Pipkin v. Acumen

2020 UT App 111
THE UTAH COURT OF APPEALS
LYNDA PIPKIN , JANICE LEGLER , BENJAMIN THOMPSON , R OBERT
M CENTEE, ELIZABETH C ARLIN , A RTURO M ORALES LLAN ,
AND PAUL C OZZENS,
Appellants,
v.
DARYL A CUMEN ,
Appellee.
Opinion
No. 20190378-CA
Filed July 30, 2020
Second District Court, Farmington Department
The Honorable David M. Connors
No. 180700948
Seth D. Needs, Attorney for Appellants
Todd D. Weiler, Attorney for Appellee
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and R YAN M. HARRIS
concurred.
ORME, Judge:
¶1 	During the period relevant to this lawsuit, Lynda Pipkin,
Janice Legler, Benjamin Thompson, Robert McEntee, Elizabeth
Carlin, Arturo Morales Llan, and Paul Cozzens (collectively,
Plaintiffs) were members or former members of the State Central
Committee (SCC), the governing body of the Utah Republican
Party (URP). After the SCC adopted a controversial bylaw, Daryl
Acumen, who strongly opposed it, sent emails to URP members
and 	posted 	on 	social 	media 	challenging 	the 	bylaw 	and
suggesting its illegality. In these communications, Acumen also
alleged that Plaintiffs either supported the bylaw or voted in its

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favor. Plaintiffs filed a complaint against Acumen claiming,
among other things, defamation and electronic communications
harassment. The district court granted summary judgment in
Acumen’s favor on all their claims, and we affirm.
BACKGROUND1
¶2 	This case takes place within the larger context of the
controversy surrounding the creation of a signature path to the
Republican primary ballot—a hotly debated issue within the
URP. To make a long story short,2 in 2014 the Legislature passed
SB54 which, when enacted, created a signature-gathering path
for candidates to the primary election ballot as an alternative to
state nominating conventions and prevented any political party
from restricting access to its primary ballot solely to candidates
who won nomination through the convention process. See Utah
Code Ann. § 20A-9-101(12)(c) (LexisNexis 2019) (stating that a
qualified 	political 	party 	must 	allow 	members 	“to 	seek 	the
registered political party’s nomination for any elective office by
the member choosing to seek the nomination by either or both
. . . (i) seeking the nomination through the registered political
party’s convention process . . . or (ii) seeking the nomination by
collecting signatures”); Utah Republican Party v. Cox, 2016 UT 17,
¶ 12, 373 P.3d 1286 (per curiam) (concluding that the statute
1. “In reviewing a district court’s grant of summary judgment,
we view the facts and all reasonable inferences drawn therefrom
in the light most favorable to the nonmoving party and recite the
facts accordingly.” Ockey v. Club Jam, 2014 UT App 126, ¶ 2 n.2,
328 P.3d 880 (quotation simplified).
2. For a more detailed summary of the events surrounding this
public debate, see Utah Republican Party v. Cox, 892 F.3d 1066,
1072–75 (10th Cir. 2018).

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“requires that, to be a [qualified political party], a registered
political 	party 	must 	permit 	its 	members 	to 	seek 	access 	to
nomination 	for 	electoral 	office 	by 	either 	or 	both 	the
signature-gathering 	method 	or 	the 	convention 	method”).
Although 	the 	Legislature 	was 	“comprised 	of 	overwhelming
Republican majorities in both the State House and State Senate,”
see Utah Republican Party v. Cox, 892 F.3d 1066, 1073 (10th Cir.
2018), the URP opposed this legislation.
¶3 	On February 24, 2018, after the URP lost two lawsuits
challenging SB54’s signature provision—and while the appeal
from the second suit was pending before the United States Court
of Appeals for the Tenth Circuit—the SCC adopted the relevant
bylaw (the Bylaw). As the district court stated, “The gist of the
Bylaw was that Republican candidates who chose to seek the
party’s 	nomination 	through 	the 	signature 	path 	allowed 	by
[SB54] would not be allowed to present themselves on the ballot
as the Republican party’s nominees.”3 The parties agree that
3. Oddly, the text of the Bylaw does not appear in the record on
appeal. A news article in the record, however, quotes the Bylaw
as stating,
in 	part, 	that 	candidates 	in 	the 	1st 	and 	2nd
congressional districts “who attempt to qualify for
the 	primary 	ballot 	through 	any 	method 	not
explicitly defined in the Utah Republican Party
Constitution and these bylaws will automatically
forfeit their party membership in conjunction with
the 	state 	designated 	candidate 	filing-period
deadline.”
See 	Dennis 	Romboy, 	Surprise 	GOP 	Bylaw 	Change 	Targets
Candidates 	Who 	Gather 	Signatures, 	Deseret 	News 	(Feb. 	26,
2018), https://www.deseret.com/2018/2/26/20640616/surprise-gop
-bylaw-change-targets-candidates-who-gather-signatures [https:
//perma.cc/C9DZ-839W].

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several 	local 	media 	outlets 	suggested 	that 	the 	Bylaw 	was
possibly illegal.
¶4 	Although no official record was made of the vote, and the
total number of votes in favor of the Bylaw was unclear, the SCC
passed it by a two-thirds majority vote of members who were
present at the meeting called to consider the Bylaw.4 Plaintiffs
are members or former members of the SCC who purportedly
either voted for or supported the Bylaw.5
¶5 	Acumen, a former SCC member and the chair of the Utah
Black Republican Assembly, vehemently opposed the Bylaw. On
March 5, 2018, he sent an email with the subject “Keep the GOP
on the ballot!” to URP members. With the exception of links to
certain news articles that Acumen included, the email stated as
follows:
An Important Message
Read if you want to keep the GOP on the ballot
Hello [name],
As you may have heard, on February 24th a small
group of delegates to the [SCC] voted to enact a
bylaw that currently threatens to disqualify the
[URP] from the 2018 General Election ballot. The
4. Local media reported that “[a]bout 80 of the committee’s 180
members attended [the February 24, 2018 meeting], but fewer
than that were there to vote on the [Bylaw].” Id.
5. Plaintiffs never expressly acknowledged or denied supporting
or voting in favor of the Bylaw. Instead, they stated that Acumen
“could not have known who voted for the Bylaw because the
votes were not made an official record.”

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bylaw 	states 	that 	Republican 	candidates 	who
choose to seek our party’s nomination through the
signature path allowed by current election law will
be “kicked out” of the Republican Party. Because
the 	bylaw 	violates 	the 	rules 	for 	a 	“Qualified
Political Party” (QPP) under Utah state law, the
[URP] (along with all our Republican candidates)
will almost certainly be removed from the ballot in
November as a consequence . . . this is not a joke!
The move by a group known as the #GangOf51[6]
was taken during a “special” meeting of the SCC
called with minimal notice in the hope that few
regular 	committee 	members 	would 	be 	able 	to
attend. Davis County Republican Party Secretary
Brady Jugler proposed the bylaw intentionally to
create a legal standoff with the Lt. Governor’s
office and to place the party’s QPP status at risk.
These actions violate the [URP] platform, which
states “We support the ‘Rule of Law’ and believe
in upholding the law of the land.”
Because this stunt flouts current election law, it
constitutes a class B misdemeanor under section
6. Acumen at times referred to the “Gang of 51.” The origin of
the phrase is not entirely clear from the record. In an affidavit,
Acumen asserted that he borrowed the term from local media
coverage and explained that “[t]he ‘51’ comes from the number
of members who called for a special SCC meeting in December
2017.” But in its summary judgment order, the district court
stated that “[b]oth parties acknowledge [that the term] refer[s] to
the majority of SCC members who voted in favor of the Bylaw.”
In any event, Acumen numbered Plaintiffs among the members
of the “Gang of 51.”

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20A of Utah State Code, punishable by up to six (6)
months in jail and a $1,000 fine.
Because the bylaw initially applies only to the 1st
and 2 nd Congressional races (excluding the 3rd and
4 th ), it violates the 14th Amendment to the United
States 	Constitution, 	which 	requires 	the 	equal
application 	of 	election 	laws. 	The 	bylaw 	also
therefore runs afoul of the National Republican
Party 	Platform 	which 	urges 	us 	to 	uphold 	the
constitution 	and 	proclaims 	that 	“. 	. 	. 	the
Constitution 	was 	written 	not 	as 	a 	flexible
document, but as our enduring covenant.”
The Utah State Legislature is currently considering
HB485 which would seek to repair the damage by
directing 	the 	Lt. 	Governor’s 	office 	to 	ignore
mid-election bylaw changes by political parties,
however the Utah Democratic Party has already
signaled that it will challenge this guidance in
court and will seek to force the Lt. Governor to
recognize 	the 	bylaw 	as 	written 	[and] 	thus
disqualify every Republican from the ballot in
2018.
The [URP] has three (3) functions:
• 	Recruit Republicans
• 	Drive Republicans to the polls
• 	Elect Republicans
While 	certain 	extremists 	within 	our 	party 	are
under the delusion that the primary focus of our
party should be to fight against a signature path to
the ballot, the vast majority of Republican voters in

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Utah and every single Republican leader in the
United States disagrees.
By jeopardizing our place on the 2018 ballot, our
SCC 	representatives 	have 	acted 	illegally,
irresponsibly, 	recklessly, 	and 	against 	our
interests. They have violated our trust and I believe
they should be held accountable.
If you agree with me, please contact the SCC
members responsible for this action by sending an
email expressing your thoughts and opinions on
the 	matter 	to 	GangOf51@UtahGOP.org.
Alternatively you can simply reply to this email
and 	your 	response 	will 	be 	directed 	to 	those
responsible.
Thank you for your attention.
The bottom of the email also contained an “Unsubscribe here”
link.
¶6 	Two weeks later, on March 19, 2018, Acumen sent out a
similar email with the subject line “Important Information for
Caucus Night.” This email contained a link to a website that
listed 	the 	alleged 	members 	of 	the 	Gang 	of 	51, 	including
Plaintiffs. Acumen also posted on social media, “If you want to
let the #GangOf51 know how you feel about their illegal activity,
you can email them all . . . . I encourage everyone reading this to
send them a quick note letting them know exactly what you
think!”
¶7 	In an affidavit, Acumen stated that he “sent a total of
67,660 emails to party members and only 12,870 of them were
opened[,] 	. 	. 	. 	generat[ing] 	about 	600 	responses 	that 	were

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redirected to Plaintiffs and other members of the ‘Gang of 51.’”
This statement was essentially undisputed by Plaintiffs.7
¶8 	In September 2018, Plaintiffs filed their lawsuit against
Acumen, 	asserting 	claims 	of 	electronic 	communications
harassment, defamation, false light, and intentional infliction of
emotional 	distress 	(IIED). 	Acumen 	moved 	to 	dismiss 	their
complaint. Following oral argument, the district court converted
Acumen’s 	motion 	to 	dismiss 	into 	a 	motion 	for 	summary
judgment on the ground that Acumen’s motion and Plaintiffs’
reply memorandum raised “matters outside the pleading.” See
Utah R. Civ. P. 12(b) (“If . . . matters outside the pleading are
presented to and not excluded by the court, the motion shall be
treated as one for summary judgment[.]”).
¶9 	After 	providing 	the 	parties 	with 	a 	“reasonable
opportunity to present all material made pertinent to such a
motion,” id., the court granted summary judgment in Acumen’s
favor. 	The 	court 	first 	addressed 	Plaintiffs’ 	electronic
7. Pipkin stated in her affidavit that Acumen’s “actions caused
[her] 	and 	the 	other 	Plaintiffs 	to 	receive 	hundreds, 	if 	not
thousands, of emails over a several day period from individuals
responding to [Acumen’s] . . . emails.” As a result, Pipkin
claimed that their “email systems were overloaded and [they]
were effectively unable to use [their] email or conduct [their]
business as normal.” She also stated that Acumen “ignored
[their] requests to stop with the emails.” The district court,
however, did not credit these statements and noted that “[g]iven
the[] very general responses by [Pipkin to Acumen’s affidavit],
for purposes of its review of the present motion [for summary
judgment,] the Court considers the numbers asserted by . . .
Acumen (67,660 email recipients, 12,870 emails opened, and 600
responses directed to Plaintiffs) to not be subject to genuine
dispute.”

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communications 	harassment 	claim, 	noting 	that 	“[t]he 	600
responses that were directed to the Plaintiffs came from their
constituents, not from . . . Acumen.” But “[e]ven if all 600
responses were copied to every member of the Plaintiff group,
which is unclear,” the court “conclude[d], as a matter of law, that
[Acumen’s] action in sending his email to Plaintiffs’ constituents
was not intended to, and did not actually, ‘cause[] disruption,
jamming, or overload of an electronic communication system.’”
See 	Utah 	Code 	Ann. 	§ 	76-9-201(2)(d) 	(LexisNexis 	2017).
Furthermore, the court concluded that the subject matter of
Acumen’s 	email 	communications 	“falls 	squarely 	within 	the
statutory exception for communications made for legitimate
business purposes.” See id. § 76-9-201(5)(b).
¶10 	Addressing Plaintiffs’ claims for defamation, false light,
and IIED, the court noted that the claims “all rely fundamentally
on 	Plaintiffs’ 	assertion 	that 	[Acumen] 	accused 	Plaintiffs 	of
committing a crime by voting for the Bylaw.” It concluded that
those claims failed as a matter of law because Acumen “at most
. . . asserted that the SCC action of adopting the contested Bylaw
would be a Class B misdemeanor violation of a law prohibiting
interference with the electoral process,” and he did not “assert
that any individual plaintiff violated any criminal law.” Thus,
although the court “hasten[ed] to 	indicate that it does not
condone the statements made by [Acumen], particularly the
implication that there may have been something ‘illegal’ going
on,” 	it 	dismissed 	Plaintiffs’ 	complaint 	on 	the 	ground 	that
Acumen’s emails and social media post “were not actionable.”
¶11 	Plaintiffs appeal.
ISSUES AND STANDARDS OF REVIEW
¶12 	Plaintiffs challenge the district court’s grant of summary
judgment in favor of Acumen on their defamation, false light,

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IIED, 	and 	electronic 	communications 	harassment 	claims.
Generally, “we review a trial 	court’s legal conclusions and
ultimate grant or denial of summary judgment for correctness,
viewing the facts and all reasonable inferences drawn therefrom
in the light most favorable to the nonmoving party,” and we
apply 	this 	standard 	to 	Plaintiffs’ 	electronic 	communications
harassment claim. Heartwood Home Health & Hospice LLC v.
Huber, 	2020 	UT 	App 	13, 	¶ 	11, 	459 	P.3d 	1060 	(quotation
simplified).
¶13 	But 	“the 	First 	Amendment 	demands 	a 	subtle
although significant 	variation 	in 	the 	treatment 	of 	inferences
drawn 	from 	undisputed 	facts” 	for 	Plaintiffs’ 	defamation,
false light, and IIED claims. See Jacob v. Bezzant, 2009 UT 37,
¶ 18, 212 	P.3d 	535 	(quotation 	simplified). 	See 	also 	id. 	¶ 	21
(“A false 	light 	claim 	is 	closely 	allied 	with 	an 	action 	for
defamation, 	and 	the 	same 	considerations 	apply 	to 	each.”)
(quotation simplified); Davidson v. Baird, 2019 UT App 8, ¶ 57,
438 P.3d 928 (“Where an [IIED] claim is based on the same
facts as a claim for defamation, appropriate concern for the
First Amendment rights of the parties must be considered.”)
(quotation 	simplified). 	“To 	accommodate 	the 	respect 	we
accord its protections of speech, the First Amendment’s presence
merits altering our customary rules of review by denying a
nonmoving party the benefit of a favorable interpretation of
factual 	inferences.” 	Bezzant, 	2009 	UT 	37, 	¶ 18 	(quotation
simplified). See Cox v. Hatch, 761 P.2d 556, 561 (Utah 1988)
(stating 	that 	the 	First 	Amendment 	favors 	“disposing 	of
[defamation] cases on motion and at an early stage when it
appears that a reasonable jury could not find for the plaintiffs”).
Accordingly, whether a challenged statement is susceptible to a
defamatory interpretation is a question of law that we consider
de 	novo 	without 	“indulging 	inferences 	in 	favor 	of 	the
nonmoving party.” O’Connor v. Burningham, 2007 UT 58, ¶ 27,
165 P.3d 1214.

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ANALYSIS
¶14 	Summary judgment is appropriate when (1) “there is no
genuine dispute as to any material fact” and (2) “the moving
party is entitled to judgment as a matter of law.” Utah R. Civ. P.
56(a). Because Plaintiffs do not challenge the district court’s
ruling on the first prong,8 we limit our review to whether
Acumen was “entitled to judgment as a matter of law” on each
of Plaintiffs’ claims.
I. Defamation
¶15 	“Defamation 	is the 	act 	of 	harming 	the 	reputation 	of
another by making a false statement to a third person.”9 Jensen v.
8. 	Concerning 	their 	electronic 	communications 	harassment
claim, Plaintiffs assert that there is a factual dispute as to
whether the 600 emails they received overloaded their email
systems. The district court concluded, “as a matter of law,” that
the emails “did not actually ‘cause disruption, jamming, or
overload of an electronic communication system.’” And in any
event, 	because 	we 	conclude 	that 	the 	“legitimate 	business
purpose” exemption applies to this case, this alleged factual
dispute is immaterial to our resolution of the issue. See infra
section II.
9. Defamation encompasses both libel and slander, which are
distinguished 	by 	the 	manner 	of 	an 	actionable 	statement’s
publication. Jensen v. Sawyers, 2005 UT 81, ¶ 33 n.6, 130 P.3d 325.
“Slander consists of the publication of defamatory matter by
spoken 	words, 	transitory 	gestures 	or 	by 	any 	form 	of
communication other than libel. Libel consists of the publication
of defamatory matter by written or printed words in physical
form or by any other form of communication that has the
potentially harmful qualities characteristic of written or printed
(continued…)

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Sawyers, 2005 UT 81, ¶ 35, 130 P.3d 325. See West v. Thompson
Newspapers, 872 P.2d 999, 1008 (Utah 1994) (“At its core, an
action for defamation is intended to protect an individual’s
interest in maintaining a good reputation.”). A false statement
harms 	an 	individual’s 	reputation 	if 	it 	“impeaches 	[the]
individual’s honesty, integrity, virtue, or reputation and thereby
exposes the individual to public hatred, contempt, or ridicule.”
West, 872 P.2d at 1008. But the First Amendment, which “was
fashioned 	to 	assure unfettered 	interchange 	of 	ideas for the
bringing about of political and social changes desired by the
people,” New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964)
(quotation simplified), significantly limits the tort, see Jensen,
2005 UT 81, ¶ 50 (“Defamation claims always reside in the
shadow of the First 	Amendment.”). Over time, the tension
between the First Amendment and laws designed to protect
individual reputation has resulted in the development of “a
considerable 	assortment 	of 	defenses, 	privileges, 	heightened
burdens of proof, and particularized standards of review.” Id.
¶16 	To prevail on a claim of defamation, a plaintiff must show
that “(1) the defendant published the statements [in print or
orally] concerning [the plaintiff]; (2) the statements were false;[10]
(…continued)
words.” Id. (quotation simplified). See also Utah Code Ann.
§ 45-2-2(1)–(2) (LexisNexis 2018) (defining libel as “a malicious
defamation, expressed either by printing or by signs or pictures
or the like,” and slander as “any libel communicated by spoken
words”).
10. Falsity is usually presumed, and truth is an affirmative
defense that the defendant bears the burden of proving to defeat
the claim on this basis. Davidson v. Baird, 2019 UT App 8, ¶ 25
n.3, 438 P.3d 928. “But where the plaintiff is a public figure or the
statement involves a matter of public concern, it is the plaintiff
(continued…)

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(3) 	the 	statements 	were 	not 	subject 	to 	privilege; 	(4) 	the
statements were published with the requisite degree of fault; and
(5) the statements resulted in damages.” DeBry v. Godbe, 1999 UT
111, ¶ 8, 992 P.2d 979. See West, 872 P.2d at 1007–08. But before
the matter may proceed to the trier of fact, the court must
initially determine whether, as a matter of law, the challenged
statement “is capable of conveying a defamatory message.” Cox
v. 	Hatch, 	761 	P.2d 	556, 	561 	(Utah 	1988). 	In 	making 	this
determination, a court cannot limit its analysis to isolated words
or sentences. Instead, it “must weigh competing definitions and
make sense of context” without “indulging inferences in favor of
the nonmoving party,” O’Connor v. Burningham, 2007 UT 58,
¶ 27, 165 P.3d 1214, and decide whether the statement tends “to
injure [the plaintiff’s] reputation in the eyes of its audience,”
West, 872 P.2d at 1008.
¶17 	Plaintiffs 	assert, 	with 	our 	emphasis, 	that 	Acumen
“accused the Gang of 51 of acting criminally for voting for the
(…continued)
who must shoulder the burden in his case-in-chief of proving the
falsity of the challenged statement.” Id. (quotation simplified).
Here, Plaintiffs contend that they were private figures and not
public 	officials 	or 	public 	figures. 	We 	do 	not 	address 	this
particular issue because the Bylaw, which expressly governed a
political candidate’s ability to be listed on a ballot as a member
of a major political party, is unquestionably a matter of public
concern. Cf. Wayment v. Clear Channel Broad., Inc., 2005 UT 25,
¶ 35, 116 P.3d 271 (“If the issue was being debated publicly and
if 	it 	had 	foreseeable 	and 	substantial 	ramifications 	for
nonparticipants, 	it 	was 	a 	public 	controversy.”) 	(quotation
simplified). 	In 	any 	event, 	we 	assume 	that 	the 	challenged
statements were false and do not base our decision on this
prong. See infra ¶ 17.

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Bylaw.”11 In support of this contention, they quote Acumen’s
emails in which he “stated that the Gang of 51’s actions or ‘stunt
flouts current election law, it constitutes a class B misdemeanor
under section 20A of Utah State Code, punishable by up to six
(6) months in jail and a $1,000 fine,’” and that “the ‘SCC
representatives have acted illegally, irresponsibly, recklessly,
and against our interests.’” They also point to a social media post
in which Acumen stated, “If you want to, let the #GangOf51
know how you feel about their illegal activity[.]” We assume,
without deciding, that the challenged statements were false. But
having carefully considered the context in which Acumen sent
the emails and posted on social media, and the statements
contained therein, we conclude that the challenged statements
were not susceptible to defamatory interpretation.
¶18 	Acumen’s 	emails 	and 	social 	media 	post 	were
unquestionably political speech, which “enjoys the broadest
protection under the First Amendment.” See Jacob v. Bezzant,
2009 UT 37, ¶ 29, 212 P.3d 535. See also Sullivan, 376 U.S. at
270–72 	(stating 	that 	“debate 	on 	public 	issues 	should 	be
uninhibited, 	robust, 	and 	wide-open” 	and 	that 	“erroneous
statement is inevitable in free debate, and . . . it must be
protected if the freedoms of expression are to have the breathing
space that they need to survive”) (quotation simplified). Acumen
published the challenged statements within the larger context of
a hotly debated public issue—the signature path to the primary
ballot. 	At 	that 	time, 	the 	URP 	had 	initiated 	and 	lost 	two
challenges to SB54’s signature-gathering provision and emotions
11. Plaintiffs argue that although Acumen “did provide a few
news articles that mentioned only the possibility of the Bylaw
being 	illegal, 	. 	. 	. 	those 	articles 	never 	once 	mentioned 	the
possibility that voting for the Bylaw was criminal or illegal
conduct,” as they contend Acumen had alleged.

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were undoubtedly high. See Utah Republican Party v. Cox, 892
F.3d 1066, 1073–75 (10th Cir. 2018). And Plaintiffs implicitly
acknowledge that the Bylaw was a well-known issue within
URP circles, stating that even without Acumen’s second email
containing a link to a list of members of the Gang of 51, Plaintiffs
“were 	[already] 	widely 	known 	throughout 	the 	[URP] 	as
members of the Gang of 51 during the time that [Acumen] sent
his emails.”
¶19 	Acumen’s emails critiqued the propriety of the Bylaw
allowing the URP to expel party members who made it onto the
URP primary ballot via the signature-gathering route. Thus,
Acumen’s readers would have been aware that the challenged
statements were a continuation of the signature-path debate.
And given the readers’ understanding that Acumen’s emails and
social media post were part of that heated public debate, they
would have taken them “with a grain of salt,” regarding them
“as exaggerated and polemicized.” See Mast v. Overson, 971 P.2d
928, 932–33 (Utah Ct. App. 1998).
¶20 	Additionally, Acumen sent the emails in the familiar
format 	of 	a 	political 	email, 	similar 	to 	those 	that 	political
candidates or parties send attacking their opponents and seeking
contributions.12 The political nature of the emails was clear from
the subject line of the emails: “Keep the GOP on the ballot!” and
“Important Information for Caucus Night.” The body of the
emails contained large headings set against a backdrop stating,
“An Important Message: Read if you want to keep the GOP on
the ballot,” and “Background Information for Caucus Attendees:
How 	to 	protect 	the 	Republican 	Party 	from 	Extremists,”
respectively. The liberal use of bold font, inclusion of links to
news articles, and other formatting choices in the emails likewise
12. This may explain why only 12,870 out of 67,660 recipients of
the emails even opened them.

Pipkin v. Acumen
20190378-CA 	16 	2020 UT App 111
alerted their readers to their overtly political nature. Finally, the
bottom of each email contained a link labeled “Unsubscribe
here.” Given the readily apparent political nature of the emails,
readers would expect exaggerated commentary and accusations,
rendering them less likely to take the statements at face value.
See 	West, 	872 	P.2d 	at 	1010 	(stating 	that 	readers 	expect
exaggerated commentary and criticism of public officials in
editorial articles “and are therefore less likely to rely on [such
articles] in forming their opinions”).
¶21 	Taken as a whole, the context of the vigorous debate
concerning the signature path to the ballot and the format of the
challenged statements would have placed readers on notice that
the 	emails 	contained 	exaggerated 	commentary, 	rendering 	it
unlikely that the challenged statements would cause the readers
to “form a personal animus towards” Plaintiffs. See Mast, 971
P.2d at 932.
¶22 	Furthermore, 	we 	agree 	with 	the 	district 	court 	that
Acumen “never accused any individual of committing a crime”
because, with our emphasis, “at most, [Acumen] asserted that the
SCC’s action of adopting the contested Bylaw would be a Class B
misdemeanor violation of a law prohibiting interference with the
electoral process.” The emails stated that “a small group of
delegates to the [SCC],”13 whom Acumen referred to later in the
emails as the Gang of 51, “voted to enact a bylaw” that “violates
the rules for a ‘Qualified Political Party’ . . . under Utah state
law.” He also stated that “[b]ecause this stunt flouts current
election law, it constitutes a class B misdemeanor under section
20A of Utah State Code, punishable by up to six (6) months in
jail and a $1,000 fine.” But the “stunt” to which Acumen referred
was the SCC’s adoption of the Bylaw, not any member’s individual
13. In his second email, Acumen referred to the Gang of 51 as “a
small group of extremists on the [SCC].”

Pipkin v. Acumen
20190378-CA 	17 	2020 UT App 111
vote in favor thereof. No reasonable reader would understand
the emails to suggest that the mere vote in favor, irrespective of
whether the Bylaw ultimately passed, would constitute a class B
misdemeanor or otherwise be illegal conduct. Rather, at most, it
was 	the 	SCC 	majority’s 	adoption 	of 	the 	Bylaw 	that 	could
potentially be construed as the illegal activity, although it is
more likely that readers would understand the emails to suggest
that 	the 	actual 	enforcement 	of 	the 	Bylaw 	would 	be 	what
allegedly “flout[ed] current election law.”
¶23 	Plaintiffs also point out that Acumen asserted that “[b]y
jeopardizing 	our 	place 	on 	the 	2018 	ballot, 	our 	SCC
representatives have acted illegally, irresponsibly, recklessly,
and 	against 	our 	interests,” 	and 	that 	he 	authored 	a 	social
media post 	in 	which 	he 	stated, 	“If 	you 	want 	to, 	let 	the
#GangOf51 know how you feel about their illegal activity[.]” As
stated above, however, courts do not limit their analysis to
isolated 	words 	or 	sentences 	when 	determining 	whether 	a
publication is capable of sustaining a defamatory interpretation.
Acumen stated in his emails that SCC representatives acted
illegally “[b]y jeopardizing our place on the 2018 ballot.” Clearly
then, his readers would not understand the individual act of
voting in favor of the Bylaw to be illegal because this alone
would not have “jeopardiz[ed] [the URP’s] place on the 2018
ballot” if the SCC had ultimately not adopted the Bylaw. Given
the larger context in which Acumen sent the emails and the text
of the emails taken as a whole, these statements cannot be
construed to suggest that any individual vote in favor of the
Bylaw was “illegal.” Rather, at most, the statements were yet
another reference to the SCC majority’s collective adoption of the
Bylaw.
¶24 	For 	the 	reasons 	stated 	above, 	we 	conclude 	that 	the
challenged statements in Acumen’s emails and social media post
were not susceptible to defamatory interpretation as a matter of

Pipkin v. Acumen
20190378-CA 	18 	2020 UT App 111
law. The district court therefore properly granted summary
judgment in Acumen’s favor on this claim.14
II. Electronic Communications Harassment
¶25 	A person commits electronic communications harassment
if, “with intent to intimidate, abuse, threaten, harass, frighten, or
disrupt the electronic communications of another, the person,”
among other things, “causes disruption, jamming, or overload of
an electronic communication system through excessive message
traffic or other means utilizing an electronic communication
device” or, “after the recipient has requested or informed the
person not to contact the recipient, . . . the person repeatedly or
14. 	Because 	Plaintiffs’ 	false 	light 	and 	IIED 	claims 	are 	also
premised on the assertion that Acumen falsely accused them of
acting illegally by voting in favor of the Bylaw, we likewise
affirm 	the 	district 	court’s 	grant 	of 	summary 	judgment 	in
Acumen’s favor on those claims. Concerning the false light
claim, because Acumen at most accused the SCC of acting
illegally in adopting the Bylaw, and because local media outlets
reporting 	on 	the 	Bylaw had 	already 	suggested 	that it 	was
“possibly illegal,” Plaintiffs cannot establish that Acumen, a
layperson, “knew or recklessly disregarded the falsity of the
publicized matter.” See Jacob v. Bezzant, 2009 UT 37, ¶ 21, 212
P.3d 535.
The same reasoning applies to Plaintiffs’ IIED claim, which
fails because Acumen did not actually engage in the conduct that
Plaintiffs claim. Furthermore, even assuming that Acumen had
accused Plaintiffs of acting criminally by voting in favor of the
Bylaw, such conduct does not, in this robust political context,
“evoke outrage or revulsion” and therefore cannot “reasonably
be 	regarded 	as 	so 	extreme 	and 	outrageous 	as 	to 	permit
recovery.” See Chard v. Chard, 2019 UT App 209, ¶ 57, 456 P.3d
776 (quotation simplified).

Pipkin v. Acumen
20190378-CA 	19 	2020 UT App 111
continuously . . . causes an electronic communication device of
the recipient to ring or to receive other notification of attempted
contact by means of electronic communication.”15 Utah Code
Ann. § 76-9-201(2)(a), (d) (LexisNexis 2017). The statute also
provides an exemption, stating that it “does not create a civil
cause of action based on electronic communications made for
legitimate business purposes,” id. § 76-9-201(5)(b), but does not
define the key phrase, “legitimate business purposes.”
¶26 	Plaintiffs contend that Acumen’s emails to URP members
and social media post do not fall under the business purpose
exemption. Citing Black’s Law Dictionary, they argue that “a
business purpose would involve those actions related to one’s
livelihood 	or 	earning 	a 	profit.” 	See 	Business, 	Black’s 	Law
Dictionary 	239 	(10th 	ed. 	2014) 	(defining 	“business” 	as 	“[a]
commercial 	enterprise 	carried 	on 	for 	profits; 	a 	particular
occupation or employment habitually engaged in for livelihood
or gain”). And because Acumen never stated “that he sent his
emails for purposes related to his livelihood or earning of
profit,” Plaintiffs contend that he could not have sent the emails
for a legitimate business purpose.16 We decline to adopt such a
narrow definition of “legitimate business purposes.”
15. We note that the United States District Court for the District
of Utah recently concluded that the electronic communications
harassment statute—a criminal statute—does not authorize a
private cause of action. See Nunes v. Rushton, 299 F. Supp. 3d
1216, 1237–38 (D. Utah 2018). Utah appellate courts have yet to
address this issue, and because we conclude that the legitimate
business 	exemption 	applies 	to 	Acumen’s 	emails 	and 	social
media post in any event, we do not reach it here.
16. 	Plaintiffs 	also 	argue 	that 	“a 	legitimate 	purpose 	would
generally be described as doing something that is legal and
(continued…)

Pipkin v. Acumen
20190378-CA 	20 	2020 UT App 111
¶27 	Even assuming, without deciding, that the 600 emails
URP members sent to Plaintiffs can be attributed to Acumen
under the statute, Plaintiffs’ argument is unavailing because
Acumen’s emails and social media post clearly concerned URP
business—even 	absent 	economic 	implications. 	Although 	the
definition of “business,” as Plaintiffs point out, often involves
profit and livelihood, it is not the only definition of the term.
“Business” can likewise be defined as “an activity that someone
is engaged in,” “a person’s concern,” and “work that has to be
done or matters that have to be attended to.” Business, New
Oxford American Dictionary 237 (3d ed. 2010). See Business,
Merriam-Webster 	Online, 	https://www.merriam-webster.com/
dictionary/business 	[https://perma.cc/7PZB-2Q4F] 	(defining
“business” as a “role [or] function,” “an immediate task or
objective,” and “a particular field of endeavor”).
¶28 	Here, the SCC, acting as the representative body of the
URP, 	adopted 	the 	Bylaw—a 	document 	typical 	of 	business.
Acumen then sent the emails to the SCC’s constituents17 and
posted on social media discussing what he believed to be the
Bylaw’s harmful implications. This content dealt directly with
the “business” of the SCC and the URP and therefore falls
squarely 	within 	the 	statutory 	“legitimate 	business purpose”
exemption. Otherwise, under Plaintiffs’ limited definition, all
leaders of campaigns encouraging constituents to contact their
elected officials to urge them to vote in a certain manner, or to
(…continued)
proper,” which Acumen’s publications could not have been
because they were defamatory. But as discussed in section I,
Acumen’s emails and social media post were not defamatory as
a matter of law, and this argument therefore fails.
17. 	Generally, 	SCC 	members 	are 	elected 	at 	URP 	county
conventions.

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20190378-CA 	21 	2020 UT App 111
criticize an official’s recent vote, would be subject to liability
under the electronic communications harassment statute. Such
an interpretation of the statute would raise serious constitutional
questions, and we therefore decline to read Plaintiffs’ desired
definition into the statute. See Castro v. Lemus, 2019 UT 71, ¶ 54,
456 P.3d 750 (“Under the canon of constitutional avoidance,
courts may reject one of two plausible constructions of a statute
on the ground that it would raise grave doubts as to the statute’s
constitutionality. . . . In applying the canon of constitutional
avoidance, we presume that the legislature either prefers not to
press the limits of the Constitution in its statutes, or it prefers a
narrowed (and constitutional) version of its statutes to a statute
completely stricken by the courts.”) (quotation simplified).
¶29 	For 	this 	reason, 	the 	district 	court 	properly 	granted
summary judgment in Acumen’s favor on Plaintiffs’ electronic
communications harassment claim.
CONCLUSION
¶30 	The 	district 	court 	did 	not 	err 	in 	granting 	summary
judgment in favor of Acumen on Plaintiffs’ defamation, false
light, and IIED claims because, given the context and format in
which Acumen sent his emails and made his social media post
and based on an examination of the publications as a whole,
Acumen could not reasonably be said to have accused Plaintiffs
of illegal activity simply for voting in favor of the Bylaw.
Plaintiffs’ 	claim 	for 	electronic 	communications 	harassment
likewise fails because Acumen sent the emails and made the
social media post for a legitimate business purpose.
¶31 	Affirmed.