May 25, 2017- David C. Young v. Todd J. Wilham and Journal Publishing Company, No. 34,379

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	May 25, 2017
NO. 34,379
DAVID C. YOUNG,
Plaintiff-Appellant,
v.
TODD J. WILHAM and JOURNAL
PUBLISHING COMPANY,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Valerie Huling, District Judge
Stephen E. Lane
Albuquerque, NM
Vega Lynn Law Offices, LLC
Rosario D. Vega Lynn
Albuquerque, NM
for Appellant
Peifer, Hanson & Mullins, P.A.
Charles R. Peifer
Lauren Keefe
Gregory P. Williams
Albuquerque, NM
for Appellees

OPINION
HANISEE, Judge.
{1} 	Plaintiff David Young brought defamation and false light invasion of privacy
claims against Defendants Todd Wilham and Journal Publishing Company concerning
a number of statements contained within articles written by Wilham, a reporter, and
published in the Albuquerque Journal (the Journal), a local newspaper for which he
worked. The articles questioned aspects of Plaintiff’s dichotomous service to the
Albuquerque Police Department (APD) as a paid civilian employee and an unpaid
reserve officer. The district court dismissed some of Plaintiff’s claims pertaining to
the published statements under Rule 1-012(B)(6) NMRA and granted Defendants
summary judgment on the others. Plaintiff appeals both dispositive orders. He also
appeals the district court’s legal conclusion that he is a public official who, under New
York Times Co. v. Sullivan, 376 U.S. 254, 283-86 (1964), must prove Defendants
acted with “actual malice” in publishing the challenged articles. Plaintiff also contends
that rejection of his claims deprives him of heightened protections afforded only by
the New Mexico Constitution. We affirm.

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BACKGROUND
Factual Background
{2} 	Plaintiff was employed as a civilian by APD. Beginning in 1999, he was
assigned to APD’s Special Investigations Division (SID) as a fleet manager and
certified technical specialist. Plaintiff was responsible for setting up and monitoring
electronic surveillance in support of SID operations, during which he frequently
worked alongside detectives in the field. When this sparked safety concerns, the SID
commander asked that Plaintiff be trained as a reserve officer so that he could carry
a gun and a badge when assisting with field operations. In 2005 Plaintiff resumed
work with SID as a civilian technician, certified also to act as a reserve officer during
SID operations. At the time, SID was short two detectives, so a supervisory APD
lieutenant obtained authorization for Plaintiff to assist SID in a tactical capacity during
enforcement activities.
{3} 	In this arrangement, Plaintiff (as a civilian employee) set up and monitored
electronic surveillance for SID operations, and also (as a reserve officer) performed
undercover detective work when asked to do so by SID supervisors. According to one
such supervisor, it was not uncommon for Plaintiff to switch between both roles in the
same SID operation. Plaintiff was entitled to be paid for the work he performed as a
civilian technician, but reserve officers are volunteers who receive no pay for their

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work. Yet there is no dispute that neither Plaintiff nor SID supervisors adequately
documented the amount of time Plaintiff spent performing each of his roles.
According to Plaintiff, he accounted for reserve officer time by adjusting his time
sheets, deducting that time he spent performing reserve officer duties from the total
time he recorded in a given shift. For example, if Plaintiff worked until one o’clock
in the morning and had spent one hour performing reserve officer duties, he would
record on his time sheet that he had only worked until midnight. Thus, Plaintiff
explained that the civilian duties for which he was paid as an APD employee were in
fact differentiated from his unpaid volunteer activities as a reserve officer. However,
Plaintiff’s time sheets did not show any deductions, and there were no “other
contemporaneous records” reflecting the differentiation between Plaintiff’s paid and
unpaid overtime activities.
{4} 	Reporting for the Journal, Defendant Wilham obtained Plaintiff’s time sheets
and payroll information through a public records request. Wilham also obtained court
and arrest records from the operations in which Plaintiff participated. Upon his
comparison 	of 	the 	documents, 	Wilham 	concluded 	that 	Plaintiff 	had 	been
impermissibly paid for performing reserve officer duties, including instances in which
he made arrests—a function not allowed reserve officers. That is because the dates and
times when Plaintiff recorded making arrests overlapped with time periods for which

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Plaintiff reported and was paid overtime. To allow “time for . . . [APD] to start an
independent investigation and to figure out what [Plaintiff’s] status was before any
story was published[,]” Wilham provided the information he had gathered to APD’s
police chief, Ray Schultz, one week before the first article was published. Wilham also
made three requests of APD for additional documents, but it was only after
publication of his first story that APD responded. Also prior to publication, Wilham
contacted APD’s public information officer to request an interview with Plaintiff and
unsuccessfully attempted to contact Plaintiff directly. Wilham eventually spoke with
Plaintiff’s attorney, but Plaintiff never responded to Wilham and no interview with
Plaintiff was arranged by APD. In fact, APD ordered Plaintiff and his supervisors not
to speak with Wilham and told them that “Chief Schultz was going to handle it.”
{5} 	Between August 19, 2009, and October 20, 2009, the Journal published a series
of articles concerning Plaintiff and the APD reserve officer program. Earlier articles
focused on Plaintiff’s reserve officer activities—stating that Plaintiff made arrests and
collected overtime pay for doing police work—in the context of explaining that state
law and city ordinance prohibited reserve officers from making arrests and being paid
for reserve-related work. Later articles reported on APD’s reserve officer program
more generally, including APD’s temporary suspension of it and changes APD made
to it subsequent to an internal investigation. The Journal published additional aspects

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of the story as its series evolved, including that many of the cases based on arrests
Plaintiff made had been dismissed, the “cozy” relationship between Plaintiff and high-
ranking APD officials, and the $175,000 settlement the city paid to three women who
had been arrested by Plaintiff.
Procedural Background
{6} 	In 2012 Plaintiff sued Defendants, seeking damages for defamation and false
light invasion of privacy. Plaintiff claimed that the published articles defamed him by:
(1) characterizing him as a “wannabe cop,” (2) stating that he fraudulently collected
pay for reserve officer activities, (3) stating that he lacked proper training to perform
police functions, (4) stating that he had committed illegal and unethical conduct, (5)
stating that he was not a police officer, (6) asserting that he had violated APD standard
operating procedures and New Mexico law in actions as a reserve officer, (7) asserting
that he had engaged in misconduct in his work as a reserve officer, and (8) suggesting
that he was responsible for the suspension of the APD reserve officer program.
Plaintiff also claimed that Defendants “placed him before the public in a false light by
. . . labeling [him as] a ‘wannabe cop[,]’ . . . stating that he had collected overtime pay
for perform[ing r]eserve [o]fficer duties[,] and[] attempting to portray him as
unqualified to perform police functions.”

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{7} 	Defendants moved to dismiss the entirety of Plaintiff’s complaint for failure to
state a claim pursuant to Rule 1-012(B)(6). The district court granted Defendants’
motion in part, allowing Plaintiff to proceed only with his claims of defamation and
false light invasion of privacy “aris[ing] from Defendants’ statements concerning
Plaintiff’s collection of overtime pay and the related statements concerning Plaintiff’s
collection of overtime pay while making arrests and performing police work.”
{8} 	Following discovery, Defendants moved for summary judgment. Finding that
Plaintiff was a public official and thus applying the actual malice standard set forth
in New York Times Co., the district court granted Defendants’ motion because Plaintiff
produced no evidence that Defendants acted with actual malice. This appeal followed.
DISCUSSION
{9} 	On appeal, Plaintiff argues that the district court committed reversible error
when it: (1) deemed Plaintiff a “public official” required to establish “actual malice”
in order to succeed on his claims of defamation and false light, (2) applied Rule 1-
012(B)(6) to dismiss Plaintiff’s defamation and false light claims arising from
Defendants’ characterization of Plaintiff as a “wannabe cop,” (3) granted Defendants
summary judgment on the remaining claims, and (4) failed to afford Plaintiff
protections conferred by the New Mexico Constitution.

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I. 	The District Court Properly Found That Plaintiff Is a Public Official and
That the New York Times Co. “Actual Malice” Standard Applies to Both
His Defamation and False Light Claims
{10} 	Whether a plaintiff is a public official is a question of law that we review de
novo. See Marchiondo v. Brown, 1982-NMSC-076, ¶ 24, 98 N.M. 394, 649 P.2d 462;
see also Davis v. Devon Energy Corp., 2009-NMSC-048, ¶ 12, 147 N.M. 157, 218
P.3d 75. “Ascertaining the status of [a] plaintiff is necessary since it dictates the
standard of proof applicable in the law suit.” Coronado Credit Union v. KOAT
Television, Inc., 1982-NMCA-176, ¶ 33, 99 N.M. 233, 656 P.2d 896. A private
plaintiff need only prove that the defendant acted negligently in publishing a
defamatory statement, see Newberry v. Allied Stores, Inc., 1989-NMSC-024, ¶ 17, 108
N.M. 424, 773 P.2d 1231, whereas a public official must prove that the defendant
acted with actual malice. New York Times Co., 376 U.S. at 279-80. This heavier
burden on “public official” plaintiffs reflects “a profound national commitment to the
principle that debate on public issues should be uninhibited, robust, and wide-open,
and that it may well include vehement, caustic, and sometimes unpleasantly sharp
attacks on government and public officials.” Id. at 270. Notably for purposes of this
appeal, plaintiffs deemed public officials “must hurdle the same constitutionally-based
limitations on false light recovery as apply to defamation claims.” Andrews v.
Stallings, 1995-NMCA-015, ¶ 59, 119 N.M. 478, 892 P.2d 611; see also Restatement

8
(Second) of Torts § 652E (1977) (providing that a false light claim is actionable only
if “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”); see also id.
cmt. d (explaining that in Time, Inc. v. Hill, 385 U.S. 374 (1967), the United States
Supreme Court “held that the rule of New York Times Co. . . . also applies to false-
light cases” and that despite some uncertainty as to the state of Time, Inc. as applied
to private individuals after Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), “the
reckless-disregard rule would [still] apply if the plaintiff is a public official or public
figure”).
{11} 	While Plaintiff concedes that New Mexico case law clearly establishes that
police officers are public officials for purposes of defamation claims, see Ammerman
v. Hubbard Broadcasting, Inc., 1977-NMCA-127, ¶ 12, 91 N.M. 250, 572 P.2d 1258,
he argues that the district court erred in classifying him as a public official because as
a reserve officer, he lacked the status or authority characteristic of public officials. We
are not persuaded.
{12} 	In Ammerman, this Court recognized police officers “from the lowest to the
highest rank” as public officials, citing with approval state court cases from across the
country holding patrolmen to be public officials. Id. As one such court explained,
although patrolmen are “the lowest in rank of police officials[,]” their “duties are

9
peculiarly governmental in character and highly charged with the public interest.”
Coursey v. Greater Niles Twp. Pub. Corp., 239 N.E.2d 837, 841 (Ill. 1968) (internal
quotation marks omitted). The Coursey court reasoned that “[t]he abuse of a
patrolman’s office can have great potentiality for social harm; hence, public
discussion and public criticism directed towards the performance of that office cannot
constitutionally be inhibited by threat of prosecution under [s]tate libel laws.” Id. And
the Tenth Circuit similarly observed:
The cop on the beat is the member of the department who is most visible
to the public. He possesses both the authority and the ability to exercise
force. Misuse of this authority can result in significant deprivation of
constitutional rights and personal freedoms . . . . The strong public
interest in ensuring open discussion and criticism of his qualifications
and job performance warrant the conclusion that he is a public official.
Gray v. Udevitz, 656 F.2d 588, 591 (10th Cir. 1981). Thus, it is the plaintiff officer’s
influence, 	responsibility, 	and 	control—and, 	critically, 	the 	potential 	abuse
thereof—rather than his title, level of certification, or visibility that justifies his
designation as a “public official” for defamation and false light purposes. See Britton
v. Koep, 470 N.W.2d 518, 522-24 (Minn. 1991) (holding that a probation officer was
a “public official” based on the fact that under state law, probation officers possessed
authority similar to police officers and because “[t]he same opportunity to exploit the
probation officer’s official position exists . . . as for other peace officers”).

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{13} 	Despite his concurrent status as a civilian employee and reserve officer,
Plaintiff was a commissioned, sworn law enforcement officer who wore a department-
issued uniform when performing his reserve officer duties. He was issued a detective
badge and assigned by APD to perform undercover detective work. He carried a gun,
made arrests, identified himself as an officer or detective in criminal complaints, and
appeared in court as such. It was precisely Plaintiff’s conduct as a reserve
officer—specifically carrying a detective badge, announcing his status as a detective,
and making arrests while appearing to be paid, all of which were beyond Plaintiff’s
authority—that was the subject of Defendants’ reporting.
{14} 	Plaintiff’s view that even if Ammerman applies to him it would only be “to the
times [Plaintiff] was operating as a reserve officer and not when he was operating as
a civilian employed by APD” is unavailing. That is because the resolution of
Plaintiff’s status as a private individual or public official necessarily focuses on the
subject matter of the allegedly defamatory statements, i.e., whether or not the
statements concerned a matter of public interest or related to Plaintiff’s “public
official” conduct. See Furgason v. Clausen, 1989-NMCA-084, ¶ 33, 109 N.M. 331,
785 P.2d 242 (explaining that in determining a defamation plaintiff’s status, the
court’s “examination focuses on whether the defamatory material concerns a public
controversy or topic of legitimate public concern, together with the nature and extent

11
of [the plaintiff’s] participation in the controversy”); see also New York Times Co.,
376 U.S. at 279-80 (announcing the rule that “prohibits a public official from
recovering damages for a defamatory falsehood relat[ed] to his official conduct unless
he proves that the statement was made with ‘actual malice’ ” (emphasis added)). Here,
Defendants’ statements criticized Plaintiff’s conduct as a reserve officer, not his
activities as a civilian, and concerned the larger public controversy regarding
management of APD’s reserve officer program. Even if Defendants’ interpretation of
Plaintiff’s time sheets was incorrect as Plaintiff alleges, it does not change the fact that
the published statements related to Plaintiff’s conduct as a reserve officer, i.e., that of
a public official.
{15} 	We hold that Plaintiff acted under the color of authority of a sworn police
officer, and his use of that authority is what Defendants called into question in the
series of articles they published in the Journal. As such, the district court correctly
determined Plaintiff to be a public official for purposes of his defamation and false
light invasion of privacy claims.
II. 	The District Court Properly Dismissed Plaintiff’s Claims Related to
Defendants’ Characterization of Him as a “Wannabe Cop”
{16} 	Plaintiff argues that the district court erred when it dismissed his defamation
and false light invasion of privacy claims premised upon Defendants’ published
characterization of Plaintiff as a “wannabe cop.” Plaintiff alludes as well to other

12
published statements he contends the district court was wrong to declare not
defamatory as a matter of law. He fails, however, to develop specific arguments to
support these further contentions. Just as defendants “do not bear the burden to discern
how [an] article has defamed [a plaintiff,]” we will not guess at what Plaintiff’s
undeveloped arguments may be. Andrews, 1995-NMCA-015, ¶ 14 (explaining that
defamation plaintiffs “must plead precisely the statements about which they
complain” (internal quotation marks and citation omitted)); see Headley v. Morgan
Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (declining to
entertain a cursory argument that included no explanation of the party’s argument and
no facts that would allow this Court to evaluate the claim). We therefore limit our
review to Plaintiff’s challenge to the district court’s ruling that the descriptive term
“wannabe cop” was not defamatory as a matter of law.
A. 	Standard of Review
{17} 	We review a district court’s dismissal of a claim under Rule 1-012(B)(6) de
novo. Delfino v. Griffo, 2011-NMSC-015, ¶ 9, 150 N.M. 97, 257 P.3d 917. A district
court’s ruling that a statement is not defamatory as a matter of law is also reviewed
de novo. See Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). Likewise, “the
question of whether a statement portrays an individual in a false light . . . is a matter

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of law to be determined by the court[,]” which we review de novo. Alves v. Hometown
Newspapers, Inc., 857 A.2d 743, 751 (R.I. 2004).
{18} 	A Rule 1-012(B)(6) motion to dismiss for failure to state a claim “tests the legal
sufficiency of the complaint[.]” Derringer v. State, 2003-NMCA-073, ¶ 5, 133 N.M.
721, 68 P.3d 961. “In determining the sufficiency of a defamation pleading, [courts]
consider whether the contested statements are reasonably susceptible of a defamatory
connotation.” Davis v. Boeheim, 22 N.E.3d 999, 1003 (N.Y. 2014) (internal quotation
marks and citation omitted). “An action for defamation lies only for false statements
of fact and not for statements of opinion.” Mendoza v. Gallup Indep. Co., 1988-
NMCA-073, ¶ 4, 107 N.M. 721, 764 P.2d 492. The same is true for false light claims.
See Rinsley v. Brandt, 700 F.2d 1304, 1307 (10th Cir. 1983) (explaining that “the
defense available in a defamation action that the allegedly defamatory statements are
opinions, not assertions of fact, is also available in a false light privacy action”). If a
statement is “unambiguously opinion, the trial court may properly rule as a matter of
law.” Mendoza, 1988-NMCA-073, ¶ 5.
B. 	“Wannabe Cop” Is a Statement of Opinion and Therefore Absolutely
Privileged Speech
{19} 	The parties disagree whether “wannabe cop” reflects Defendants’ opinion of
Plaintiff—in which case the district court properly found it was not defamatory as a
matter of law—or could be interpreted as a factual allegation—in which case a jury

14
would have to decide whether it was defamatory. Defendants argue that their use of
the term “wannabe cop” is non-actionable opinion because in conjunction with the
characterization, they disclosed supporting facts. Plaintiff argues that Defendants
failed to disclose why they characterized Plaintiff as a “wannabe cop,” thus making
resolution of the claims fact-dependent and therefore inappropriate for dismissal under
Rule 1-012(B)(6).
{20} 	As this Court and many others have acknowledged, “[n]o task undertaken under
the law of defamation is any more elusive than distinguishing between fact and
opinion.” Moore v. Sun Publ’g Corp., 1994-NMCA-104, ¶ 24, 118 N.M. 375, 881
P.2d 735 (alteration, internal quotation marks, and citation omitted); see Ollman v.
Evans, 750 F.2d 970, 978 (D.C. Cir. 1984) (“While courts are divided in their methods
of distinguishing between assertions of fact and expressions of opinion, they are
universally agreed that the task is a difficult one.”). The challenge arises from the fact
that “expressions of ‘opinion’ may often imply an assertion of objective fact.”
Milkovich v. Lorain Journal Co., 497 U.S. 1, 18 (1990); cf. Abbas v. Foreign Policy
Group, LLC, 783 F.3d 1328, 1338-39 (2015) (considering whether questions posed
in an article may themselves be defamatory and, while acknowledging that “a
question’s wording or tone or context sometimes may be read as implying the writer’s
answer to that question[,]” affirming dismissal under Fed. R. Civ. P. 12(b)(6) and

15
noting its refusal to “usher D.C. law down such a new and uncertain road”). This is
particularly true where the facts underlying the so-called opinion are not fully
disclosed because the danger exists that “a writer could escape liability for accusations
of defamatory conduct simply by using, explicitly or implicitly, the words ‘I think.’
” Milkovich, 497 U.S. at 19 (alteration, internal quotation marks, and citation omitted).
New Mexico courts presented with this question must consider three things: “(1) the
entirety of the publication[,] (2) the extent that the truth or falsity may be determined
without resort to speculation[,] and (3) whether reasonably prudent persons reading
the publication would consider the statement as an expression of opinion or a
statement of fact.” Marchiondo, 1982-NMSC-076, ¶ 35. “If the material as a whole
contains full disclosure of the facts upon which the publisher’s opinion is based and
which permits the reader to reach his own opinion, the court in most instances will be
required to hold that it is a statement of opinion, and absolutely privileged.” Id. ¶ 56
(alteration, internal quotation marks, and citation omitted); see also Restatement
(Second) of Torts § 566 (1977) (“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.”). In other words, “when a speaker outlines the factual basis for his
conclusion, his statement is protected by the First Amendment.” Partington v.

16
Bugliosi, 56 F.3d 1147, 1156 (9th Cir. 1995). That is because when “the bases for the
conclusion are fully disclosed, no reasonable reader would consider the term anything
but the opinion of the author drawn from the circumstances related.” Id. (omission,
internal quotation marks, and citation omitted); see Marchiondo, 1982-NMSC-076,
¶ 57 (explaining that “the crucial difference between statement of fact and opinion
depends upon whether ordinary persons hearing or reading the matter complained of
would be likely to understand it as an expression of the speaker’s or writer’s opinion,
or as a statement of existing fact” (alteration, internal quotation marks, and citation
omitted)); cf. Hotchner v. Castillo-Puche, 551 F.2d 910, 913 (2d. Cir. 1977)
(explaining that an expression of opinion may be actionable “when a negative
characterization of a person is coupled with a clear but false implication that the
author is privy to facts about the person that are unknown to the general reader”). This
type of opinion cannot be false and therefore is not actionable, even if defamatory. See
Kutz v. Indep. Publ’g Co., 1981-NMCA-147, ¶ 7, 97 N.M. 243, 638 P.2d 1088.
{21} 	In Standing Committee on Discipline of United States District Court for Central
District of California v. Yagman, 55 F.3d 1430, 1439 (9th Cir. 1995), the Ninth
Circuit provided a helpful discussion and illustration of the dichotomy between
actionable and non-actionable opinion statements. Writing for the court, Judge
Kozinski noted that the Restatement (Second) of Torts § 566 “distinguishes between

17
two kinds of opinion statements: those based on assumed or expressly stated facts, and
those based on implied, undisclosed facts.” Yagman, 55 F.3d at 1439; see also Kutz,
1981-NMCA-147, ¶ 26 (Donnelly, J., specially concurring) (describing the “two kinds
of expressions of opinion” as articulated in the Restatement (Second) of Torts). Judge
Kozinski offered the example “I think Jones is an alcoholic,” which he described as
“an expression of opinion based on implied facts . . . because the statement gives rise
to the inference that there are undisclosed facts that justify the forming of the
opinion[.]” Yagman, 55 F.3d at 1439 (internal quotation marks and citations omitted).
Such a statement would be actionable because it fails to provide the reader or listener
with the factual basis for the speaker’s conclusion that Jones is an alcoholic, thus
making the statement potentially defamatory. Id. By contrast, the following is a non-
actionable statement: “Jones moved in six months ago. He works downtown, and I
have seen him during that time only twice, in his backyard around 5:30 seated in a
deck chair with a drink in his hand. I think he must be an alcoholic.” Id. (alteration,
omission, internal quotation marks, and citation omitted). Here, where the speaker has
provided the specific factual basis for his opinion that Jones is an alcoholic, his
conclusion 	is 	considered 	pure 	opinion—i.e., 	non-defamatory 	as 	a 	matter 	of
law—because the reader or listener has the ability to draw his or her own conclusion
as to whether Jones is an alcoholic.

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{22} 	Judge Sack’s leading treatise on defamation provides additional helpful
illustrations:
To say that a man is ‘insane’ may be defamatory; but to explain
first that he, a political newcomer, is planning a campaign against the
most popular politician in the county makes it clear that ‘insanity’
reflects no more than the speaker’s view of the candidate’s judgment or
chances of success. The statement is hyperbolic and is not demonstrably
false.
1 Robert D. Sack, Sack on Defamation § 4:3.2 at 4-48 (4th ed. 2016). Consider, also,
the following:
To say that an agent ‘screwed’ his client may imply knowledge of
facts demonstrating that the agent unfairly dealt with the client; the
opinion could, therefore, be defamatory. If it were based on an accurate
statement of facts—for example, that the plaintiff received an unusually
high commission—the statement would be hyperbole. To say a person
was engaged in a ‘scam’ might be an actionable allegation of fact, but
where the statement is accompanied by the fact that what the plaintiff
was selling commercially was available elsewhere free or at significantly
lower cost, it is opinion.
Id. at 4-50 (footnote omitted). In other words, publication of the predicate facts upon
which the writer’s subjective surmise is based transforms what may otherwise be an
allegation of defamatory fact into nothing more than the writer’s pure opinion with
which the reader is free to agree or disagree. See id. at 4-52 (“Once the facts are
correctly stated, an author’s views about them are neither provably true nor provably
false and therefore are protected[.]”).

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{23} 	In this case, Defendants did not merely label Plaintiff a “wannabe cop” without
disclosing any facts about Plaintiff but rather disclosed the facts on which their
characterization was based. Each of the articles containing the term “wannabe cop”
identified Plaintiff as a reserve officer, explained the differences between reserve
officers and certified law enforcement officers, and made clear that Plaintiff was not
a certified law enforcement officer. Each article informed readers that state law does
not allow reserve officers to make arrests but that court records indicated that Plaintiff
had made numerous arrests during his many years as a reserve officer. The context of
the articles makes clear to a reasonable reader that Defendants used the term “cop” to
refer to a certified law enforcement officer, i.e., an officer with arrest powers; thus the
term “wannabe cop” would reasonably be understood as shorthand for Defendants’
criticism of Plaintiff for acting like a certified law enforcement official (i.e., being a
“wannabe cop”) when he was not one. Cf. Kutz, 1981-NMCA-147, ¶¶ 18, 20 (finding
error in the district court’s dismissal of the plaintiff’s complaint when “there are
implications . . . that the writer has private, underlying knowledge to substantiate his
comments about [the] plaintiff[,]” but “none of the privately-held information appears
in the article that would permit a reader to draw his own independent characterization
or opinion of [the] plaintiff”). The fact that Plaintiff switched from civilian to police
roles so fluidly without clear separation of them at any given time bolstered this

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impression. Given this context, an ordinary person reading Defendants’ articles would
not understand “wannabe cop” to be a statement of existing fact but rather
Defendants’ subjective characterization—i.e., opinion—of Plaintiff based on their
interpretation of the facts. See Marchiondo, 1982-NMSC-076, ¶ 57.
{24} 	Importantly, not only does Plaintiff not dispute any of these underlying facts
or claim that they are false, see Yagman, 55 F.3d at 1439 (explaining that “[a]
statement of opinion based on fully disclosed facts can be punished only if the stated
facts are themselves false”), he has alternatively relied on them (in vain, as we have
already concluded) to support his argument that he is not a public official.
Specifically, in his brief-in-chief, Plaintiff prevaricates that “[a]lthough [Plaintiff] is
a sworn, commissioned law enforcement officer, he did not acquire certification which
is typically only obtained by full-time, salaried officers.” Plaintiff also attempted to
avoid being designated a public official by pointing to the fact that “[a]s a reserve
officer, he was supervised at all times by certified, sworn law enforcement personnel”
and arguing that while New Mexico has held that police officers are public officials,
that designation “has not yet attached to reserve police officers.” Plaintiff cannot claim
not to be a police officer in order to avoid the public official designation and at the
same time claim he “is a cop” in order to argue the defamatory or false nature of the
label “wannabe cop.” In other words, when Plaintiff himself argues that there is a

1While Defendants argue both lack of actual malice and the substantial truth of
their published statements on appeal, we need not discuss the truth/falsity element of
Plaintiff’s claims because we agree with the district court’s basis for granting
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distinction between a certified officer and a reserve officer, he cannot fault Defendants
for pointing out that very distinction in their reporting through the use of hyperbolic
headlinese.
{25} 	Considering the context of the publications as a whole and Defendants’
disclosure of the undisputed facts on which its conclusion was based, we conclude that
Defendants’ labeling of Plaintiff as a “wannabe cop” was pure opinion and thus
absolutely protected by the First Amendment. The district court did not err in finding
as a matter of law that Plaintiff failed to state a claim for defamation or false light
invasion of privacy based on Defendants’ published use of the term “wannabe cop.”
III. 	The District Court Properly Granted Defendants Summary Judgment on
Plaintiff’s Remaining Claims
{26} 	Following discovery, Defendants sought summary judgment on Plaintiff’s
claims that related to Defendants’ statements that Plaintiff received overtime pay for
police-related work. Defendants argued that Plaintiff lacked evidence of falsity, actual
malice, and reputational injury. The district court granted Defendants’ motion based
on its conclusion that Plaintiff failed to meet his burden of proving that any genuine
issue of material fact existed as to the question of actual malice and therefore did not
address the other possible bases supporting summary judgment. 1

summary judgment. See Goradia v. Hahn Co., 1991-NMSC-040, ¶ 18, 111 N.M. 779,
810 P.2d 798 (“A complete failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial.” (alteration,
internal quotation marks, and citation omitted)). In other words, the issue of whether
Defendants’ statements were true, substantially true, or false is mooted by Plaintiff’s
failure to establish that Defendants acted with actual malice.
2The dissent faults this opinion for making a “sweeping generalization that
Plaintiff was inappropriately paid for overtime work as a reservist, ignoring the
emphasis on Plaintiff’s collection of over $12,000 specified by Defendants in the
22
{27} 	On appeal, Plaintiff appears to proffer two bases to support reversal of summary
judgment: (1) that the district court “mistakenly granted summary judgment on the
supposition that ‘confusing’ records excused [Defendants’] actions” because whether
the records were confusing “is an issue of fact for the jury[,]” and/or (2) that the
district court “erred by concluding that there was insufficient evidence from which a
jury could conclude that the Defendants acted with actual malice or with reckless
disregard for the truth.” We note that Plaintiff dedicates less than one page to
explaining his first basis, developing no facts and citing no authority to support his
assertion. As to his second basis, Plaintiff does nothing more than make conclusory
statements, cite our UJI that defines “wrongful acts,” and cite Lt. Smith’s testimony
regarding his opinions of Defendants’ characterization of Plaintiff as a “wannabe
cop.” Importantly, Plaintiff fails to develop any argument whatsoever regarding
Defendants’ published statements that he collected overtime pay for police-related
work.2 We limit our analysis to Plaintiff’s arguments as presented. See Elane

initial three articles.” Dissent ¶ 47. We needn’t dissect Wilham’s spreadsheet (which
was the source of the $12,000 figure), question its reliability or Defendants’ choice
not to include it with their motion for summary judgment, or speculatively attribute
inordinate significance to the fact that the specific dollar amount was only included
in Defendants’ first three articles as the dissent does. See Dissent ¶¶ 47, 52, 70, 73, 77.
It was Plaintiff’s burden—not this Court’s—to develop such arguments to survive
summary judgment, and he failed to do so.
Moreover, we note that Plaintiff’s first amended complaint—filed in response
to Defendants’ Rule 1-012(B)(6) motion to dismiss based on Plaintiff’s failure to
allege specific false statements that formed the basis of his claim as required by
Andrews, 1995-NMCA-015, ¶ 14 (explaining that defamation plaintiffs “must plead
precisely the statements about which they complain” (internal quotation marks and
citation omitted))—merely alleged that Defendants made false statements “that
[Plaintiff] fraudulently collected pay for Reserve Officer activities” and said nothing
about the $12,000 statements in particular, contrary to the dissent’s suggestion that
Plaintiff alleged separate claims “arising from the specific $12,000 statements.”
Dissent ¶ 46. As this Court stated in Andrews, “[d]efendants do not bear the burden
to discern how [an article] has defamed [the p]laintiff[].” Id. Thus the “immateriality”
of the $12,000 figure, Dissent ¶ 74, Defendants’ decision not to specifically proffer
evidence of their state of mind regarding the figure, Dissent ¶ 76, and this opinion’s
“singular treatment of Defendants’ series of eleven articles[,]” Dissent ¶ 47, result
from Plaintiff’s choice not to allege a defamation claim based on the specific amount
reported.
23
Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 (“We will not
review unclear arguments, or guess at what a party’s arguments might be.” (alteration,
internal quotation marks, and citation omitted)). To do otherwise “creates a strain on
judicial resources and a substantial risk of error. It is of no benefit either to the parties
or to future litigants for this Court to promulgate case law based on our own
speculation rather than the parties’ carefully considered arguments.” Id.
A. 	Standard of Review

24
{28} 	“Summary judgment is appropriate where there are no genuine issues of
material fact and the movant is entitled to judgment as a matter of law.” Self v. United
Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “[W]e view
the facts in a light most favorable to the party opposing the motion and draw all
reasonable inferences in support of a trial on the merits[.]” Handmaker v. Henney,
1999-NMSC-043, ¶ 18, 128 N.M. 328, 992 P.2d 879. “The standard of review on
appeal from summary judgment is de novo.” Farmers Ins. Co. of Ariz. v. Sedillo,
2000-NMCA-094, ¶ 5, 129 N.M. 674, 11 P.3d 1236.
B. 	Summary Judgment Appellate Review in a Defamation or False Light
Case Involving a Public Official
{29} 	In New Mexico, summary judgment is generally considered a “drastic remedial
tool which demands the exercise of caution in its application[.]” Woodhull v. Meinel,
2009-NMCA-015, ¶ 7, 145 N.M. 533, 202 P.3d 126 (internal quotation marks and
citation omitted). However, “summary judgment may be proper when the moving
party has met its initial burden of establishing a prima facie case for summary
judgment.” Romero v. Philip Morris, Inc., 2010-NMSC-035, ¶ 10, 148 N.M. 713, 242
P.3d 280. In a defamation or false light case, a defendant establishes a prima facie case
by “produc[ing] evidence by deposition or affidavit that [it] did not have knowledge
of the falsity of the statements made . . . or that [it] did not [publish] the false
statements with reckless disregard of the truth.” Ammerman, 1977-NMCA-127, ¶ 40.

25
“If this duty is performed, the burden shifts to [the plaintiff] to establish that a genuine
issue of material fact exists.” Id. Additionally it is well recognized that summary
judgment procedures are “essential” in cases involving the First Amendment. See
Washington Post Co. v. Keogh, 365 F.2d 965, 968 (D.C. Cir. 1966). That is because
at stake “is free debate.” Id. As this Court recognized in Andrews, “[t]he failure to
dismiss an unwarranted libel suit might necessitate long and expensive trial
proceedings that would have an undue chilling effect on public discourse.” 1995-
NMCA-015, ¶ 6. As a result, the rule in New Mexico is that district courts must
determine at the earliest possible stage whether a public-official plaintiff can establish
that the statements regarding him are false and, if so, that there exists evidence that
they were made with actual malice. See id. Thus, defamation and false light
defendants typically seek summary judgment by either (1) “removing the issue of
actual malice from the case,” or (2) presenting evidence of the “truth of its
statement[s]” as an absolute defense. Ammerman, 1977-NMCA-127, ¶¶ 15, 22
(internal quotation marks and citation omitted); see also Rinsley, 700 F.2d at 1307
(“[E]ssential to both a false light privacy claim and a defamation claim is a
determination that ‘the matter published concerning the plaintiff is not true.’ Thus, in
a false light privacy action, as in a defamation action, truth is an absolute defense.”
(quoting Restatement (Second) of Torts § 652E cmt. a)). If a defendant successfully

3We note that the dissent fails to follow this procedure, focusing exclusively on
what it sees as an infirmity in Defendants’ summary judgment motion and never
addressing that the record as a whole—and particularly Plaintiff’s response—fails to
provide any evidence indicating the existence of a genuine issue of material fact as
to actual malice.
26
negates any essential element of the plaintiff’s claim, it is entitled to summary
judgment. See Mayfield Smithson Enters. v. Com-Quip, Inc., 1995-NMSC-034, ¶ 22,
120 N.M. 9, 896 P.2d 1156 (“Summary judgment is appropriate when a defendant
negates an essential element of the plaintiff’s case by demonstrating the absence of an
issue of fact regarding that element.”).
{30} 	“A reviewing court, in deciding whether summary judgment is proper, must
look to the whole record and take note of any evidence therein which puts a material
fact in issue.” Koenig v. Perez, 1986-NMSC-066, ¶ 10, 104 N.M. 664, 726 P.2d 341
(internal quotation marks and citation omitted). “[W]e step into the shoes of the
district court, reviewing the motion, the supporting papers, and the non-movant’s
response as if we were ruling on the motion in the first instance.”3 Farmington Police
Officers Ass’n v. City of Farmington, 2006-NMCA-077, ¶ 13, 139 N.M. 750, 137 P.3d
1204. In the specific context of reviewing an order granting summary judgment in a
public official defamation or false light case, “an appellate court must independently
examine the record to determine whether the plaintiff has proffered sufficient evidence
to prove actual malice.” CACI Premier Tech. Inc. v. Rhodes, 536 F.3d 280, 293 (4th

27
Cir. 2008); see Andrews, 1995-NMCA-015, ¶ 59 (explaining that such plaintiffs “must
hurdle the same constitutionally-based limitations on false light recovery as apply to
defamation claims”). Independent review is particularly important in such cases
because “the question is one of alleged trespass across the line between speech
unconditionally guaranteed and speech which may legitimately be regulated.” New
York Times Co., 376 U.S. at 285. “In cases where that line must be drawn, the rule is
that we examine for ourselves the statements in issue and the circumstances under
which they were made to see whether they are of a character which the principles of
the First Amendment . . . protect.” Id. (internal quotation marks and citation omitted);
see Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 510-11
(1984) (explaining that the New York Times Co. requirement of independent appellate
review “reflects a deeply held conviction that judges . . . must exercise such review
in 	order 	to 	preserve 	the 	precious 	liberties 	established 	and 	ordained 	by 	the
Constitution”). The operative question before us is “whether the evidence in the record
could support a reasonable jury finding either that the plaintiff has shown actual
malice . . . or that the plaintiff has not.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255-56 (1986).
{31} 	Now decades ago, New York Times Co. defined “actual malice” to mean “with
knowledge that [a statement] was false or with reckless disregard of whether it was

28
false or not.” 376 U.S. at 279-80. “The actual-malice standard does not require
objectivity, a balanced presentation, or even a fair one. Rather, the standard focuses
on the defendant’s state-of-mind—whether [he] knew something to be false when [he]
reported it, or whether [he] acted with reckless disregard to its falsity.” Anaya v. CBS
Broad. Inc., 626 F. Supp. 2d 1158, 1217 (D.N.M. 2009). Thus, a plaintiff’s burden is
to present evidence “showing that a false publication was made with a high degree of
awareness of probable falsity” or “sufficient evidence to permit the conclusion that the
defendant in fact entertained serious doubts as to the truth of his publication.” St.
Amant v. Thompson, 390 U.S. 727, 731 (1968) (internal quotation marks and citation
omitted). This Court has described the plaintiff’s burden at summary judgment as
“difficult and in many cases impossible to meet, inasmuch as affirmative evidence of
a knowing state of mind cannot be produced.” Ammerman, 1977-NMCA-127, ¶ 18.
{32} 	There is no hard and fast rule delineating what a plaintiff must show with
respect to the defendant’s state of mind, specifically his or her reckless disregard for
the truth, in order to survive a motion for summary judgment. See St. Amant, 390 U.S.
at 730 (“Reckless disregard, it is true, cannot be fully encompassed in one infallible
definition. Inevitably its outer limits will be marked out through case-by-case
adjudication[.]”). Courts recognize that plaintiffs typically rely on circumstantial
evidence and inference to prove actual malice. See Herbert v. Lando, 441 U.S. 153,

29
170 (1979); Levesque v. Doocy, 560 F.3d 82, 90 (1st Cir. 2009) (“Because direct
evidence 	of 	actual 	malice 	is 	rare, 	it 	may 	be 	proved 	through 	inference 	and
circumstantial evidence[.]” (citation omitted)); Keogh, 365 F.2d at 967-68 (explaining
that recklessness “is ordinarily inferred from objective facts”). In St. Amant, the
United States Supreme Court identified possible ways for a plaintiff to meet his
burden, such as by proffering evidence that: (1) the defendant fabricated the story, (2)
the story is the product of the defendant’s imagination, (3) the false statement was
“based wholly on an unverified anonymous telephone call,” (4) the “allegations are
so inherently improbable that only a reckless man would have put them in
circulation,” or (5) “there are obvious reasons to doubt the veracity of the informant
or the accuracy of his reports.” 390 U.S. at 732. In a recent, high-profile case, a
federal district court surveyed “what other courts have determined is and is not
sufficient evidence” for a defamation plaintiff to survive summary judgment on the
issue of actual malice and provided the following, illustrative list:
[I]t is well settled that failure to investigate will not alone support a
finding of actual malice. Similarly, departure from journalistic standards
is not a determinant of actual malice, but such action might serve as
supportive evidence. Repetition of another’s words does not release one
of responsibility if the repeater knows that the words are false or
inherently improbable, or there are obvious reasons to doubt the veracity
of the person quoted. Furthermore, while actual malice cannot be
inferred from ill will or intent to injure alone, it cannot be said that
evidence of motive or care never bears any relation to the actual malice
inquiry. Finally, evidence that a defendant conceived a story line in

30
advance of an investigation and then consciously set out to make the
evidence conform to the preconceived story is evidence of actual malice,
and may often prove to be quite powerful evidence.
Eramo v. Rolling Stone, LLC, 209 F. Supp. 3d 862, 871 (W.D. Va. 2016) (alteration,
internal quotation marks, and citations omitted) (denying, in part, the defendant’s
motion for summary judgment because the court concluded that the plaintiff presented
sufficient evidence—specifically, extensive deposition testimony and the reporter’s
notes, which indicated the reporter’s doubts as to her source’s credibility—that, taken
as whole, could establish actual malice). See also 1 Sack, supra, § 5:5.2[A] at 5-85
(listing cases describing the myriad ways to establish evidence of actual malice); [B]
at 5-95 (identifying evidence that is insufficient to show actual malice). Thus,
although the actual malice standard is high, evidence that a publisher invented,
prejudged, or knowingly mischaracterized facts may allow a plaintiff to survive
summary 	judgment. 	However, 	courts 	generally 	agree 	that 	a 	single 	piece 	of
circumstantial evidence is insufficient to establish actual malice and that cumulation
of 	evidence 	is 	necessary 	to 	reach 	the 	requisite 	constitutional 	threshold. 	See
Tavoulareas v. Piro, 763 F.2d 1472, 1477-78 (D.C. Cir. 1985) (en banc) (rejecting the
publisher’s argument that “evidence of actual malice does not gain probative force
through ‘cumulation’ ”); see also Eramo, 209 F. Supp. 3d at 872 (explaining that
“[a]lthough failure to adequately investigate, a departure from journalistic standards,

31
or ill will or intent to injure will not singularly provide evidence of actual malice, the
court believes that proof of all three is sufficient to create a genuine issue of material
fact”). And it is beyond debate that “[a] complete failure of proof concerning an
essential element of the nonmoving party’s case necessarily renders all other facts
immaterial[,]” making summary judgment appropriate. Goradia, 1991-NMSC-040,
¶ 18 (internal quotation marks and citation omitted).
C. 	Defendants Made a Prima Facie Showing That They Were Entitled to
Summary Judgment, and Plaintiff Failed to Rebut That Showing in Order
to Survive Summary Judgment
{33} 	In this case, Plaintiff has failed to identify a single objective fact sufficient to
establish evidence of actual malice, let alone the cumulative evidence necessary to
create a genuine issue of material fact. In both responding to Defendants’ motion for
summary judgment and now on appeal, Plaintiff has not pointed to any affirmative
evidence showing that Defendants published statements that Plaintiff collected
overtime pay for police-related work with a high degree of awareness of their probable
falsity or having entertained serious doubts as to their truth. This is particularly
noteworthy given that the record supplies more than merely circumstantial evidence
to support Defendants’ defense that they acted without actual malice. But Plaintiff
simply argues that the district court erred in granting summary judgment “based on
its finding that the records were confusing.” Plaintiff interprets the district court’s

4The record reveals that the district court described the records as “confusing”
at a hearing on Defendants’ motion for a bill for costs held after the district court had
already granted Defendants summary judgment, not at the summary judgment hearing.
32
reference 	to 	“confusing” 	records—meaning 	Plaintiff’s 	time 	sheets 	and 	arrest
records—as being evidence of the existence of a genuine issue of material fact, which
would preclude summary judgment. But the opposite is true here. In the context of
establishing the existence of a genuine issue of material fact regarding actual malice,
the very fact that the records were confusing points towards, not away from, granting
summary judgment.
{34} 	We observe, in fact, that the district court’s basis for granting Defendants
summary judgment was not that the records were “confusing” but rather that Plaintiff
failed to rebut the “appearance that [Plaintiff] collected overtime while a reserve
officer” and thus could not prove actual malice.4 That “appearance” was made evident
by numerous pieces of evidence proffered by Defendants in support of their motion
for summary judgment. First, Defendants’ comparative analysis of Plaintiff’s time
sheets and court records showed that Plaintiff had claimed overtime during the same
periods when he had made arrests. For example, on Saturday, May 10, 2008, Plaintiff
claimed seven-and-one-half hours of overtime on his time sheet, using the overtime
authorization code “IN” for “investigation.” On that day, he arrested two people for
possession of a controlled substance. Plaintiff provided the following synopsis in his

33
incident report: “While working a vice tact plan[, I noticed] a male and a female
rolling and smoking a marijuana joint. . . . The female . . . admitted to me that [they
were both] ‘smoking’ and she was on her way to work. They both were arrested
without incident[.]” Plaintiff listed himself on the incident report as the “reporting
officer” and identified his rank as “detective,” both of which indicate reserve-
related—as opposed to civilian-related—work. There are numerous other similar
examples where Plaintiff claimed overtime for “investigation” work, made arrests
during those periods as evidenced by uniform incident reports, described himself in
those reports as “working under[]cover with the Vice Unit[,]” named himself as the
“reporting officer,” and identified his rank as “detective”—all at times that records
reflect he was being compensated as an employee of APD. Importantly, Plaintiff does
not contend that the time sheets, court records, or the spreadsheet Wilham created
based on those documents were falsified or contained any errors at all. In fact, he
concedes that Wilham’s spreadsheet “in which he document[ed Plaintiff’s] overtime
pay . . . represents the sum of all of [Plaintiff’s] overtime hours and overtime pay.” Cf.
Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 520-25 (1991) (holding that
evidence that the defendant fabricated or materially falsified statements may suffice
to meet the plaintiff’s burden to show actual malice in order to survive summary
judgment).

34
{35} 	Next, Lt. Rob Smith—Plaintiff’s direct supervisor who reviewed and approved
Plaintiff’s time sheets—admitted that (1) there was a “system failure” that resulted in
records indicating that Plaintiff “was earning overtime when he was working as a
reserve officer[,]” and (2) a person looking at Plaintiff’s time sheets and comparing
them to arrest records “would reasonably believe that [Plaintiff] was getting paid
overtime [as] a reserve [officer].” Lt. Smith stated that not only would it be reasonable
for someone to reach that conclusion, but he would expect it. In addition, APD’s own
investigation concluded that Plaintiff “was allowed to collect overtime pay for
working as an undercover detective and reserve officer.”
{36} 	Finally, Defendants pointed to two key admissions Plaintiff made to further
buttress the presumption that they acted without actual malice. First, Plaintiff admitted
that he knew of no one who informed Defendants that he was not paid overtime for
police-related work. Well after publication, Plaintiff attempted to account for the
apparent overlap between his overtime pay and performance of reserve-officer duties
by explaining that “[i]t was the unit practice when accounting for [Plaintiff’s]
overtime to deduct any time spent in a reserve capacity from the end of his shift, and
therefore from his total hours earned.” According to Plaintiff, his entire chain of
command knew about these subtractive adjustments and approved the practice. The

5In any event, we note that even if Plaintiff or someone else had offered the
“deduction” explanation to Wilham, Defendants would not necessarily have been
precluded from publishing the complained-of statements. That is because even when
a reporter has a document that propounds an alternative theory or figure—particularly
when it is not “airtight” and may be self-serving—he is “entitled to make legitimate
criticisms and present facts based on other, contradictory evidence without losing the
New York Times [Co.] privilege.” Anaya, 626 F. Supp. 2d at 1218.
35
critical person who did not know about this practice, however, was Wilham.5 Absent
responsive communication from Plaintiff or APD, how could he have?
{37} 	Second, Plaintiff admitted that not only did his time sheets not show any of the
purported deductions, they in fact showed that Plaintiff claimed overtime while doing
police-related work. And while he argued that the time sheets “do not accurately
reflect everything that was done” during his claimed overtime periods, he also
admitted that he was not aware of “any other contemporaneous records” that would
have made clear to someone reviewing his records that he was only claiming overtime
for non-reserve work. These admissions confirm what seems obvious: Wilham could
not have known about the “unit practice” of making deductions or that Plaintiff was
only claiming overtime for non-reserve work based on his review and comparison of
Plaintiff’s time sheets and court records because the documents themselves gave no
such indication. All of this evidence was more than enough for Defendants to meet
their burden of making a prima facie showing that there was no genuine issue of fact
as to actual malice and supported the district court’s conclusion that there was—at the

36
very least—an appearance that Plaintiff collected overtime pay for police-related
work. See Goodman, 1972-NMSC-043, ¶¶ 9, 11 (explaining that “[t]he burden on the
movant does not require him to show or demonstrate beyond all possibility that no
genuine issue of fact exists” and that such a burden “would be contrary to the express
provisions of Rule [1-056]” which “serve[s] a worthwhile purpose in disposing of
groundless claims, or claims which cannot be proved”).
{38} 	In the face of this evidence, it was incumbent upon Plaintiff to identify or
produce other evidence that eliminated that appearance and definitively established
that the records could only be interpreted one way—as showing that his overtime pay
was for non-reserve work—in order to survive summary judgment. Ammerman, 1977-
NMCA-127, ¶ 40 (explaining that once a defendant produces evidence that it acted
without actual malice, “the burden shifts to [the plaintiff] to establish that a genuine
issue of material fact exists”); see Time, Inc. v. Pape, 401 U.S. 279, 290-91 (1971)
(holding that a publisher’s “adoption of one of a number of possible rational
interpretations of a document” is not actionable). He failed to do so. In opposing
summary judgment, Plaintiff singularly argued that Defendants failed to interview
people with “personal knowledge of [Plaintiff’s] job description, activities, and
payroll” and that Defendants could not “duck behind the argument that ‘nobody
corrected us before we published it’.” But a defendant’s failure to investigate does not

37
“constitute[] sufficient proof of reckless disregard.” Ammerman, 1977-NMCA-127,
¶ 22 (internal quotation marks omitted); see St. Amant, 390 U.S. at 730 (explaining
that failing to verify potentially defamatory information with persons “who might
have known the facts” is not sufficient to establish evidence of actual malice).
Moreover, the defense of ignorance is, in fact, a valid defense to a defamation claim.
See St. Amant, 390 U.S. at 731 (acknowledging that “[i]t may be said that [the actual
malice] test puts a premium on ignorance, encourages the irresponsible publisher not
to inquire, and permits the issue to be determined by the defendant[’]s testimony that
he published the statement in good faith and unaware of its probable falsity[,]” but
nonetheless affirming the New York Times Co. standard). And in any event, Plaintiff’s
argument regarding Defendants’ failure to further investigate and interview additional
sources rings particularly hollow given that Wilham not only gathered documents
through two public information requests, but in fact attempted to interview the person
with the greatest personal knowledge of Plaintiff’s job description, activities, and
payroll: Plaintiff himself. But Plaintiff refused to speak with Wilham, despite having
learned from an APD deputy chief prior to the first article being published that there
was “an article coming out on a wannabe cop . . . that didn’t have the facts or the story
straight.” While it is true that “reckless disregard for the truth can be shown where
there is evidence of an intent to avoid the truth, such as where failure to conduct a

38
complete investigation involved a deliberate effort to avoid the truth,” that is simply
not what happened in this case. Anaya, 626 F. Supp.2d at 1218 (internal quotation
marks and citations omitted). It was not Defendants who made deliberate efforts to
avoid the truth but rather Plaintiff—and to an extent APD officials—who deliberately
avoided Defendants, thus stymieing Defendants’ efforts to seek and report the truth.
See Don King Prod., Inc. v. Walt Disney Co., 40 So. 3d 40, 46 (Fla. Dist. Ct. App.
2010) (affirming issuance of summary judgment where the defendant “tried to
interview [the plaintiff] to no avail[,]” leaving “no obvious reasons for ESPN to doubt
the challenged statements”).
{39} 	In the end, Plaintiff failed to proffer a scintilla of evidence that Defendants in
fact entertained serious doubts as to the truth of the statements that Plaintiff collected
overtime pay for police-related work. See St. Amant, 390 U.S. at 731 (“There must be
sufficient evidence to permit the conclusion that the defendant in fact entertained
serious doubts as to the truth of his publication.”). Accordingly, we can only hold that
Plaintiff failed to meet his burden of establishing the existence of a genuine issue of
fact on the question of actual malice, and must affirm the district court’s grant of
summary judgment.

39
IV. 	Plaintiff’s Constitutional Argument Is Without Merit
{40} 	Plaintiff contends that this Court’s application of the actual malice standard in
Andrews violates Article II, Section 17 of the New Mexico Constitution. We
understand Plaintiff to argue that Article II, Section 17 confers greater rights than
those afforded by the First Amendment to the United States Constitution, in this
instance not a right to speech, but to restriction of it. Plaintiff misconstrues the New
Mexico Constitution’s capacity to supplant the United States Constitution and
overlooks that the core citizen’s right established by both constitutional provisions is
to freedom of speech. See U.S. Const. amend. I (“Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people peaceably
to assemble, and to petition the Government for a redress of grievances.”); N.M.
Const. art. II, § 17 (“Every person may freely speak, write and publish his sentiments
on all subjects, being responsible for the abuse of that right; and no law shall be
passed to restrain or abridge the liberty of speech or of the press.”).
{41} 	By arguing that Article II, Section 17’s assignment of responsibility to those
that abuse the right to speak curtails the breadth of the First Amendment and cases that
interpret it, Plaintiff suggests that constitutionally protected words spoken elsewhere
ought to be nonetheless subject to speech-restrictive litigation in New Mexico. As

40
authority for this unlikely proposition, Plaintiff misreads Blount v. TD Publishing
Corp., 1966-NMSC-262, 77 N.M. 384, 423 P.2d 421, to require jury resolution of
questions of fact that involve matters of public concern and rights of privacy. Indeed,
the proposition Plaintiff advances requires that we reject what he calls the “federal
interpretation” that differentiates public and private citizens and assigns a higher
plaintiff’s burden to the former. Of course, while restrictions on speech and its abuses
exist in law and jurisprudence, the birth of an individual right to restrict speech would
exist in a state of inexorable tension with the First Amendment. See generally Eugene
Volokh, Freedom of Speech and Information Privacy: The Troubling Implications of
a Right to Stop People From Speaking About You, 52 Stan. L. Rev. 1049, 1107-09
(2000) (considering “the unwritten constitutional ‘value’ of privacy” and cautioning
that “changing First Amendment doctrine to let free speech rights be trumped by other
‘constitutional values’ derived by analogy from constitutional rights would permit a
broad range of speech restrictions”).
{42} 	But we needn’t grapple today with conflicting rights nor determine a victor
between one which is classically constitutional (speech) versus one that is offered as
such (restriction of speech). That is because Blount does not stand for the far broader
proposition Plaintiff advances; rather, it considered the “constitutional [rights] to
freedom of the press[,]” the “right of the public to be informed[,]” and a non-public

41
plaintiff’s “right of privacy of the individual” and determined that summary judgment
was improper as to the question of whether the publication was privileged because the
contents were of public interest or a matter of public record. 1966-NMSC-262, ¶¶ 5,
8, 10. Blount had nothing to do with the distinction between a public and private
plaintiff, did not discuss or apply New York Times Co., and cannot be read to elevate
privacy over speech as a matter of constitutional priority. Indeed, Blount observed that
“the right of privacy is generally inferior and subordinate to the dissemination of
news.” 1966-NMSC-262, ¶ 10.
{43} 	Ultimately, it is well established that while state courts generally may find
greater degrees of protection under their state constitutions where state and federal
constitutional provisions overlap, we may not “restrict the protection afforded by the
federal Constitution, as interpreted by the United States Supreme Court[.]” City of
Farmington v. Fawcett, 1992-NMCA-075, ¶ 27, 114 N.M. 537, 843 P.2d 839. This
Court in Andrews explained that New York Times Co. “constitutionalized the common
law tort of defamation [and] set a single standard for libel suits by public officials
against the press in every court in the nation.” Andrews, 1995-NMCA-015, ¶ 4
(internal quotation marks and citation omitted). In asking this Court to “reject the
federal interpretation for defamation[,]” Plaintiff would have us ignore our own
precedent, New York Times Co., 376 U.S. at 727 (“We hold today that the Constitution

42
delimits a [s]tate’s power to award damages for libel in actions brought by public
officials against critics of their official conduct.”), and the United States Constitution.
See U.S. Const. art. VI, cl. 2 (“This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land;
and the Judges in every State shall be bound thereby, any Thing in the Constitution
or Laws of any State to the Contrary notwithstanding.”). We decline Plaintiff’s
invitation to violate the United States Constitution by misusing our own.
CONCLUSION
{44} 	For the foregoing reasons, we affirm the district court’s orders.
{45} 	IT IS SO ORDERED.
J. MILES HANISEE, Judge

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I CONCUR:
RODERICK T. KENNEDY, Judge
M. MONICA ZAMORA, Judge (concurring in part, and dissenting in part).

44
ZAMORA, Judge (concurring in part, and dissenting in part).
{46} 	I agree with the majority that Plaintiff is a public official, that the actual malice
standard applies in both his defamation and false light claims, and that the district
court properly dismissed Plaintiff’s claims related to the Defendants’ characterization
of Plaintiff as a “wannabe cop.” While I also agree that we affirm summary judgment
on Plaintiff’s defamation and false light claims that arise from the general overtime
statements, I respectfully disagree that summary judgment is appropriate on Plaintiff’s
defamation and false light claims arising from the specific $12,000 statements, and
therefore dissent.
{47} 	My concern lies with the fact that the majority rests their analysis on the
sweeping generalization that Plaintiff was inappropriately paid for overtime work as
a reservist, ignoring the emphasis on Plaintiff’s collection of over $12,000 specified
by Defendants in the initial three articles. The majority’s singular treatment of
Defendants’ series of eleven articles facilitates Defendants’ ability to elude any
liability where there is a high degree of awareness of probable falsehood and their
reckless disregard of the truth is absolved by tucking any potentially defamatory and
false light statements within a series of articles that are otherwise appropriate.
{48} 	In addition to the facts and procedures set forth by the majority, I submit the
following supplementary factual and procedural background information.

45
BACKGROUND
Factual Background
{49} 	After Plaintiff completed the reserve officer training, he resumed his work with
SID as a civilian technician and was permitted to carry a gun and reserve officer badge
when on duty. At the time, SID was short two detectives and an APD lieutenant
supervising SID operations received authorization to have Plaintiff assist in tactical
operations.
{50} 	Plaintiff continued to set up and monitor the electronic surveillance for SID
operations, but SID supervisors also began using Plaintiff as an undercover detective.
According to one supervisor, Plaintiff served dual roles in SID operations. He set up
and monitored surveillance in his capacity as a civilian employee, and acted as an
undercover detective in his capacity as a reserve officer. It was not uncommon for
Plaintiff to serve both roles in one operation, switching between surveillance and
tactical duties. However, neither Plaintiff nor the SID supervisors adequately
documented the amount of time Plaintiff spent performing each of his roles. As
previously noted, in his capacity as a reserve officer, Plaintiff was a volunteer and
could not be paid. According to Plaintiff, he accounted for reserve officer time by
adjusting his time sheets, subtracting the time he spent performing reserve duties from
the total time he recorded.

46
{51} 	After reviewing the documents he obtained, Defendant Wilham concluded that
Plaintiff was being paid for his civilian duties at the same time he was performing
reserve officer duties, such as making arrests. After Wilham provided the information
he had gathered to APD’s police chief, an internal APD investigation was initiated and
the APD reserve officer program was temporarily suspended. Between August 19,
2009, and October 20, 2009, the Journal published a number of articles concerning
Plaintiff and the APD reserve officer program.
{52} 	In the first three articles, Defendants reported that Plaintiff collected more than
$12,000 in overtime pay for duties he performed as a reserve officer; duties for which
he should not have been paid at all. In the remaining articles, Defendants simply
reported that Plaintiff collected overtime pay as a reserve officer, omitting references
to the $12,000 amount.
Procedural Background
{53} 	In their motion for summary judgment, Defendants asserted that even though
Plaintiff had identified several articles that contained allegedly false statements about
his overtime, “the substance of each statement is the same: [w]hile acting as a cop,
[Plaintiff] has also made more than $12,000 in overtime working warrant sweeps,
stakeouts, undercover prostitution stings, and making arrests.”

47
{54} 	Defendants argued that: (1) the statements were materially true, (2) if the
statements were false there was no evidence of malice, and (3) the statements did not
harm 	Plaintiff’s 	reputation. 	Defendants 	also 	argued 	Plaintiff 	was 	unable 	to
demonstrate the actual malice required to establish defamation and invasion of privacy
of a public official or a public figure. The district court agreed that there was no
evidence of malice and granted summary judgment in favor of Defendants. This
appeal followed.
DISCUSSION
Defamation
{55} 	Defamation actions are rooted in the common law torts of libel and slander. See
Smith v. Durden, 2012-NMSC-010, ¶¶ 8, 9, 276 P.3d 943. At a fundamental level,
defamation actions serve to compensate individuals for injury to reputation. See id. ¶
10. Under New Mexico law, a prima-facie case for the tort of defamation includes: (1)
a published communication by the defendant; (2) the communication includes an
asserted statement of fact; (3) the communication was concerning the plaintiff; (4) the
statement of fact is false; (5) the communication was defamatory; (6) the persons
receiving the communication understood it to be defamatory; (7) the defendant knew
the communication was false or negligently failed to recognize that it was false, or
acted with malice; (8) the communication caused actual injury to the plaintiff’s

48
reputation; and (9) the defendant abused its privilege to publish the communication.
UJI 13-1002(B) NMRA. The Use Note points out that because Plaintiff is a public
official, UJI 13-1002(B)(4) places the burden of proof of falsity upon the plaintiff. See
UJI 13-1006 NMRA (“To support a claim for defamation, the communication must
be false.”); see also Garrison v. Louisiana, 379 U.S. 64, 74 (1964) (holding that the
burden is on the public official plaintiff to prove the alleged defamatory statement is
false).
{56} 	“For years, federal and state courts, including those in New Mexico, have been
confronted with the problem of achieving a proper balance between the laws of
defamation and the laws of constitutionally protected freedom of speech and of the
press.” Marchiondo, 1982-NMSC-076, ¶ 40. And “actions for defamation have
evolved 	in 	many 	ways 	due 	[in 	part] 	to 	the 	tort’s 	maturing 	constitutional
infrastructure.” Durden, 2012-NMSC-010, ¶ 10.
False Light
{57} 	New Mexico recognizes the tort of invasion of privacy, which is broken down
into four categories: “false light, intrusion, publication of private facts, and
appropriation.” Andrews, 1995-NMCA-015, ¶ 58. “False light invasion of privacy is
a close cousin of defamation.” Id. ¶ 59 (internal quotation marks and citation omitted);
see Zeran v. Diamond Broad., Inc., 203 F.3d 714, 719 (10th Cir. 2000) (distinguishing

49
defamation from false light invasion of privacy by noting that in a defamation action
recovery is sought primarily for injury to one’s reputation while in a false light action
it is the injury to the person’s own feelings). A false light plaintiff is required to prove
three things: (1) that the plaintiff was portrayed in a false light, i.e., “the matter
published concerning the plaintiff is not true[,]” Restatement (Second) of Torts § 652E
cmt. a; (2) that the false portrayal would be highly offensive to a reasonable person
such that the plaintiff would be “justified in the eyes of the community in feeling
seriously offended and aggrieved by the publicity[,]” Restatement (Second) of Torts
§ 652E cmt. c; and (3) that the publisher “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.” Restatement (Second) of Torts § 652E(b).
Summary Judgment Evidence
1. 	Defendants’ Evidence
{58} 	In their motion for summary judgment Defendants sought to negate three
elements of Plaintiff’s defamation claim: the falsity of their statements, malice, and
actual injury to Plaintiff’s reputation. To this end, Defendants provided the district
court with a sworn affidavit by Plaintiff; excerpts from the deposition testimony of
Plaintiff, Wilham, and three of Plaintiff’s APD supervisors; portions of the parties’
discovery responses; internal APD policies, reports, and memoranda; Plaintiff’s time

50
sheets; and records of arrests made by Plaintiff that include time sheets, corresponding
arrest records, and court documents.
{59} 	In his responses to interrogatories, Wilham states that he received information
from a confidential source that Plaintiff was being paid by APD to work as a reserve
officer or to perform police work. Wilham submitted a request to the City of
Albuquerque for public records and reviewed some of Plaintiff’s time sheets as well
as court and arrest records. During his deposition, Wilham testified that he created a
spreadsheet from which he concluded that Plaintiff received overtime pay in the
amount of $12,666.94 as a reserve officer.
{60} 	The time sheets, arrest records and court documents Defendants presented show
that Plaintiff made arrests during periods of time for which he was claiming civilian
overtime. For example, Plaintiff’s time sheet for May 31, 2007, shows that between
7:30 a.m. and 4:00 p.m. Plaintiff worked eight hours in his civilian capacity. Plaintiff
also logged six hours of overtime that day. Assuming the overtime began at the end
of Plaintiff’s normal shift, Plaintiff would have worked overtime in his civilian
capacity between 4:00 p.m. and 10:00 p.m. An offender booking sheet from the
Bernalillo County Detention Center reflects that Plaintiff made an arrest on May 31,
2007, at 7:15 p.m. Defendants presented similar documentation for approximately
twenty dates between May 2007 and July 2009. Plaintiff and one SID supervisor both

51
admit in their deposition testimony that these documents create the appearance that
at the time Plaintiff made some arrests, he was also claiming civilian overtime.
{61} 	Similarly, there is overlap between the civilian overtime claimed on Plaintiff’s
time sheets and the reserve officer hours logged on his reserve officer activity report.
For example, Plaintiff’s time sheet for September 10, 2008, shows that between 7:30
a.m. and 4:00 p.m. Plaintiff worked eight hours in his civilian capacity. Plaintiff also
logged eight hours of overtime that day. Again, assuming the overtime began at the
end of Plaintiff’s normal shift, Plaintiff would have worked overtime in his civilian
capacity between 4:00 p.m. and 12:00 a.m. on September 11, 2008. A report detailing
Plaintiff’s reserve officer activity shows that Plaintiff worked as a reserve officer for
eight hours September 10, 2008. Unless Plaintiff worked twenty-four straight hours
on that day, logic would dictate that some of his reserve time would have overlapped
with his civilian time.
{62} 	Wilham testified that he requested an interview with Plaintiff to discuss the
subject matter of his articles, but that he did not hear back. According to Wilham’s
discovery responses, the purpose of the request was simply to obtain an interview, not
to request an interview in order to verify specific facts for his articles. In his
deposition, Plaintiff testified that he did not contact Wilham because he was instructed
not to speak with the press.

52
{63} 	Wilham also stated that one week before the first article was published, he met
with the chief of police and informed the chief of what he thought he had. APD
internal documents indicate that APD began investigating the situation concerning
Plaintiff and his overtime. In a memorandum to the chief of police detailing the
investigation, the investigating lieutenant reported that Plaintiff was permitted to
collect overtime as a reserve officer and as an undercover detective. The investigator
determined that Plaintiff worked 106 hours of overtime as an undercover detective for
which he received $2,696.64 in overtime pay. In a separate report, one APD deputy
chief reported that Plaintiff’s supervisor authorized payment to Plaintiff for reserve
officer work “allow[ing] the roles of a paid civilian to blur with that of a reserve
officer.”
{64} 	Concerning the effect that the articles had on his reputation, Defendants
presented an excerpt from Plaintiff’s deposition in which Plaintiff, when asked, was
unable to name anyone who thought less of him as a result of the articles.
2. 	Plaintiff’s Evidence
{65} 	In response to Defendants’ motion for summary judgment, Plaintiff was
required to “demonstrate the existence of specific evidentiary facts which would
require trial on the merits.” Durden, 2012-NMSC-010, ¶ 5 (internal quotation marks
and citation omitted). Plaintiff was also required to show that any alleged defamatory

53
statements were false. Garrison, 379 U.S. at 74; UJI 13-1002(B)(4); UJI 13-1006.
Plaintiff’s evidence consisted of a sworn affidavit by Plaintiff; excerpts from the
deposition testimony of Plaintiff, Wilham, and two of Plaintiff’s APD supervisors;
and a spreadsheet created by Wilham containing his calculations of the overtime pay
received by Plaintiff.
{66} 	In his deposition testimony, Plaintiff explains that even though his time sheets
appear to show overlap between reserve time and civilian time, he actually adjusted
his time entries so that he did not get paid for reserve time. As we previously noted,
to do this Plaintiff subtracted any time during his shift that was spent performing
reserve officer duties from the total hours reported by adjusting the time he logged at
the end of his shift. According to Plaintiff, it took him approximately thirty minutes
to make an arrest, which he accounted for by documenting the end of his shift as thirty
minutes prior to the time he actually ended his shift on that day. Two of Plaintiff’s
supervisors, in their deposition testimony, confirm that Plaintiff’s hours were adjusted
in this manner to account for reserve time. The supervisors also state that the practice
of adjusting hours was an accepted practice within SID and APD.
{67} 	Wilham’s spreadsheet, from which he calculated $12,666.94 in overtime pay
Plaintiff received for reserve officer duties, includes information for approximately
sixty-seven dates between January 2008 and July 2009. For each date the spreadsheet

54
reflects the amount of overtime logged, the corresponding amount of overtime pay
based on Plaintiff’s hourly wage, a description of Plaintiff’s assignments for the
overtime periods, and information regarding any arrests that were made during the
overtime periods. In an affidavit, Plaintiff states that the spreadsheet reflects the total
amount of overtime he worked in his civilian capacity from January 2008 to July 2009
and does not include any overtime for performing reserve officer duties. Plaintiff also
disputes the accuracy and authenticity of the reserve officer activity report, claiming
that he did not create or approve of the document.
{68} 	With regard to the harm to his reputation, in his affidavit Plaintiff states that
because of Defendants’ articles, he was suspended from the reserve officer program
and has been denied reinstatement because he is now perceived as “the guy who
wrecked the reserve officer program.”
3. 	Summary Judgment Merits
{69} 	By moving for summary judgment, Defendants bore the burden of showing that
Plaintiff failed to produce proof of actual malice. See Ammerman, 1977-NMCA-127,
¶ 14. Defendants have not met this burden.
{70} 	“ ‘Actual malice’ . . . means that [Defendants made] statements with knowledge
of their falsity or with reckless disregard of whether they were true or false. ‘Reckless
disregard’ means evidence that [Defendants] had a high degree of awareness of

55
probable falsity, . . . but nevertheless [published] the statements.” Id. ¶ 16. As to the
truth or falsity of the statements, Defendants’ summary judgment evidence tends to
show that Plaintiff received some overtime pay in connection with his reserve officer
work. However, the affidavits and deposition testimony presented by Plaintiff create
a factual question as to the amount of overtime pay he actually collected and whether
it was for reserve officer work or civilian work. The obvious difficulty in this case is
the impossibility of objectively verifying Plaintiff’s time. This is something
Defendants should have recognized, and may have apparently done so by leaving the
$12,000 amount out of the subsequent articles, and by not relying on Wilham’s
spreadsheet in support of their motion for summary judgment. This is also an issue
worthy of a jury’s consideration. Similarly, with respect to Defendants’ evidence on
the injury to the reputation element of defamation, and the unreasonable and highly
objectionable publicity element of false light invasion of privacy, I would conclude
that Defendants have not demonstrated that the material facts are undisputed. See
Durden, 2012-NMSC-010, ¶ 5.
{71} 	The primary question at this juncture is whether the district court erred in
granting summary judgment based on its finding that Defendants acted without actual
malice in publishing the $12,000 statements. Under the heightened malice standard
“the defendants’ state of mind was of central importance.” Marchiondo, 1982-NMSC-

56
076, ¶ 18 (internal quotation marks and citation omitted). In other words, what
Defendants knew or suspected concerning the truth of the statements when they were
published is key. See Ammerman, 1977-NMCA-127, ¶ 16 (recognizing that actual
malice involves the making of statements despite having knowledge of their falsity,
a high degree of awareness of probable falsity, or serious doubts as to the truth of the
statements (internal quotation marks omitted)).
{72} 	In the present case, the record indicates that Wilham reviewed Plaintiff’s time
sheets and payroll information, as well as court documents and arrest records, and that
those documents appear to show that Plaintiff was accruing overtime at the same time
that he was performing reserve officer duties. And although Wilham requested
interviews, neither Plaintiff nor his supervisors were immediately available to
comment on the issue. Defendants argue that this evidence supports their assertion that
they acted without malice, believing that the overtime statements were true or
substantially true. The majority suggests that Defendants’ unsuccessful attempts to
interview Plaintiff or those familiar with Plaintiff’s job description, activities, and
payroll are sufficient to allow the publication of the $12,000 amount, and if the
information was incorrect, Plaintiff’s failure to cooperate automatically entitles
Defendants to the defense of ignorance. Majority Op. ¶ 38. Because the evidence
shows that Wilham was not attempting to verify or confirm specific information or

57
facts, the majority has essentially shrouded Defendants with immunity from liability
for defamation. However, “absolute protection for the communications media requires
a total sacrifice of the competing value served by the law of defamation.” Gertz, 418
U.S. at 341. There has to be some sort of balance between any constitutionally
protected speech, responsible reporting, and the laws of defamation.
{73} 	Defendants’ evidence indicates that at the time the statements were published,
Defendants believed that Plaintiff had received overtime pay for reserve officer work.
However, Defendants’ spreadsheet is the only evidence of what they “believed”
Plaintiff received for reserve officer work and that was in excess of $12,000. There is
nothing in the record to establish what information Wilham used of all the documents
he gathered, how he interpreted the information, and how he used it for each of his
entries in the spreadsheet. It is Wilham’s spreadsheet that creates the questions as to
how that figure was derived, thereby creating a question of fact as to whether
Defendants acted with a high degree of awareness of probable falsity. Ammerman,
1977-NMCA-127, ¶ 16.
{74} 	Nonetheless, Defendants argue that the evidence supports their contention that
they acted without malice, believing the statements to be substantially true. I
understand Defendants to argue that their state of mind with regard to the $12,000
figure is immaterial.

58
{75} 	In order to show the absence of malice, Defendants do not have to show that
they believed the statements to be absolutely true in every minute detail. See Masson,
501 U.S. at 517. It is sufficient to show that the defendants believed their statements
not to contain material falsehoods or to be substantially true. See id. at 516-17. In
considering the material falsity or the substantial truth of a statement, we consider
whether “the substance, the gist, the sting of the libelous charge be justified.” Id. at
517 (internal quotation marks and citation omitted). Material falsity and substantial
truth are two sides of the same coin. The plaintiff, in order to show malice, must show
that the defendant knew or suspected the statement to be materially false. Id. Where
the defendant has the burden of showing the absence of malice on a motion for
summary judgment, for example, the defendant must show that in publishing the
statement he believed it to be substantially true. See id. A statement may be considered
substantially true if it produces the same effect on the mind of the recipient, which the
pleaded truth would have produced. See id. ( “[A] statement is not considered false
unless it would have a different effect on the mind of the reader from that which the
pleaded truth would have produced.” (internal quotation marks and citation omitted)).
{76} 	Thus, in order to show that summary judgment was appropriate Defendants
were required to present evidence as to their state of mind with regard to the $12,000
figure. See Marchiondo, 1982-NMSC-076, ¶ 22 (recognizing that under the malice

59
standard of the New York Times and its progeny, proof regarding the conduct and state
of mind of the defendant is essential). In determining whether Defendants’ state of
mind concerning the $12,000 figure is material, compare the substance of Defendants’
statements with and without the figure. The statements that “[w]hile acting as a cop,
[Plaintiff] has also made more than $12,000 in overtime working warrant sweeps,
stakeouts, undercover prostitution stings, and making arrests[,]” would have a
different effect on the mind of the reader than a statement that “[w]hile acting as a
cop, [Plaintiff] has made overtime working warrant sweeps, stakeouts, undercover
prostitution stings and making arrests.” The former statement carries a stronger
implication that Plaintiff intentionally lied on his time sheets in order to receive a
sensational amount of overtime pay, over $12,000 to which he was not entitled.
Whereas the latter statement leaves room in the mind of the reader as to the amount
of overtime pay Plaintiff inappropriately received, which turned out to be $2,696.64.
{77} 	Defendants deny the existence of malice, yet, they fail to attribute the basis for
their $12,000 statements. More importantly, Defendants dropped the specific dollar
amount out of subsequent articles published within the two month time frame, and
never relied on it in defense of the case. Whether summary judgment is precluded
under such circumstances “turn[s] on the particular facts which exist therein.”
Coronado Credit Union, 1982-NMCA-176, ¶ 26. The particular facts in this case are

60
that the extraordinary amount of overtime pay reported by Defendants in this case is
material.
{78} 	Here, material issues of fact exist as to the truthfulness of the statements
concerning the actual amount Plaintiff collected in overtime pay. The truth or more
appropriately the inaccuracy of these statements must be determined at trial. “In the
absence of a showing of privilege, the existence of malice is a fact question, and is not
a question of law to be decided on summary judgment.” Id. Defendants have not
shown in their motion for summary judgment that they in fact had any documents or
news source that established that Plaintiff had in fact made more than $12,000 for
performing reserve officer duties, nor did Defendants publish the statements as
privileged statements of opinion. The $12,000 figure appeared in the first two articles
and one editorial. However, even in the editorial, the $12,000 is asserted as a fact, and
not as part of the opinions expressed in the piece. Nowhere in the record do
Defendants argue that the $12,000 was expressed as an opinion. Their argument lies
in the materiality of the fact.
{79} 	Viewing the evidence, as we must, in the light most favorable to Plaintiff, and
drawing all reasonable inferences in support of a trial on the merits I would conclude
that summary judgment on the issue of malice was premature, at least with regard to
the statements referencing the $12,000 in overtime pay. See Marchiondo, 1982-

61
NMSC-076, ¶ 22 (holding that the trial court erred in ruling at the summary judgment
stage that the defendants acted without actual malice absent evidence concerning the
defendants’ state of mind, i.e., the thoughts and editorial processes on which the
statements were based).
CONCLUSION
{80} 	On Plaintiff’s defamation and false light claims arising from the specific
$12,000 statements, I would reverse the district court’s judgment and remand for
further proceedings.
M. MONICA ZAMORA, Judge