uttered during political campaigns.27 the U.S. Supreme
Court has pointed out the “profound national commitment to
the principle that debate on public issues should be uninhib-
ited, robust, and wide-open, and that it may well include vehe-
ment, caustic, and sometimes unpleasantly sharp attacks on . . .
public officials.”28 We have similarly observed that the “first
amendment encourages robust political debate,”29 though we
have also noted that “its protections are not absolute.”30 It is
well settled that there is no constitutional right to espouse false
assertions of facts, even against a public figure in the course of
public discourse.31
[9,10] It is within this context that we review the defama-
tory nature of the statements made by the Republican party.
“a communication is defamatory if it tends so to harm the
reputation of another as to lower him in the estimation of
the community or to deter third persons from associating or
dealing with him.”32 trial courts initially determine whether
a statement is capable of defamatory meaning, and then the
jury decides whether the words were so understood.33 Courts
make the determination in the first instance because a jury is
“‘unlikely to be neutral with respect to the content of [the]
speech,’ posing ‘a real danger of becoming an instrument for
27 See, McIntrye v. Ohio Elections Comm’n, 514 U.S. 334, 347, 115 S. Ct.
1511, 131 L. ed. 2d 426 (1995) (quoting Buckley v. Valeo, 424 U.S. 1, 96
S. Ct. 612, 46 L. ed. 2d 659 (1976)). See, also, Ky. Registry of Election
Finance v. Blevins, 57 S.W.3d 289 (ky. 2001); State v. Brookins, 380 md.
345, 844 a.2d 1162 (2004).
28 New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S. Ct. 710, 11 L.
ed. 2d 686 (1964).
29 State v. Drahota, 280 Neb. 627, 637, 788 N.W.2d 796, 804 (2010).
30 Id. at 632, 788 N.W.2d at 801.
31 New York Times Co. v. Sullivan, supra note 28.
32 Restatement (Second) of torts § 559 at 156 (1977).
33 Henry v. Halliburton, 690 S.W.2d 775 (mo. 1985); W. page keeton et al.,
prosser and keeton on the Law of torts § 111 (5th ed. 1984). See, also,
Davis v. Ross, 754 f.2d 80 (2d Cir. 1985); Worley v. OPS, 69 Or. app. 241,
686 p.2d 404 (1984); Thomas Merton Ctr. v. Rockwell Intern. Corp., 497
pa. 460, 442 a.2d 213 (1981).
424 	281 NebRaSka RepORtS

the suppression of . . . “vehement, caustic, and sometimes
unpleasan[t]”’ expression.”34
[11] 	In 	the 	context 	of 	a 	defamation 	claim, 	the 	first
amendment protects the publication of statements which can-
not be interpreted as stating actual facts, but, rather, is the opin-
ion of the author.35 Courts considering the distinction between
fact and opinion have generally determined that making the
distinction is a question of law to be decided by the trial
judge.36 “‘While courts are divided in their methods of distin-
guishing between assertions of fact and expressions of opinion,
they are universally agreed that the task is a difficult one.’”37
the Restatement (Second) of torts provides that a “defamatory
communication may consist of a statement in the form of an
opinion, but a statement of this nature is actionable only if it
implies the allegation of undisclosed defamatory facts as the
basis for the opinion.”38
[12,13] In assessing whether a statement implies a false
assertion of fact or a protected opinion, this court “looks at
the nature and full content of the communication and to the
knowledge and understanding of the audience to whom the
publication was directed.”39 Courts applying the totality of the
circumstances test in a defamation claim look to factors such
as “(1) whether the general tenor of the entire work negates
the impression that the defendant was asserting an objec-
tive fact, (2) whether the defendant used figurative or hyper-
bolic language that negates the impression, and (3) whether
34 Snyder v. Phelps, supra note 6, 131 S. Ct. at 1219 (quoting Bose Corp. v.
Consumers Union of U. S., Inc., 466 U.S. 485, 104 S. Ct. 1949, 80 L. ed.
2d 502 (1984)).
35 See Wheeler v. Nebraska State Bar Assn., 244 Neb. 786, 508 N.W.2d 917
(1993).
36 Henry v. Halliburton, supra note 33.
37 Id. at 787 (quoting Ollman v. Evans, 750 f.2d 970 (D.C. Cir. 1984)).
38 Restatement, supra note 32, § 566 at 170.
39 Wheeler v. Nebraska State Bar Assn., supra note 35, 244 Neb. at 791, 508
N.W.2d at 921.
mOatS v. RepUbLICaN paRty Of Neb. 	425
Cite as 281 Neb. 411

the statement in question is susceptible of being proved true
or false.”40
as noted above, context is important to an analysis of
whether a communication expresses a fact or an opinion:
“[L]iterary, public, and social contexts are a major determinant
of whether an ordinary reader would view an alleged defama-
tory statement as constituting fact or opinion.”41 Specifically
with respect to a public debate, one court has held that
“‘where potentially defamatory statements are published
in a public debate . . . or in another setting in which the
audience may anticipate efforts by the parties to persuade
others of their positions by use of epithets, fiery rhetoric,
or hyberbole, language which generally might be consid-
ered as statements of fact may well assume the character
of statements of opinion.’”42
We first consider the allegedly defamatory statements in
publication No. 3, which begins by asking: “‘Would you put a
shady insurance company based in the Cayman Islands ahead
of Nebraska consumers? You wouldn’t. But trial attorney Rex
Moats would . . . . How did Rex Moats mislead creditors and
the public? Rex Moats claimed in an affidavit that National
Warranty was doing financially well.’”
In examining the totality of the circumstances, we note that
this statement appeared in a political campaign brochure. It
was written to persuade voters to vote against moats through
the use of both rhetoric and hyberbole—namely that National
Warranty was “shady” and that moats would choose it over
Nebraska consumers. and the general tone of the publication
suggests that the Republican party was not making assertions
of fact and that no reasonable reader would conclude oth-
erwise. Nor are the terms “mislead” and “doing financially
well” capable of being proved true or false. these terms
40 Gardner v. Martino, 563 f.3d 981, 987 (9th Cir. 2009). See, also, Klein v.
Victor, 903 f. Supp. 1327 (e.D. mo. 1995).
41 Brennan v. Kadner, 351 Ill. app. 3d 963, 970, 814 N.e.2d 951, 958, 286
Ill. Dec. 725, 732 (2004).
42 Id.
426 	281 NebRaSka RepORtS

are instead relative to the situation, and constitute opin-
ion statements.
Given this context, we simply cannot find this statement to
be reasonably susceptible of an interpretation which implies a
false assertion of fact, but instead conclude that it constitutes
an opinion protected by the first amendment.
We turn next to publication No. 4, which was a letter or
greeting card mailing decorated with tropical artwork, includ-
ing a tiki carving. the text of the card is purportedly sent by
moats from the Cayman Islands. In this text, moats makes
comments about the great food and great weather, states that
he has a “fantastic job working for a shady insurance com-
pany,” and comments that the “tax benefits sure are great” in
the Cayman Islands. the card continues with moats’ express-
ing concern about his company’s bankruptcy and suggesting
that he may have made “misleading statements in an affidavit.”
Included on the card is a disclaimer indicating that the mailing
was paid for by the Republican party.
as with publication No. 3, we examine the totality of the
circumstances surrounding this card. It was written as if by
moats, but from the contents of the mailing, it was very clearly
not written by moats. this card includes epithets, rhetoric, and
hyberbole. the general tenor of the card suggests that it was
not meant to assert objective fact, and its statements could not
be mistaken for ones intended as truthful. and as we found
above with regard to publication No. 3, the card’s reference
to moats’ making “misleading statements” and claiming that
his company was doing “‘just fine’” are not capable of being
proved true or false, and constitute opinion statements. We
therefore conclude that this card, like publication No. 3, is also
protected speech under the first amendment.
publications issued by R epublican paRty did not
set foRth sepaRate claim foR toRt of invasion
of pRivacy by false liGht
moats also claims that each of the publications referenced
earlier in this opinion violated the tort of invasion of privacy by
false light. In his complaint, moats alleged that each of the 11
statements outlined above “were false, made knowingly or with
mOatS v. RepUbLICaN paRty Of Neb. 	427
Cite as 281 Neb. 411

reckless disregard for the truth, and were made for the purpose,
and with the effect, of placing . . . moats in a false light, to
create a false public persona and image of him.”
Section 20-204 provides:
any person, firm, or corporation which gives public-
ity to a matter concerning a natural person that places
that person before the public in a false light is subject to
liability for invasion of privacy if:
(1) the false light in which the other was placed would
be highly offensive to a reasonable person; and
(2) the actor had knowledge of or acted in reckless
disregard as to the falsity of the publicized matter and the
false light in which the other would be placed.
[14] Invasion of privacy as a common-law tort has evolved
over the years into several separate torts, one of which is the
false light privacy claim at issue here.43 We have recognized
that publications that are alleged to constitute a false light
invasion of privacy merit the same constitutional protections as
publications alleged to be defamatory.44 It has been stated that
“[i]n order to survive as a separate cause of action, a false light
claim must allege a nondefamatory statement. If the statements
alleged are defamatory, the claims would be for defamation
only, not false light privacy.”45 thus, it has been widely held
that a false light invasion of privacy claim “‘sufficiently dupli-
cative of libel’” is subsumed within the defamation claim.46
We agree with these authorities and conclude that a statement
alleged to be both defamatory and a false light invasion of
privacy is subsumed within the defamation claim and is not
separately actionable.
43 William L. prosser, Privacy, 48 Calif. L. Rev. 383 (1960).
44 See Schoneweis v. Dando, 231 Neb. 180, 435 N.W.2d 666 (1989).
45 Dworkin v. Hustler Magazine Inc., 867 f.2d 1188, 1193 n.3 (9th Cir.
1989). See Time, Inc. v. Hill, 385 U.S. 374, 87 S. Ct. 534, 17 L. ed. 2d
456 (1967).
46 See Dworkin v. Hustler Magazine, supra note 45 at 1193 n.3. See, e.g.,
Rice v. Comtek Mfg. of Oregon, Inc., 766 f. Supp. 1539 (D. Or. 1990);
Bollea v. World Championship Wrestling, 271 Ga. app. 555, 610 S.e.2d
92 (2005).
428 	281 NebRaSka RepORtS

In this case, moats alleged a false light claim which is dupli-
cative of his defamation claim with respect to each publication
except publication No. 10, and therefore the false light aspects
of his privacy claim, with the exception of publication No. 10,
are subsumed in his defamation claims. because each allegedly
defamatory publication failed to state a claim for relief under
defamation, they likewise fail to state a claim for relief for
false light invasion of privacy. We consider publication No. 10,
“Neb-015,” separately because it is alleged to be a false light
invasion of privacy, but not defamatory.
publication No. 10 is not quoted in the complaint, and the
allegation in the complaint merely suggests that it is in bad
taste. We therefore determine that nothing in the complaint
regarding publication No. 10, even under liberal notice plead-
ing standards, see Neb. Ct. R. pldg. § 6-1108(a)(2), indicates
that a claim for relief under false light invasion of privacy is
plausible or suggests that discovery will reveal evidence of a
claim regarding publication No. 10. thus, the complaint fails
to state a false light invasion of privacy claim with respect to
publication No. 10.
although our reasoning differs somewhat from that of the
district court, the district court did not err when it concluded
that moats failed to state a claim for relief based on invasion
of privacy by false light with respect to all publications. We
affirm this ruling.
CONCLUSION
the publications issued by the Republican party are not in
violation of the Cpa or the tort of invasion of privacy by false
light. Nor are the publications defamatory. We therefore affirm
the decision of the district court.
affiRmed.
wRiGht, J., not participating.
milleR-leRman, J., concurring in part, and in part dissenting.
I concur in part in the majority opinion of the court and
would affirm the district court’s grant of the pretrial motion to
dismiss the claims under Nebraska’s Consumer protection act
and the tort of invasion of privacy by false light. With respect
to the defamation claims, I concur in affirming the dismissal
mOatS v. RepUbLICaN paRty Of Neb. 	429
Cite as 281 Neb. 411

of all the claims, with the exception of allegations regarding
publications Nos. 3 and 4.
I respectfully dissent in part, and would reverse the district
court’s grant of the pretrial motion to dismiss the defama-
tion claims regarding publications Nos. 3 and 4, the latter
of which includes the statement that moats “made mislead-
ing statements in an affidavit.” the affidavit-related state-
ments impute that moats committed the specific criminal act
of making false statements under oath. See Neb. Rev. Stat.
§§ 28-915 (felony false statement under oath) and 28-915.01
(misdemeanor false statement under oath) (Reissue 2008).
even though they were made in a political campaign, such
accusations, if proved at trial to be false and made with
malice, are not constitutionally protected under the first
amendment. Upon such proof, such accusations are defama-
tory. Charges of illegal conduct by a public individual are not
opinion and, if false, are protected solely by the actual malice
test. Rinaldi v Holt, Rinehart, 42 N.y.2d 369, 366 N.e.2d
1299, 397 N.y.S.2d 943 (1977). Regardless of the ultimate
success of these defamation claims at trial, I conclude at this
early stage of this case that they state a claim for relief and
because they are plausible, should have survived the pretrial
motion to dismiss.
as an initial matter, I am aware of the rough-and-tumble
nature 	of 	political 	campaigns 	and 	that 	under 	the 	first
amendment, “debate on public issues should be uninhibited,
robust, and wide-open, and that it may well include vehe-
ment, caustic, and sometimes unpleasantly sharp attacks on
government and public officials.” New York Times Co. v.
Sullivan, 376 U.S. 254, 270, 84 S. Ct. 710, 11 L. ed. 2d 686
(1964). We have recognized the foregoing, but have also noted
that the first amendment’s “protections are not absolute.”
State v. Drahota, 280 Neb. 627, 632, 788 N.W.2d 796, 801
(2010). It is well settled that there is no constitutional right
to espouse false assertions of facts, even against a public fig-
ure in the course of public disclosure. New York Times Co. v.
Sullivan, supra.
In the present case, I emphasize that we must view moats’
claims of defamation in the procedural posture of this case.
430 	281 NebRaSka RepORtS

this case was dismissed based on a pretrial motion to dismiss
in which it was claimed that the complaint failed to plausibly
state a claim for relief and could not be proved meritori-
ous at trial. this case is at the early pleading stage. We have
recently explained the new standard that this court has adopted
in assessing when a complaint survives a motion to dismiss
in Doe v. Board of Regents, 280 Neb. 492, 788 N.W.2d 264
(2010). In Doe, we explained that to prevail against a motion
to dismiss for failure to state a claim, a plaintiff must allege
sufficient facts, accepted as true, to state a claim to relief that
is plausible on its face. In cases in which a plaintiff does not or
cannot allege specific facts showing a necessary element, the
factual allegations, taken as true, are nonetheless plausible if
they suggest the existence of the element and raise a reasonable
expectation that discovery will reveal evidence of the element
or claim. Id.
keeping these principles in mind, I have reviewed each of
the 10 publications. I would conclude that given the words
themselves, the context of a political campaign, the first
amendment protections afforded political speech, and the con-
text of how information is disseminated in the course of a
political campaign, the only publications that are plausibly def-
amation per quod that can survive the motion to dismiss are the
portions of publications Nos. 3 and 4 which allege that moats
made misleading statements in an affidavit and impute that he
committed a crime. at this early stage of the case, the task with
respect to the misleading affidavit publications is to assess the
viability of the complaint without the benefit of examining the
affidavit, which is not yet in the record.
publication No. 3 stated: “‘How did Rex Moats mislead
creditors and the public? Rex Moats claimed in an affidavit
that National Warranty was doing financially well.’” In his
complaint with respect to publication No. 3, moats states that
he did not claim in an affidavit that National Warranty was
doing financially well, only to be proved false later that the
company “‘went bankrupt.’” moats alleged that “[t]o the con-
trary, National Warranty sought, and entered into, insolvency
proceedings because . . . moats reported its condition to regula-
tory officials in the Cayman Islands.”
mOatS v. RepUbLICaN paRty Of Neb. 	431
Cite as 281 Neb. 411

publication No. 4, a fictitious letter or greeting card purport-
edly authored by moats, stated: “also, it looks like I have made
misleading statements in an affidavit. evidently, I claimed that
my company is doing ‘just fine,’ but then declared bankruptcy
two weeks later.” In his complaint with respect to publication
No. 4 and its reference to “misleading statements in an affi-
davit,” moats again alleged that he “did not make misleading
statements in an affidavit as outlined above.”
moats urges on appeal and I agree that the two statements
to the effect that moats made misleading statements in an
affidavit not only place his reputation in disrepute, but more
significantly impute commission of a crime and are susceptible
of defamatory meaning. See §§ 28-915 (felony false statement
under oath) and 28-915.01 (misdemeanor false statement under
oath). See, also, Neb. Rev. Stat. § 7-106 (Reissue 2007) (pro-
viding for disbarment of attorney for deceit to court, judge,
or party); State ex rel. NSBA v. Zakrzewski, 252 Neb. 40, 560
N.W.2d 150 (1997) (suspending attorney from practice of law
based in part on false statements in affidavit). even given the
nature of the two affidavit-related publications as imputing
commission of a crime, I am mindful that to establish their
defamatory character and recover damages, moats must also
establish, inter alia, that the statements were false and were
made with actual malice and that he suffered special damages.
See, New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct.
710, 11 L. ed. 2d 686 (1964); Hoch v. Prokop, 244 Neb. 443,
507 N.W.2d 626 (1993); Woodcock v. Journal Pub. Co., Inc.,
230 Conn. 525, 646 a.2d 92 (1994). this he may or may not
be able to do.
the essence of moats’ defamation per quod claim regarding
the affidavit-related statements is that the statements falsely
impute that he committed the specific crime of making a false
statement under oath. See §§ 28-915 and 28-915.01. Regarding
public officials, it has been stated that “[n]o first amendment
protection enfolds false charges of criminal behavior,” Rinaldi
v Holt, Rinehart, 42 N.y.2d 369, 382, 366 N.e.2d 1299, 1307,
397 N.y.S.2d 943, 951 (1977), and “‘a charge of criminal
conduct . . . can never be irrelevant to . . . a candidate’s fit-
ness for office for purposes of application of the “knowing
432 	281 NebRaSka RepORtS

falsehood or reckless diregard” rule of New York Times Co. v.
Sullivan,’” Cianci v. New Times Pub. Co., 639 f.2d 54, 59 (2d
Cir. 1980). Contemporary candidates are evidently expected
to suffer insults, but under accepted jurisprudence, they are
not expected to suffer false charges of criminal conduct with-
out recourse.
as a preliminary matter, I reject the suggestion that publica-
tion No. 4 cannot be actionable because it was printed on an
island-themed card and is therefore protected as parody or sat-
ire. although the medium containing publication No. 4 is more
colorful than a conventional campaign flyer, I do not accept the
argument that the statement that moats “made misleading state-
ments in an affidavit” is immunized simply by its appearance
on fanciful stationery. Compare, Hustler Magazine v. Falwell,
485 U.S. 46, 108 S. Ct. 876, 99 L. ed. 2d 41 (1988); Garvelink
v. Detroit News, 206 mich. app. 604, 522 N.W.2d 883 (1994)
(parodies, political cartoons, and satires are generally entitled
to protection). further, although publication No. 4 is purport-
edly from moats, I do not think a reasonable reader would
adopt the conceit that the publication was actually sent by the
candidate himself. Instead, publication No. 4 clearly states the
factual assertion of the author that moats “made misleading
statements in an affidavit.”
the first task regarding the affidavit-related statements in
publications Nos. 3 and 4 is to inquire whether the statements
are reasonably susceptible of a defamatory connotation so as
to warrant submission to a fact finder to determine if in fact
the defamatory connotation was conveyed. See Cianci v. New
Times Pub. Co., supra. the statements are considered in the
context in which they appear, and the words taken as they are
commonly understood. See id. to perform this task, I would
consider the words “misleading” and “affidavit.”
I reject the suggestion that the word “misleading” used
to describe an “affidavit” is ambiguous and is incapable of
defamatory connotation. It has been stated that the plain
meaning of the word “misleading” is to cause to have a
false impression. Concordia Theological Seminary, Inc. v.
Hendry, No. 1:05-CV-285-tS, 2006 WL 1408385 (N.D. Ind.
may 17, 2006) (unpublished opinion). See, similarly, merriam
mOatS v. RepUbLICaN paRty Of Neb. 	433
Cite as 281 Neb. 411

Webster’s Dictionary of Law 315 (1996). more particularly,
the federal obstruction of justice criminal statute provides
that “misleading conduct” includes making a false statement.
18 U.S.C. § 1515(a)(3) (2006). thus, “misleading” can con-
note falsity and a “misleading statement” can connote a false
statement.
an affidavit is a legal instrument, and “affidavit” is a word
of art. “affidavit” is defined in Nebraska statutes as follows:
“an affidavit is a written declaration under oath, made with-
out notice to the adverse party.” Neb. Rev. Stat. § 25-1241
(Reissue 2008). an affidavit has been described as a verified
pleading that sets forth evidentiary facts within the personal
knowledge of the verifying signatory. Mata v. State, 124
Idaho 588, 861 p.2d 1253 (Idaho app. 1993); 3 am. Jur. 2d
Affidavits § 8 (2002). Statements in affidavits are not casual
musings but must set forth facts asserted to be true and show
affirmatively that the affiant obtained personal knowledge of
those facts. 3 am. Jur. 2d, supra. We have stressed the legal
significance of an affidavit and the importance that the state-
ments in an affidavit be made under oath. See, e.g., Moyer v.
Nebraska Dept. of Motor Vehicles, 275 Neb. 688, 747 N.W.2d
924 (2008). further, we have stated that “[d]eliberate false tes-
timony in a court proceeding tends to destroy the integrity of
the judicial system and cannot be tolerated.” State v. McCaslin,
240 Neb. 482, 493, 482 N.W.2d 558, 566 (1992). thus, an
“affidavit” is a legally significant statement made “under oath.”
See § 25-1241. I would conclude that the use of the word
“misleading” proximate to the word “affidavit” is reasonably
susceptible of the defamatory connotation that moats commit-
ted a crime of false statement under oath.
Next I would consider whether the affidavit-related state-
ments were protected as an expression of opinion. Contrary
to the majority’s view, I would not conclude that the affidavit-
related statements are mere opinion. In Cianci v. New Times
Pub. Co., 639 f.2d 54 (2d Cir. 1980), the Court of appeals
for the Second Circuit provided an often-quoted summary of
the law in this area, which I suggest we adopt. to distinguish
between statements of fact and opinion with respect to public
figures, the controlling principle is
434 	281 NebRaSka RepORtS

(1) that a pejorative statement of opinion concerning a
public figure generally is constitutionally protected, quite
apart from Sullivan, no matter how vigorously expressed;
(2) that this principle applies even when the statement
includes a term which could refer to criminal conduct if
the term could not reasonably be so understood in con-
text; but (3) that the principle does not cover a charge
which could reasonably be understood as imputing spe-
cific criminal or other wrongful acts.
639 f.2d at 64. applying the foregoing to the instant case,
I would conclude that the affidavit-related statements com-
plained of could reasonably be understood as imputing a spe-
cific criminal act by moats; thus, the statements are assertions
of fact, not opinion, and are actionable.
Numerous cases are reported which consider whether com-
ments made against political figures suggesting a crime are
actionable. for the most part, where the statement is found to
be opinion, and therefore, not actionable, the statement sug-
gesting a crime is described by the courts as hyperbole or the
criminal allegation has been used in a figurative sense. See,
e.g., Greenbelt Pub. Assn. v. Bresler, 398 U.S. 6, 14, 90 S.
Ct. 1537, 26 L. ed. 2d 6 (1970); Rinaldi v Holt, Rinehart,
42 N.y.2d 369, 381, 366 N.e.2d 1299, 1307, 397 N.y.S.2d
943, 951 (1977) (in advocating for judge’s removal, state-
ments claiming judge was “incompetent” are opinion, but
statement claiming judge was “‘probably corrupt’” was fact).
Cases involving nonpolitical figures are to the same effect.
Lauderback v. American Broadcasting Companies, 741 f.2d
193, 195 (8th Cir. 1984) (suggestion that insurance agent was
“a crook and a liar” did not suggest specific criminal conduct);
Henry v. Halliburton, 690 S.W.2d 775, 778 (mo. 1985) (state-
ments that insurance agent is “‘a fraud and a twister’” did not
suggest that agent committed specific crime).
In the instant case, the statements in publications Nos. 3 and
4 were not merely loose or figurative, nor were they limited to
the suggestion that the publisher simply disagreed with moats.
the challenged statements suggest that moats committed a
specific crime as well as that he is personally dishonest. See
Gregory v. McDonnell Douglas Corp., 17 Cal. 3d 596, 552
mOatS v. RepUbLICaN paRty Of Neb. 	435
Cite as 281 Neb. 411

p.2d 425, 131 Cal. Rptr. 641 (1976). I would conclude that the
ordinary and average reader could likely understand the use of
the affidavit-related words, in the context of the entire publi-
cation, as meaning that moats had committed illegal actions.
Such accusations are not constitutionally protected, and moats’
claim that such accusations are defamatory is entirely plau-
sible. Charges of illegal conduct by a public individual are not
opinion and, if false, are protected solely by the actual malice
test. Rinaldi v Holt, Rinehart, supra.
the potentially defamatory meaning of the affidavit-related
statements in publications Nos. 3 and 4 can be appreciated
based on the words used in the publications when combined
with allegations in moats’ complaint. Notwithstanding that
the affidavit-related statements were published in the context
of a political campaign and giving due weight to the first
amendment concerns, I believe that moats has alleged suffi-
cient facts with respect to these two statements, when taken as
true, to state a claim for relief of defamation per quod that is
plausible on its face.
It is important to stress that my conclusion regarding the
defamatory potential of portions of publications Nos. 3 and
4 is dictated by the fact that this lawsuit is at the early stage
of litigation, and I, and this court, must assess the plausibility
of the allegation of defamation based on the allegations in the
complaint. See Doe v. Board of Regents, 280 Neb. 492, 788
N.W.2d 264 (2010). In this regard, I reiterate that the affidavit
in question has not yet been produced for review by the trial
court or this court in the limited context of consideration of
the pretrial motion to dismiss. because the affidavit is not
part of the record, I make no comment regarding the ultimate
merits at trial of moats’ defamation allegations concerning
making a misleading affidavit referred to in publications Nos.
3 and 4.
I agree with the majority opinion except with respect to
the decision to affirm the pretrial dismissal of the defamation
claims regarding publications Nos. 3 and 4. moats alleges he
was defamed in publications Nos. 3 and 4, the latter of which
states that moats “made misleading statements in an affidavit.”
this statement imputes that moats committed the specific
436 	281 NebRaSka RepORtS

criminal act of making false statements under oath. even
in rough-and-tumble political discourse, a charge of specific
illegal conduct by a public individual, if false and made with
actual malice, is not protected by the first amendment and is
defamatory. Whether these accusations are false and made with
malice can only be determined by examining evidence at trial.
Neither the trial court nor this court has seen the affidavit. I
would conclude that the district court erred when it determined
prematurely that the affidavit-related allegations in publications
Nos. 3 and 4 could not succeed at trial and therefore dismissed
these claims at the pretrial stage. to this limited extent, I would
reverse the district court’s order, permit the case to proceed
solely as to the defamation claims regarding publications Nos.
3 and 4, and await the evidence.
betty vandenbeRG, appellee , v. butleR county
boaRd of equalization, appellant.
796 N.W.2d 580
filed april 28, 2011. 	No. S-10-783.
1. Taxation: Judgments: Appeal and Error. appellate courts review decisions
rendered by the tax equalization and Review Commission for errors appearing
on the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors appearing
on the record, an appellate court’s inquiry is whether the decision conforms to
the law, is supported by competent evidence, and is neither arbitrary, capricious,
nor unreasonable.
3. Taxation: Appeal and Error. Questions of law arising during appellate review
of tax equalization and Review Commission decisions are reviewed de novo on
the record.
appeal from the tax equalization and Review Commission.
Reversed and remanded.
Julie L. Reiter, butler County attorney, for appellant.
No appearance for appellee.
heavican, c.J., connolly, G eRRaRd, stephan, mccoRmack ,
and milleR-leRman, JJ.
VaNDeNbeRG v. bUtLeR COUNty bD. Of eQUaL. 	437
Cite as 281 Neb. 437