O'Connor v. Burningham

2007 UT 58
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Michael P. O’Connor, No. 20060090
Plaintiff and Appellant,
v.
Gary W. Burningham, Jeanna
Burningham, Sandy Phillips, Ruby
Ray, Drew Downs, Curt Parke,
Julie Parke, Mike Powell, Barbara
Powell, Steve Davis, Jan Davis,
Todd Kirkpatrick, Sue Chandler,
Dallie Haderlie, Wendy Haderlie,
John C. Rogers, Kenny Norris,
Robyn Norris, Will Sunderland,
Darlene Durrant, Robert T. Price,
Kim M. Price, Kent Beckstead,
Suzanne Beckstead, Lisa Gray,
Jessica Johnsen, Jeff Burningham,
Sheldon Worthington, Blair Swenson,
Paula Swenson, John Jex, F I L E D
and John Does 1-50,
Defendants and Appellees. July 31, 2007
---
Fourth District, Provo Dep’t
The Honorable James R. Taylor
No. 040402938
Attorneys: Joseph C. Rust, Matthew G. Bagley, Salt Lake City,
for plaintiff
Harold L. Peterson, Salt Lake City, for defendants
Gary and Jeanna Burningham
Michael W. Homer, Jesse C. Trentadue, John D. Luthy,
Salt Lake City, for all other defendants
Michael T. McCoy, Clover Meaders, Murray, for amicus
Utah Education Ass’n
---

1 Ms. Harrison, who left Lehi High School after Mr.
O’Connor’s dismissal as the women’s basketball coach, was named
Utah’s Division 3A Most Valuable Player in 2006 and competed as a
member of Stanford University basketball team during the 2006-
2007 season.
No. 20060090 2
NEHRING, Justice:
¶1 More than forty years have passed since the United
States Supreme Court placed public officials on notice that they
could seek redress for defamatory statements made about them only
if actual malice animated those statements. See N.Y. Times Co.
v. Sullivan, 376 U.S. 254 (1964) (involving a Montgomery, Alabama
commissioner whose duties included the supervision of the police
department). What the Court did not announce at the time,
however, was the full roster of public officials, leaving
considerable uncertainty over who qualified as a public official
and who did not. Cf. Rosenblatt v. Baer, 383 U.S. 75, 85 (1966)
(indicating New York Times did not determine the “‘categories of
persons who would or would not be included’” (quoting 376 U.S. at
284 n.23)).
¶2 Today we hold that a women’s high school basketball
coach is not a public official and that, therefore, defamatory
remarks made about such a coach are not entitled to heightened
constitutional protection. We further hold that the defendants,
who made statements that the coach contends are defamatory, enjoy
a conditional privilege. We therefore reverse the district
court’s grant of summary judgment in favor of the defendants and
remand this case for further proceedings consistent with this
opinion.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 Michael O’Connor was the women’s basketball coach at
Lehi High School, located in a small, northern Utah town. In the
fall of 2003, Michelle Harrison enrolled at the high school.
From all accounts Ms. Harrison possessed basketball talent that
placed her among the elite of high school basketball players
nationwide.1 Her arrival, however, did not herald the beginning
of a basketball dynasty at the school, nor did the considerable
basketball skill disparity between Ms. Harrison and her Lehi
teammates foster a desirable team chemistry. Whatever the causes
may have been, that all was not well in the Lehi Pioneers’ locker
room soon became evident and, this spelled trouble for
Mr. O’Connor.

3 No. 20060090
¶4 Commencing in November 2003 and continuing until the
school dismissed Mr. O’Connor as the women’s basketball coach
before the start of the 2004-2005 school year, certain parents,
extended family members, and friends of basketball team members
(whom we will collectively refer to as the Parents as that is the
term the parties chose for their own briefing) undertook a
persistent and multifaceted campaign of complaints against
Mr. O’Connor. They criticized his coaching demeanor. They
questioned his use of money allocated to the team for travel and
other team expenses. They accused him of extending unfair
preferential treatment to Ms. Harrison both on and off the
basketball court. They claimed that he had improperly recruited
a player from another school.
¶5 Mr. O’Connor’s detractors took their grievances to the
school principal and administrators. Dissatisfied with the
school administration’s determination that Mr. O’Connor had done
nothing wrong and put off by the principal’s letter setting out
ground rules for complaining about the coach, the Parents
directed their complaints to a new audience: the Alpine School
Board. Although the school board took no formal action against
him, the high school administration dismissed Mr. O’Connor from
his role as the women’s basketball coach and cited as grounds for
its decision his refusal to promise that he would not deny team
membership and playing time to the women in retaliation against
the Parents.
¶6 Mr. O’Connor sued the Parents for defamation. The
Parents successfully moved for summary judgment before the
district court based on their contention that Mr. O’Connor was a
public official and, consequently, could not proffer a case for
defamation without demonstrating that the Parents made their
statements with actual malice--a showing the record did not
permit. Mr. O’Connor appealed.
ANALYSIS
I. MR. O’CONNOR AS A WOMEN’S HIGH SCHOOL BASKETBALL COACH IS NOT
A PUBLIC OFFICIAL
¶7 The central question before us--whether Mr. O’Connor is
a public official--is an inquiry mandated by federal First
Amendment principles announced by the United States Supreme
Court. See, e.g., Monitor Patriot Co. v. Roy, 401 U.S. 265
(1971); Ocala Star-Banner Co. v. Damron, 401 U.S. 295 (1971); St.
Amant v. Thompson, 390 U.S. 727 (1968); Curtis Publ’g Co. v.
Butts, 388 U.S. 130 (1967); Rosenblatt v. Baer, 383 U.S. 75
(1966); N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964).

No. 20060090 4
¶8 A central maxim of these cases is that in the realm of
defamation law all persons are not treated equally. Those who by
choice or mishap acquire the status of a public official or
public figure surrender a sizeable measure of their right to
recover damages from those who defame them. Statements directed
against public officials or public figures require proof that the
speaker acted with actual malice and is thus more at “fault” than
one whose defamatory statements were the product of a less
malignant state of mind. See, e.g., N.Y. Times, 376 U.S. at 279
(“[C]onstitutional guarantees require . . . prohibit[ing] a
public official from recovering damages for a defamatory
falsehood relating to his official conduct unless he proves that
the statement was made with ‘actual malice’--that is, with
knowledge that it was false or with reckless disregard of whether
it was false or not.”). The heightened burdens placed on public
officials and public figures by the First Amendment define the
limits of recovery under state defamation laws.
¶9 The Supreme Court justified its decision to disqualify
public officials from recovering for defamatory statements that
would be actionable if made against private citizens by recalling
our nation’s unfortunate experience with attempts to muzzle
speech critical of office holders. As the Supreme Court saw
matters, to permit civil money damage awards against a public
official was to tolerate a practice too reminiscent of the
sanctions on expression imposed by the odious Sedition Act, ch.
74, 1 Stat. 596 (1798). See generally N.Y. Times, 376 U.S. at
296 (Black, J., concurring) (“[Congress] did pass the Sedition
Act in 1798, which made it a crime--“seditious libel”--to
criticize federal officials or the Federal Government. . . .
[T]hat Act came to an ignominious end and by common consent has
generally been treated as having been a wholly unjustifiable and
much to be regretted violation of the First Amendment.”). The
lessons provided by the Sedition Act and other attempts by those
entrusted with power to silence their critics were not lost on
the Supreme Court. See, e.g., id. at 297 (Black, J., concurring)
(“I doubt that a country can live in freedom where its people can
be made to suffer physically or financially for criticizing their
government, its actions, or its officials. ‘For a representative
democracy ceases to exist the moment that the public
functionaries are by any means absolved from their responsibility
to their constituents; and this happens whenever the constituent
can be restrained in any manner from speaking, writing, or
publishing his opinions upon any public measure, or upon the
conduct of those who may advise or execute it.’” (quoting Sir
George Tucker, Blackstone’s Commentaries *297 (1803))).
¶10 This court has applied the public official principle,
albeit clumsily as we shall discuss shortly, in deciding

5 No. 20060090
defamation cases in which the defendants sought refuge in the
First Amendment. We have not adopted the public official rubric
as an interpretive guidepost to the Utah Constitution, but have
instead elected to embrace the Supreme Court’s defamation
jurisprudence as our own. See generally West v. Thomson
Newspapers, 872 P.2d 999, 1008 n.13 (Utah 1994) (“Utah’s ‘fault’
requirement . . . is derived from First Amendment standards.”);
Seegmiller v. KSL, Inc., 626 P.2d 968, 971-72 (Utah 1981)
(grounding public official and public figure analysis in federal
First Amendment jurisprudence).
¶11 The Supreme Court’s recognition of the “public
official” concept in New York Times appeared in the first of a
brisk series of pronouncements on the proper relationship between
the First Amendment and the right to protect reputation from
defamatory assaults. It was followed in short order by Garrison
v. Louisiana, 379 U.S. 64 (1964), Baer in 1966, and Butts in
1967. New York Times shielded those who directed comments at
public speakers from liability for all expression except for that
made with actual malice, or with either knowledge of or reckless
disregard for the statement’s falsity. 376 U.S. at 280. The
Court was less clear, however, in setting out just who a public
official might be, noting that the case did not occasion them “to
determine how far down into the lower ranks of government
employees the ‘public official’ designation would extend for
purposes of this rule, or otherwise to specify categories of
persons who would or would not be included.” Id. at 284 n.23. A
comprehensive definition of public official continues to escape
courts, and this open question is precisely the one that we are
called upon to answer here.
¶12 The Court first attempted to fill the gap in Baer by
providing functional guidance that a public official exists for
the purposes of New York Times “[w]here a position in government
has such apparent importance that the public has an independent
interest in the qualifications and performance of the person who
holds it, beyond the general public interest in the
qualifications and performance of all government employees.”
Baer, 383 U.S. at 86. Both the Parents and Mr. O’Connor claim
victory under a proper application of this guideline. For
reasons to which we now turn our attention, we refuse to classify
Mr. O’Connor’s position as one endowed with “apparent importance”
and therefore decline to extend public official status to a high
school basketball coach.
¶13 Decided in the term immediately following Baer, Butts
created a constitutional public figure category to complement the
public official category. 388 U.S. at 155. While both public
figures and public officials surrender the same degree of

No. 20060090 6
protection to their reputations in the interest of unfettered
public expression, they remain separate legal categories. Cf.
id. at 164 (Warren, C.J., concurring) (“It is plain that although
they are not subject to the restraints of the political process,
‘public figures,’ like ‘public officials,’ often play an
influential role in ordering society. And surely as a class
these ‘public figures’ have as ready access as ‘public officials’
to mass media of communication; both to influence policy and to
counter criticism of their views and activities.”). Had the
Supreme Court deemed Wally Butts, the defamed plaintiff and
University of Georgia athletic director, a public official, we
would have been more sympathetic to the Parents’ contention that
the Lehi High School women’s basketball coach should qualify as
well. Although Mr. Butts was not technically a state employee,
the Court nevertheless balked at finding that he, as the athletic
director of a major public university, fell within the grasp of
the public official standard even in the face of arguments that
“the public interest in education in general, and in the conduct
of the athletic affairs of educational institutions in
particular, justifies constitutional protection.” Id. at 146;
see also id. at 154 (explaining that because Mr. Butts did not
have “any position in government which would permit a recovery by
him to be viewed as a vindication of governmental policy,” his
case could not “be analogized to prosecutions for seditious
libel” and “none of the particular considerations involved in New
York Times [was] present”). The Parents advance a similar
argument in this case, which gives us pause.
¶14 Chief Justice Warren’s concurring opinion in Butts
explains to our satisfaction why the athletic director of a major
state university, an individual who occupied a position of
prominence immeasurably greater than a high school basketball
coach, would not qualify as a public official even had the
technicality that made Mr. Butts a private employee not
intervened. To the Chief Justice, expansion of the New York
Times protections was justified, even mandated, by the increasing
delegation to private entities of functions traditionally and
exclusively within the province of government. On this point, he
observed that, in our increasingly complex society, “policy
determinations which traditionally were channeled through formal
political institutions are now originated and implemented through
a complex array of boards, committees, commissions, corporations,
and associations, some only loosely connected with the
Government.” Id. at 163 (Warren, C.J., concurring). With regard
to individuals, he noted that “[t]his blending of positions and
power has also occurred . . . so that many who do not hold public
office . . . are nevertheless intimately involved in the
resolution of important public questions or, by reason of their

7 No. 20060090
fame, shape events in areas of concern to society at large.” Id.
at 163-64.
¶15 A high school basketball coach--indeed any high school
athletic coach--does not ply his trade in a realm occupied by the
same public and private actors whose labors caught Chief Justice
Warren’s attention. We view the constitutional standard for
public official announced by the Supreme Court to be limited to
those persons whose scope of responsibilities are likely to
influence matters of public policy in the civil, as distinguished
from the cultural, educational, or sports realms. The “apparent
importance” of a position in government sufficient to propel a
government employee into a public official status has nothing to
do with the breadth or depth of the passion or degree of interest
that the government official might ignite in a segment of the
public. Nor is celebrity, for good or ill, of the government
employee particularly relevant. Rather, it is the nature of the
governmental responsibility that guides our public official
inquiry. The public official roster is comprised exclusively of
individuals in whom the authority to make policy affecting life,
liberty, or property has been vested. Likewise, only those
issues that have such bearing on civil life as to fairly touch on
matters that in the eyes of the law concern life, liberty, or
property may be traced to the actions of a public official. So
viewed, high school athletics can claim no “apparent importance.”
The policies and actions of the coach of any high school athletic
team does not affect in any material way the civic affairs of a
community--the affairs most citizens would understand to be the
real work of government.
¶16 This is not to say that high school athletics is of no
importance to any sphere of human activity. High school coaches
can be significant figures in a student’s life. A coach’s skill,
or absence of it, can profoundly shape the future and fortune of
a young person. Moreover, because parents are often witnesses to
the athletic performances of their children, in contrast to the
relative anonymity in which students display their academic feats
of skill, parents experience directly the joys, sorrows, and
injustices of athletic competition. One would not expect the
vitriol directed at Mr. O’Connor to be targeted at the faculty
advisor to the Latin club.
¶17 Evidence of the expanding media presence and public
allure of high school athletics is impossible to avoid. USA
Today publishes national rankings of players, coaches, and teams
in virtually every high school sport offering. Sports
Illustrated recently added several pages of high school coverage
to its weekly menu of sports reporting. These examples and
countless others provide ample cause to conclude that high school

No. 20060090 8
athletics has claimed an ever-more prominent position in the
arena of entertainment and popular culture. These examples do
not, however, advance the case for treating coaches as public
officials. To be sure, many public officials populate the public
education arena. But these employees occupy supervisory and
policy-making positions more comprehensive than the role of a
coach or teacher. When these educational officials assumed their
duties, they likely surrendered no small portion of their ability
to protect their reputations. Coaches and teachers struck no
such bargain.
¶18 The Parents point to this court’s opinion in Madsen v.
United Television, Inc., 797 P.2d 1083 (Utah 1990), in aid of
their contention that the attention Ms. Harrison’s presence on
the team attracted was itself sufficient to launch Mr. O’Connor
into the status of a public official--even if he was able to
enjoy the status of a private person during the years he coached
Lehi’s teams comprised of lesser mortals. Unfortunately, Madsen
is the source of more confusion than enlightenment on the subject
of who qualifies as a public official.
¶19 Mr. Madsen was a police officer who killed a man while
in the line of duty. He sued the owner of a television station,
claiming that its coverage of the shooting defamed him. The
trial court concluded that the station was entitled to a
qualified privilege based on Officer Madsen’s “public” status,
and we affirmed. We did not exercise particular care in
identifying what kind of “public” man Officer Madsen was, and
when all was said and done, we conferred the “public official”
designation on him. We reached our conclusion, however, by
evaluating Officer Madsen’s status using the standards for a
public figure. In fact, we unhelpfully conflated public
officials and public figures and treated the two concepts as if
no difference existed between them in the eyes of the First
Amendment. Id. at 1084. We did so despite the clear injunction
to the contrary by the United States Supreme Court in Baer that
to be treated as a public official “[t]he employee’s position
must be one which would invite public scrutiny and discussion of
the person holding it, entirely apart from the scrutiny and
discussion occasioned by the particular charges in controversy.”
383 U.S. at 86 n.13.
¶20 When presented with the opportunity in subsequent
cases, we have attempted to correct the analytical errors made in
Madsen. For example, in Russell v. Thomson Newspapers, Inc., 842
P.2d 896 (Utah 1992), we sought to provide guidance to the bench
and bar by offering observations concerning the distinction
between public and private figures. Id. at 903 n.20. Among our
observations was the recognition that Madsen may have been in

9 No. 20060090
error when it implied that a person who would not otherwise
qualify for public official status may nevertheless acquire it
based on events that occurred while performing his duties. This
was indeed the implication of Madsen where we declined to hold
that all police officers were public officials, but determined
that a police officer who was involved in a line of duty shooting
could, and did, become a public official. This proposition is
wrong. Public officials owe their status to the duties demanded
by their official positions, not to the vagaries of events that
may occur while they occupy these positions. Unlike the status
of public figure, the law does not recognize subclassifications
of “general purpose public official” or “limited purpose public
official.” Id. Either one is a public official or one is not.
The Parents’ decision to rely on Madsen, though understandable,
was ill-advised.
¶21 Madsen’s continued presence in our defamation canon
might also explain why the district court used the language of
public official and public figure interchangeably. The district
court’s reasoning appeared to focus on Mr. O’Connor’s status as a
public official, however. This emphasis on public official
carried over to the parties’ briefing of this appeal. Although
the parties have included references to the concept of public
figure in their briefs, the only analysis is directed at
Mr. O’Connor as a public official. We have therefore restricted
our discussion to that topic as well. To avoid further
misunderstanding concerning the circumstances under which a
person may acquire the status of a public official, we overrule
Madsen insofar as it purports to provide guidance on this
question.
II. WE DECLINE TO DETERMINE WHETHER THE PARENTS’ STATEMENTS ARE
SUSCEPTIBLE TO DEFAMATORY MEANING
¶22 The Parents invite us to affirm the district court’s
grant of summary judgment on the alternative grounds that none of
their statements is susceptible to a defamatory interpretation
and that, even if a statement might yield a defamatory
interpretation, one or more privileges shielded the statement due
to the setting in which it was communicated. Because the
district court relied on neither of these alternative grounds in
reaching its conclusion that the Parents were entitled to summary
judgment, Mr. O’Connor urges us to decline this invitation.
¶23 Although the district court did not analyze in its
memorandum decision whether the statements were susceptible to a
defamatory interpretation or whether they were privileged, the
court was clearly aware of both questions, noting that they
presented “key questions” of law that “must be answered by the

No. 20060090 10
[c]ourt before a case may be submitted to the jury.” Our
authority to affirm a district court’s judgment on grounds other
than those relied on by that court derives from a “long-standing
rule.” Cox v. Hatch, 761 P.2d 556, 561 (Utah 1988); see also
West v. Thomson Newspapers, 872 P.2d 999, 1013 n.22 (Utah 1994);
Higgins v. Salt Lake County, 855 P.2d 231, 241 (Utah 1993); cf.
Coulter & Smith, Ltd. v. Russell, 966 P.2d 852, 856 n.1 (Utah
1998). While we possess the authority to review the matters
constituting the alternative grounds for affirmance urged by the
Parents, we are not obligated to exercise this authority. In
this instance, we decline to take up the merits of the Parents’
claim that Mr. O’Connor failed to establish that their comments
were subject to defamatory interpretation. This decision is a
prudential one.
¶24 Inasmuch as we decline to become the first court in the
litigation to determine whether the defendants’ statements are
susceptible to defamatory meaning, we find it prudent to explain
how the district court should approach this issue in the event
that the question is presented for summary determination after
remand. Our past experience reviewing claims of defamatory
meaning brought to us on appeal from a grant of summary judgment
suggests that we use an analytical approach different from the
traditional approach to judging the merits of summary judgment.
Although we realize that in general the standard protocols for
reviewing summary judgment apply to defamation cases, see West,
872 P.2d at 1003-04, the presence of the First Amendment demands
a subtle although significant variation in the treatment of
inferences drawn from undisputed facts. An examination of West
will illustrate this distinction.
¶25 In West, we reversed a court of appeals’ determination
that three newspaper editorial columns, containing accusations
that the mayor of La Verkin, Utah, was, among other things,
“manipulating the press,” were incapable of sustaining a
defamatory meaning. Id. at 1000. When it reviewed the district
court’s grant of summary judgment in favor of the alleged
defamers, the court of appeals looked to dictionary definitions
of “manipulate,” located one featuring negative connotations, and
ruled that use of the word was therefore susceptible to
defamatory interpretation. Id. at 1008. The court of appeals’
approach was a wholly defensible application of the summary
judgment review principle that a court must construe against the
party seeking summary judgment inferences reasonably emanating
from the factual record. “Manipulate” has several decided
meanings, at least one of which is unflattering and susceptible
to a defamatory interpretation. It is entirely understandable
that the court of appeals would conclude that the question of

11 No. 20060090
whether the newspapers’ accusations constituted defamation should
be left to the trier of fact. We nevertheless disagreed.
¶26 We said that the court of appeals’ “approach
effectively eviscerate[d] the court’s responsibility to determine
initially if the statement is defamatory as a matter of law.”
Id. at 1009 n.15. Because the existence of defamatory content is
a matter of law, a reviewing court can, and must, conduct a
context-driven assessment of the alleged defamatory statement and
reach an independent conclusion about the statement’s
susceptibility to a defamatory interpretation. This is not to
say that the responsibility of determining whether a statement is
defamatory as a matter of law falls to the reviewing court. In
the first instance, it does not. Rather, the reviewing court
must answer the question of defamatory susceptibility as a matter
of law in a nondeferential manner.
¶27 This task leaves no room for indulging inferences in
favor of the nonmoving party in the district court. It must
weigh competing definitions and make sense of context.
Admittedly, a court typically avoids these activities when
evaluating a motion for summary judgment. Defamation merits a
departure from the standard treatment, however, primarily because
it never arrives at court without its companion and antagonist,
the First Amendment, in tow. See, e.g., Jensen v. Sawyers, 2005
UT 81, ¶ 50, 130 P.3d 325 (“Defamation claims always reside in
the shadow of the First Amendment. . . . In reaching an
accommodation consistent with freedom of speech, defamation has
accumulated a considerable assortment of defenses, privileges,
heightened burdens of proof, and particularized standards of
review.”). To accommodate the respect we accord its protections
of speech, the First Amendment’s presence merits altering our
customary rules of review by denying a nonmoving party the
benefit of a favorable interpretation of factual inferences. Cf.
Roth v. United States, 354 U.S. 476, 497-98 (1957) (Harlan, J.,
dissenting).
III. ALTHOUGH THE PARENTS’ STATEMENTS ARE INELIGIBLE FOR THE
PROTECTION OF THE ABSOLUTE JUDICIAL PROCEEDING PRIVILEGE, THEY
ARE PROTECTED BY A CONDITIONAL PRIVILEGE
A. Application of the Absolute Judicial Proceeding Privilege
¶28 The Parents have also invited us to affirm the district
court on the alternative ground that their statements were not
actionable because they were protected by either an absolute or
conditional privilege. We consider here whether the Parents’
statements qualify for protection under an absolute or

No. 20060090 12
conditional privilege and will consider each privilege claim in
turn.
¶29 When circumstances mandate wholly open, frank, and
unchilled communication, the law readjusts the scales that
balance the right to free expression with the interest in
protecting one’s reputation. See, e.g., DeBry v. Godbe, 1999 UT
111, ¶ 10, 992 P.2d 979. The scales tip most heavily in favor of
unfettered expression when we confer an absolute privilege on the
speaker. We extend absolute privileges “to persons whose special
position or status requires that they be as free as possible from
fear that their actions in their position might subject them to
legal action.” Allen v. Ortez, 802 P.2d 1307, 1311 (Utah 1990).
Participants in judicial proceedings are among those who qualify
for such a privilege against defamation. Id.
¶30 The Parents claim absolute sanctuary within this
privilege. It is specifically bestowed upon those who make
statements “during or in the course of a judicial proceeding” and
exists for the purpose of preserving both the integrity of the
judicial proceeding and the associated quest for the
ascertainment of truth that lies at its heart. Id. It is not
inimical to this objective that speakers may express false
statements, even those uttered with ill motives, within judicial
proceedings free of the risk that tort will hold them to account.
The system achieves a satisfactory measure of confidence that the
search for truth has been fruitful when all who claim to possess
part of or the entire truth may freely disclose the basis of that
claim.
¶31 The judicial proceeding privilege has three elements.
First, the alleged defamatory statement must have been made
during or in the course of a judicial proceeding. Second, the
statement must have some reference to the proceeding’s subject
matter. Third, the party claiming the privilege must have been
acting in the capacity of a judge, juror, witness, litigant, or
counsel in the proceeding at the time of the alleged defamation.
Id. at 1313; see also Pratt v. Nelson, 2007 UT 41, ¶¶ 27-31, ___
P.3d ___ (applying the judicial proceeding privilege in the
context of a complaint); Riddle v. Perry, 2002 UT 10, ¶ 13, 40
P.3d 1128 (discussing the privilege, its elements, and its
furthered public policies as akin to that of the legislative
proceeding privilege); Krouse v. Bower, 2001 UT 28, ¶ 8, 20 P.3d
895 (applying the privilege in the context of a published demand
letter); Allen, 802 P.2d at 1311-13 (reviewing the history to
date of Utah jurisprudence surrounding the privilege). The
statements attributed to the Parents fail on all counts.

13 No. 20060090
¶32 Our view of the forums and events that are entitled to
designation as judicial proceedings is an expansive one. Pratt,
2007 UT 41, ¶ 29; see also DeBry, 1999 UT 111, ¶ 14 (“[T]he
requirement that the defamatory statement must be made in the
course of a judicial proceeding requires a broad interpretation
of the term ‘judicial proceeding.’”). Even under the broadest
definition of the term, however, the Parents give us scant reason
to deem remarks made by several of their number during the
“Community Comment” portion of an Alpine School District Board
meeting as falling within any quasi-judicial function of the
school board. Although the school board may have the authority
to conduct quasi-judicial proceedings under certain
circumstances, the record here makes clear that no such
proceeding was underway or even contemplated when the statements
were made. In the absence of a pending proceeding, the Parents’
statements could not possibly satisfy the privilege’s second
element: that the content of the statements related to the
subject matter of the proceeding.
¶33 A comparison of the Parents’ appearance at the school
board meeting with the facts in Allen is instructive. In Allen,
we reversed a grant of summary judgment in favor of a clinical
social worker who had sent letters to a mayor and a domestic-
relations commissioner, alleging that a child’s mother and
stepfather had sexually molested the child. 802 P.2d at 1308.
The mother had previously filed a petition to modify her custody
and visitation rights. Believing the child to have been abused,
the child’s father solicited the letters detailing the social
worker’s affirming conclusions. We held that the social worker
was ineligible for the privilege because she failed to satisfy
its third element: when she made her statements, she was not, as
a matter of law, acting as a witness in a judicial proceeding.
For purposes of the privilege, a witness must be more than a
person with sufficient expertise in or knowledge of a matter to
be of some potential benefit. We were troubled that a contrary
view would permit individuals, on their own initiative, to
“direct libelous communications to a participant or decision
maker in a litigation with impunity.” Id. at 1313. The judicial
system, even when broadly defined, “does not demand such
license.” Id. We decline to extend that license to the Parents
here. We believe that the objectives of the absolute, judicial
proceeding privilege are at odds with permitting unsolicited
communication of defamatory statements to an entity that has
undertaken no “judicial proceeding.” We therefore hold that the
absolute privilege is inapplicable to the statements made by the
Parents.

No. 20060090 14
B. The Conditional Privilege for Family Relationships
¶34 The Parents also claim a conditional privilege. Like
absolute privileges, qualified privileges take numerous forms.
The Parents ask us to extend to them conditional protection for
communications that contain information relating to intra-family
relationships, a privilege Utah has not yet formally recognized.
Cf. Restatement (Second) of Torts § 597 (1977) (detailing the
intra-family relationship privilege).
¶35 In Brehany v. Nordstrom, Inc., 812 P.2d 49 (Utah 1991),
we awarded our approval to a similar conditional privilege that
concerned a business, as distinguished from a familial,
relationship. It was a retail-clothing employer that made the
defamatory statements in Brehany when explaining to its managers
and buyers that it had terminated the plaintiffs for conduct
violating the drug policy; we held that these statements were
privileged. We grounded our recognition of the conditional
privilege on the existence of an employer’s legitimate interest
in disseminating its intention to enforce its drug policy.
¶36 Because we find little justification to deny
relationships in the familial setting the same legitimacy we
granted in Brehany to those in the business world, we take this
occasion to incorporate Restatement (Second) of Torts, section
597 into Utah’s defamation jurisprudence. Section 597, entitled
“Family Relationships,” states:
(1) An occasion makes a publication
conditionally privileged if the circumstances
induce a correct or reasonable belief that
(a) there is information that affects
the well-being of a member of the
immediate family of the publisher, and
(b) the recipient’s knowledge of the
defamatory matter will be of service in
the lawful protection of the well-being
of the member of the family.
(2) An occasion makes a publication
conditionally privileged when the
circumstances induce a correct or reasonable
belief that
(a) there is information that affects
the well-being of a member of the
immediate family of the recipient or of
a third person, and
(b) the recipient’s knowledge of the
defamatory matter will be of service in

15 No. 20060090
the lawful protection of the well-being
of the member of the family, and
(c) the recipient has requested the
publication of the defamatory matter or
is a person to whom its publication is
otherwise within generally accepted
standards of decent conduct.
Restatement (Second) of Torts § 597.
¶37 Although we hold that Mr. O’Connor’s position as coach
of the Lehi High School women’s basketball team was not of such
civic importance as to render him a public official, we conclude
that the Parents possess a legitimate interest in affairs of the
basketball team of such a degree as to demand that we grant their
statements the “breathing space” afforded by section 597. It is
important to note that our reference to the Parents in this
context is not limited to immediate family members of basketball
team members, but also includes statements made by third parties
so long as the statements were published “within the generally
accepted standards of decent conduct” under the conditional
privilege described in section 595 and recognized by this court
in Brehany. See Restatement (Second) of Torts § 595(1)(b);
Brehany, 812 P.2d at 58. This standard does not shield
defamatory statements that abuse the conditional privilege, but
it does protect those defendants who are not immediate family
members of women on the team. The Parents may have abused and
therefore lost this conditional privilege as a refuge if, for
example, they knew their statements regarding Mr. O’Connor were
false or acted with a reckless disregard as to their falsity, see
Restatement (Second) of Torts § 600, exceeded the privilege’s
purpose in making their statements, see id. § 603, or made
statements to an individual or in a manner not reasonably
believed to be necessary for the accomplishment of the
privilege’s purpose, see id. §§ 604, 605, 605A. See also Hales
v. Commercial Bank, 197 P.2d 910, 913 (Utah 1948) (“‘The
publisher’s lack of belief in the truth of the defamatory matter
published, or his lack of reasonable grounds for so believing,
while immaterial to the existence of the privileged occasion, is
important as constituting an abuse of the occasion which deprives
him of the protection which it would otherwise afford.’” (quoting
Restatement of Torts § 594 cmt. b (1938))). Although we have not
yet had occasion to formally adopt all the potential means to
abuse the privilege cited in the Restatement, they all enjoy
close ties to common sense and thus appear worthy of our
confidence.
¶38 Whether a statement is entitled to the protection of a
conditional privilege presents a question of law; whether the

No. 20060090 16
holder of the privilege lost it due to abuse presents a question
of fact. Wayment v. Clear Channel Broad., Inc., 2005 UT 25,
¶ 53, 116 P.3d 271; Brehany, 812 P.2d at 58; Combes v. Montgomery
Ward & Co., 228 P.2d 272, 274-75 (Utah 1951). The district
court’s ruling did not address this conditional privilege issue
and, therefore, did not consider whether Mr. O’Connor
sufficiently carried his burden to demonstrate the existence of a
genuine factual issue regarding the Parents’ abuse of their
privilege. Consistent with our authority to affirm a district
court on alternative grounds, we could canvass the record and
make this determination in the first instance. Instead, we elect
to cede this task to the district court as we have ceded the task
of ascertaining the susceptibility of the Parents’ statements to
defamatory meaning.
CONCLUSION
¶39 We hold that Mr. O’Connor, as a women’s high school
basketball coach, is not a public official for purposes of
defamation law, and we therefore reverse the district court’s
award of summary judgment in favor of the Parents. We decline to
address the merits of the Parents’ claim that their statements
are not subject to defamatory interpretation, but provide
guidance as to the proper method for considering such a claim.
Although we hold that the allegedly defamatory statements do not
qualify for protection under the absolute judicial proceeding
privilege, we formally recognize today a conditional privilege
for communications relating to familial relationships. We remand
to the district court for proceedings consistent with this
opinion.
---
¶40 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Parrish concur in Justice Nehring’s
opinion.