Jacob v. Bezzant

1 The Utah Legislature recodified this section in 2008. No
(continued...)
2009 UT 37
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
William T. Jacob, an individual; No. 20060856
Commercial Properties, Inc.,
a Utah corporation; and Phillips
Manufacturing Company, Inc.,
a Utah corporation,
Plaintiffs and Appellants,
v.
B. Brett Bezzant, an individual;
Newtah, Inc., dba American Fork
Citizen New Utah, a Utah F I L E D
corporation; and Does I-X,
Defendants and Appellees. June 16, 2009
---
Fourth District, Provo Dep’t
The Honorable Fred D. Howard
No. 000403530
Attorneys: Randall K. Spencer, Jennifer K. Gowans, Provo, for
plaintiffs
Jeffrey J. Hunt, David C. Reymann, Salt Lake City,
for defendants
---
NEHRING, Justice:
INTRODUCTION
¶1 William Jacob appeals a district court ruling that
summarily dismissed his defamation action against Brett Bezzant.
The central legal issue which we will resolve is whether Utah’s
Citizen Participation in Government Act, Utah Code Ann. §§ 78B-6-
1401 to -1405 (2008),1 also known as the Anti-SLAPP Act,2 shields

1 (...continued)
substantive changes were made from the earlier version, and
therefore we cite to the current codification.
2 SLAPP is an acronym for a Strategic Lawsuit Against Public
Participation.
No. 20060856 2
Mr. Bezzant from Mr. Jacob’s claims. We disagree with the
district court and hold that it does not. We were also asked to
examine the district court’s award of attorney fees to Mr.
Bezzant and its dismissal of Mr. Jacob’s defamation action. We
reverse the district court’s award of fees under the Anti-SLAPP
Act but affirm the district court’s dismissal of Mr. Jacob’s
defamation action and the award of attorney fees under 42 U.S.C.
§ 1988(b). Finally, we were asked to address whether Utah’s
Anti-SLAPP Act violates the open courts clause of the Utah
Constitution. Because Mr. Jacob raised this argument for the
first time on appeal and because nothing in the argument meets
the threshold of exceptional circumstances, we will not address
this issue.
BACKGROUND
¶2 In 1992, American Fork City adopted Ordinances No. 92-
05-20 and 92-05-21, which govern city employees. The ordinances
stirred debate over whether they prohibited certain city
employees from holding a seat on the city council. In 1997, the
American Fork City attorney submitted a legal opinion to city
officials concluding that the ordinances did not bar city
employees from running for seats on the city council. The city
attorney’s legal opinion did not, however, end the debate in the
minds of some, including Mr. Jacob. In 1999, Tom Hunter, who had
served as a health insurance consultant for American Fork City,
and Rick Storrs, who was an EMT working part-time for the city’s
ambulance service, decided to seek seats on the city council.
The presence of Mr. Hunter’s and Mr. Storrs’ names on the ballot
sparked controversy from those, including Mr. Jacob, who believed
that the men’s relationships with the city created conflicts of
interest of such a degree that both should be disqualified from
seeking office. Once the objections to their candidacies became
known, Mr. Hunter and Mr. Storrs sought and received the city
council’s permission to continue their quests for seats on the
council. Newspapers published articles about the potential
conflicts of interest, opinions were voiced about the topic to
the city council, and citizens publicly questioned Mr. Hunter
about the issue.

3 No. 20060856
¶3 Approximately a week before the election, Mr. Jacob
prepared and paid for a political advertisement flyer in the
American Fork Citizen New Utah!, a local weekly newspaper. Mr.
Jacob’s advertisement appeared in the Citizen’s last issue before
the election and claimed that, notwithstanding the city
attorney’s opinion and the city council’s blessing of their
candidacy, the ordinances prohibited Mr. Hunter and Mr. Storrs
from holding office as city council members because they were
city employees. The advertisement did not contain Mr. Jacob’s
name but instead was titled, “Nonpartisan Citizens Group
Information Bulletin.”
¶4 When Mr. Hunter and Mr. Storrs saw Mr. Jacob’s
advertisement, they complained to the Citizen’s editor, Mr.
Bezzant. Mr. Hunter and Mr. Storrs felt the advertisement
contained false information and were frustrated because they
would not have the opportunity to rebut it in the Citizen prior
to the election. Mr. Bezzant then paid for and published an
“Urgent Election Notice,” which contained an apology to Mr.
Hunter and to Mr. Storrs and reasserted that the ordinances did
not bar the men’s eligibility to run for the city council. The
Election Notice also disclosed Mr. Jacob’s identity as the author
of the advertisement. Mr. Jacob claimed that the following four
excerpts contained defamatory language.
(1) In fairness to Mr. Hunter and his candidacy, New
Utah! apologizes for distributing this flyer without
giving Mr. Hunter the opportunity to respond to what we
believe is false and misleading information regarding
his service to American Fork City.
(2) Mr. Jacob’s flyer is falsely labeled as a
“nonpartisan” group. Since American Fork no longer has
political parties, there is no such thing as a
“nonpartisan” group.
(3) Unfortunately, this flyer is a classic example of
negative campaigning intended to hurt one candidate in
order to favor another. We believe it hurts the entire
process.
(4) Again, we apologize to Candidates Hunter and Storrs
for distributing this misinformation.
Mr. Bezzant had the Election Notice distributed by mail and hand
delivery to American Fork residents, which included the mayor and
the city council members. Additionally, Mr. Bezzant posted the
Election Notice on the newspaper’s website. After receiving Mr.
Jacob’s bulletin, but before the print copy of Mr. Bezzant’s

No. 20060856 4
Election Notice was circulated, a citizen attempted to bring up
the subject of Mr. Jacob’s bulletin during the public comment
period of a city council meeting regarding fire and ambulance
services but was specifically informed that no questions on the
subject would be entertained.
¶5 Mr. Hunter and Mr. Storrs both won seats on the city
council. After the election, Mr. Jacob sued Mr. Bezzant for
defamation. After a series of motions, Mr. Bezzant responded to
Mr. Jacob’s Amended Complaint by asserting in his Answer and
Counterclaim that he was shielded from liability by Utah’s Anti-
SLAPP Act. Utah Code Ann. §§ 78B-6-1401 to -1405 (2008). More
motions followed, including a rejected attempt by Mr. Jacob to
remove the case to federal court. It was not until 2004 that the
district court issued its opinion granting Mr. Bezzant’s Motion
for Judgment on the Pleadings and/or Motion for Summary Judgment
and denying Mr. Jacob’s Motion to Dismiss Counterclaim. The
court noted the following in its holding that Mr. Jacob violated
the Anti-SLAPP Act:
[T]he evidence presented to this Court
intimates that Jacob filed the litigation at
issue for the purpose of chilling Bezzant’s
political speech and thereby preventing or
interfering with Bezzant’s proper
participation in the process of government.
The lengthy procedural history set forth in
. . . this opinion supports the proposition
that Jacob intended to use this litigation as
a means of punishing Bezzant for Bezzant’s
publication of the political speech contained
in the election notice.
Following the dismissal of Mr. Jacob’s claims, only Mr. Bezzant’s
counterclaims remained. Mr. Bezzant then filed a Motion for
Partial Summary Judgment in which he sought an award of attorney
fees and costs under Utah Code section 78B-6-1405(1)(a). The
district court granted Mr. Bezzant’s motion. Consistent with our
decision in Anderson Development Co. v. Tobias, 2005 UT 36, ¶ 48,
116 P.3d 323, the district court only awarded fees and costs that
were incurred after the effective date of the Anti-SLAPP Act,
which was April 30, 2001. Mr. Jacob now appeals to us for
relief. We have jurisdiction to hear this matter under the
authority granted us in Utah Code section 78A-3-102(3)(j) (2008).
DISCUSSION
¶6 Mr. Jacob asks us to review five issues. These are (1)
whether Mr. Bezzant’s Election Notice was “participat[ion] in the

5 No. 20060856
process of government” and thus shielded by the Anti-SLAPP Act,
Utah Code Ann. §§ 78B-6-1401 to -1405 (2008); (2) whether the
district court erred in awarding attorney fees and costs to Mr.
Bezzant under the Anti-SLAPP Act; (3) whether the district court
abused its discretion when it awarded Mr. Bezzant attorney fees
as the prevailing party on a civil rights claim under 42 U.S.C.
§ 1988; (4) whether the district court erred in dismissing Mr.
Jacob’s claims of defamation and false light because he failed to
state a claim; and (5) whether Utah’s Anti-SLAPP Act is
unconstitutional as applied to this case under the open courts
clause of the Utah Constitution. We will address each of these
issues in turn.
I. UTAH’S ANTI-SLAPP ACT DOES NOT SHIELD MR. BEZZANT FROM MR.
JACOB’S LAWSUIT
¶7 By its terms, Utah’s Anti-SLAPP Act applies to an
action that is “primarily based on, relates to, or is in response
to an act of the defendant while participating in the process of
government.” Utah Code Ann. § 78B-6-1403(1) (2008). The Act
defines process of government as “the mechanisms and procedures
by which the legislative and executive branches of government
make decisions, and the activities leading up to the decisions,
including the exercise by a citizen of the right to influence
those decisions under the First Amendment to the U.S.
Constitution.” Id. § 78B-6-1402(5).
¶8 At its core, Mr. Jacob’s claim on appeal is that Utah’s
Anti-SLAPP Act does not apply to his suit against Mr. Bezzant.
The district court held that “Jacob filed the litigation at issue
for the purpose of chilling Bezzant’s political speech and
thereby preventing or interfering with Bezzant’s proper
participation in the process of government.” The district court
found that the Anti-SLAPP Act applied, impliedly holding that
political speech was participation in the process of government.
Whether the definition of process of government includes all
political speech is a question of statutory interpretation. We
review questions of statutory interpretation for correctness
without giving any deference to the lower court’s holding.
Carter v. Univ. of Utah Med. Ctr., 2006 UT 78, ¶ 8, 150 P.3d 467.
¶9 When the district court ruled on this case, it focused
on the fact that Mr. Bezzant’s Election Notice “merited First
Amendment protection” because it was “political speech”
discussing a “candidate’s qualifications for office.” Even so,
although the United States Supreme Court stated that “the
constitutional guarantee has its fullest and most urgent
application precisely to the conduct of campaigns for political
office,” Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971),

No. 20060856 6
and a California appellate court stated that “the anti-SLAPP law
protects statements made by a candidate for public office and his
supporters,” Beilenson v. Superior Court, 52 Cal. Rptr. 2d 357,
359 (Cal. Ct. App. 1996), all political speech involving
elections may not be encompassed by the plain language of Utah’s
Anti-SLAPP Act.
¶10 The district court ruled that Mr. Bezzant’s Election
Notice was participation in the process of government because it
was political speech regarding election issues; however, the
plain language of Utah’s Anti-SLAPP Act is not that broad. It is
not, for example, as broad as the California anti-SLAPP
provision, which makes “[a] cause of action against a person
arising from any act of that person in furtherance of the
person’s right of petition or free speech under the United States
or California Constitution in connection with a public issue”
subject to a special motion to strike. Cal. Civ. Proc. Code
§ 425.16 (Deering 2009). In contrast, Utah’s Anti-SLAPP Act
limits protection of citizen participation in the process of
government to “the exercise by a citizen of the right to
influence” decisions of the legislature or executive branch of
government. Utah Code Ann. § 78B-6-1402(5) (2008). Our only
holding interpreting the reach of the Anti-SLAPP Act’s public
participation in the process of government definition was in the
case of Anderson Development Co. v. Tobias, 2005 UT 36, 116 P.3d
323. Although the analysis in Anderson of what constitutes
participation in the process of government is brief, it is a
logical starting place for determining the limits of the Anti-
SLAPP Act.
¶11 In Anderson, we held that citizens publicly participate
in the process of government when an issue is before the city
council and the citizens voice their opinion about the issue to
the city council and distribute leaflets to city residents. 2005
UT 36, ¶ 50. In that case, a group of citizens opposed Anderson
Development’s proposal for a new zoning application to the South
Jordan City Council. Id. ¶ 3. The citizens met with government
officials, attended city council meetings, and distributed fliers
to city residents about their opposition to the proposed
development. Id. ¶¶ 3-5. After the city council approved the
zoning change, Anderson Development sued the citizens. Id. ¶ 12.
The citizens defended the suit in part with Utah’s Anti-SLAPP
Act. Id. ¶ 14. We held that the citizens’ “vocal opposition to
[the] zoning application, which was before the City Council[]
. . . [was] sufficient to establish the element of participation
in the process of government.” Id. ¶ 50.
¶12 Two important factual differences between this case and
Anderson merit our attention. First, in Anderson, the city

7 No. 20060856
council was clearly required to make a decision. It had to
decide whether or not to approve Anderson Development’s zoning
application, but the American Fork city council had already made
the decision that Mr. Hunter and Mr. Storrs were qualified
candidates. In 1997, the American Fork City attorney provided a
legal opinion stating that the office holder qualification
ordinance did not apply to city council members. The city
council followed this legal opinion before the 1999 election, and
it followed this precedent for the 1999 election. Second, in
Anderson, the citizens clearly intended to influence the city
council’s decision making. This was evidenced by the citizens
distributing flyers to city residents urging them to attend an
upcoming city council meeting and voice their opposition to
Anderson Development’s zoning application. Mr. Bezzant, however,
addressed his Election Notice to “All American Fork Residents,”
and because his speech occurred in connection with the election,
it appears that his intent was to provide what he viewed as the
correct application of a city ordinance in order to influence
voters rather than to influence the city council or the mayor.
Despite the circumstances surrounding the Election Notice, Mr.
Bezzant’s intent would be difficult to definitively pin down.
¶13 Ultimately, the plain language of the definition of the
process of government does not require that in all cases a party
intended his actions to influence executive and legislative
decision making. Rather, the language of the statute defines
process of government as “the mechanisms and procedures by which
the legislative and executive branches of government make
decisions, and the activities leading up to the decisions,
including the exercise by a citizen of the right to influence
those decisions under the First Amendment to the U.S.
Constitution.” Utah Code Ann. § 78B-6-1402(5) (emphasis added).
Exercising the right to influence decision making may involve
activities in addition to an intent to influence decision making.
¶14 In a broad sense, citizen participation in elections,
including voting and political speech, influences executive and
legislative decision making because government officials have the
chance to hear and consider the voice of the people as
demonstrated through the election process. We decline to
interpret the Act so broadly. We need not and do not attempt to
decide whether any speech beyond that at issue here is or is not
covered by the Act.
¶15 When the Utah Legislature wrote the Anti-SLAPP Act, it
was at liberty to define the scope of activities to be covered by
it. It was free to limit the Act’s applicability to particular
forums and to particular means of communication, but the
legislature did not choose to use either the setting or the means

No. 20060856 8
of communication as a criterion for assessing the applicability
of the Act. Rather, the Act is fashioned to link its
applicability to the context in which the action in question took
place: participating in the process of government by exercising
the right to influence legislative and executive decisions. The
legislative branch of government makes decisions by means of
votes cast by its elected representatives following deliberation
and debate. Similarly, the executive branch of government makes
decisions by signing or vetoing laws passed by the legislature
and executing the laws through rulemaking and the exercise of its
enforcement powers. Opinions and requests voiced by citizens are
part of that debate and are an exercise of the citizen’s rights
to influence those decisions. The legislative and executive
branches of government also make decisions when they decide
whether to address an issue in response to a specific request to
do so. An election, however, is not an exercise of the right to
influence legislative and executive decision making as required
by the Anti-SLAPP Act; rather, it reflects citizen decision
making in the process of government as distinguished from
executive and legislative decision making. That the Act does not
protect speech concerning citizen decision making is demonstrated
by the definition of “government” in the Act; it does not include
“candidates” or “elections.”
¶16 To determine whether a defendant’s speech was the
exercise of the right to influence legislative or executive
decision making under the First Amendment, we must examine both
the content of the speech and the context in which it was made.
Useful factors to consider in determining whether speech was an
exercise of the right to influence legislative or executive
decision making are whether the speech contained express or
implied intent to influence the decision-maker, whether a
decision-maker was aware of the speech, whether the decision-
maker was in the process of making a decision when the speech was
made, or whether the decision-maker considered the speech when
making the decision.
¶17 In this case, Mr. Bezzant’s speech, although part of a
public debate on the eligibility of candidates for office, was
not an exercise of his right to influence legislative or
executive decision making. The text of Mr. Bezzant’s Election
Notice apologizes to candidates Hunter and Storrs and clarifies
that, as far as Mr. Bezzant is aware, they are eligible to run
for city council. The Election Notice does not expressly request
that the executive or legislative branch of American Fork’s
government take any action. Nor can it be read to impliedly
request that government decision-makers act. It states that Mr.
Hunter and Mr. Storrs are eligible to run as fact rather than
suggesting that they should be allowed to run. Also, the record

9 No. 20060856
indicates that the decision-makers were not considering whether
to change their long-standing policy, under which Mr. Hunter and
Mr. Storrs were eligible to run. Finally, the mayor of American
Fork made it clear during a city council meeting that the
question of Mr. Hunter and Mr. Storrs’ eligibility for office
would not be addressed by the decision-makers. Later, he
testified that he was not even aware of Mr. Bezzant’s Election
Notice when he took that position. Examining the circumstances
in which the speech occurred and the content of the speech
together, it is clear that Mr. Bezzant’s Election Notice was not
an exercise of his right to influence a decision by a legislative
or executive branch of government. Rather, it provided
information useful to voters in choosing whom to vote for.
Because Mr. Bezzant’s Election Notice was not an exercise of his
right to influence a decision by a legislative or executive
branch of government, it was not participation in the process of
government and was not protected by the Anti-SLAPP Act. We
therefore reverse the district court’s holding on this issue.
Accordingly, we also reverse the district court’s award of
attorney fees to Mr. Bezzant under the Anti-SLAPP Act.
II. THE DISTRICT COURT CORRECTLY DETERMINED THAT THE CONTENT OF
THE ELECTION NOTICE DID NOT CONVEY A DEFAMATORY MEANING
¶18 We affirm the district court’s ruling that the Election
Notice did not convey a defamatory meaning, but before we speak
to this issue, we take a moment to clarify the standard of review
associated with defamation claims that are dismissed for failure
to state a claim. Mr. Jacob misstated the standard when he said
that all facts and reasonable inferences must be construed in a
light most favorable to him. Generally, when an appellate court
reviews the district court’s decision to grant a motion to
dismiss for failure to state a claim upon which relief may be
granted, “we accept as true all material allegations contained in
the complaint and all reasonable inferences drawn therefrom.”
West v. Thomson Newspapers, 872 P.2d 999, 1004 (Utah 1994). We
review these rulings under a correctness standard because whether
a particular array of allegations set out a cognizable cause of
action is purely a question of law. Id. When reviewing claims
of defamation, however, a reviewing court takes a slightly
different approach. As we stated in O’Connor v. Burningham, “the
presence of the First Amendment demands a subtle although
significant variation in the treatment of inferences drawn from
undisputed facts.” 2007 UT 58, ¶ 24, 165 P.3d 1214. The
reviewing court must look to the context of the allegedly
defamatory statement and then, in a nondeferential manner, “reach
an independent conclusion about the statement’s susceptibility to
a defamatory interpretation.” Id. ¶ 26. Whether a statement is
susceptible to a defamatory interpretation is a question of law.

No. 20060856 10
Id. Therefore, we cede no discretion to the district court’s
view on this question. Nor do we indulge Mr. Jacob by
interpreting inferences that may be reasonably drawn from the
statements in favor of a defamatory meaning. Id. ¶ 27. As we
stated in O’Connor, “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.” Id. Having stated the correct standard of review,
we turn to the merits of the issue.
¶19 The district court was correct when it held that Mr.
Jacob’s claims of defamation and false light lacked legal merit.
The district court based its decision on four independent legal
defects that it found in Mr. Jacob’s allegations. These defects
were (1) Jacob failed to adequately plead special damages,
(2) the allegedly defamatory statements are protected by Utah’s
public interest privilege, (3) the allegedly defamatory
statements do not convey defamatory meaning as a matter of law,
and (4) the allegedly defamatory statements are nonactionable
statements of editorial opinion. Any one of these defects would
be enough, by itself, to affirm the district court’s ruling on
defamation and false light. In his appeal, Mr. Jacob challenged
only two of the four defects found by the district court.
Notably, Mr. Jacob did not argue that the district court was
wrong when it found that the statements were protected by Utah’s
public interest privilege and that the statements were
nonactionable statements of editorial opinion. Because he has
not argued that the district court erred in making these
findings, Mr. Jacob concedes that his allegations of defamation
suffered from these defects and therefore lack legal merit. We
therefore need not address these two findings by the district
court. We will, however, take up Mr. Jacob’s claim that he did
not need to plead special damages because the alleged defamatory
statements were defamatory per se and the alleged defamatory
statements convey a defamatory meaning as a matter of law.
¶20 To begin, however, Mr. Jacob claims that the district
court applied the wrong standard when it granted Mr. Bezzant’s
motion for judgment on the pleadings. Under the Anti-SLAPP suit
statute, a district court, upon receipt of a motion for judgment
on the pleadings, shall stay discovery and then “hear and
determine the motion as expeditiously as possible with the moving
party providing by clear and convincing evidence that the primary
reason for the filing of the complaint was to interfere with the
first amendment right of the defendant.” Utah Code Ann. § 78B-6-
1404(1)(b) (2008). Mr. Jacob argues that he need only establish
a prima facie case to overcome the defendant’s motion. He rests
this assertion on a California case, Fleishman v. Superior Court,

3 California has broadly construed “public interest” in its
anti-SLAPP legislation to include not only legislative and
governmental matters, but also “private conduct that impacts a
broad segment of society and/or that affects a community in a
manner similar to that of a governmental entity.” Damon v. Ocean
Hills Journalism Club, 102 Cal. Rptr. 2d 205, 212 (Cal. Ct. App.
2000).
11 No. 20060856
125 Cal. Rptr. 2d 383 (Cal. Ct. App. 2002), interpreting
California’s anti-SLAPP law. California’s anti-SLAPP law, Cal.
Civ. Proc. Code § 425.16 (Deering 2009), however, is different
from our own and has been interpreted much more broadly.3 It
allows a plaintiff to merely present a prima facie case in order
to overcome a defendant’s motion to strike a SLAPP suit. Cal.
Civ. Proc. Code § 425.16(3); Fleishman, 125 Cal. Rptr. 2d at 387-
88. We need not rule on whether a prima facie case is sufficient
under Utah law to overcome a motion for judgment on the pleadings
because Mr. Jacob cannot even present a prima facie case.
¶21 A prima facie case for defamation must demonstrate that
“(1) the defendant published the statements [in print or orally];
(2) the statements were false; (3) the statements were not
subject to privilege; (4) the statements were published with the
requisite degree of fault; and (5) the statements resulted in
damages.” Oman v. Davis Sch. Dist., 2008 UT 70, ¶ 68, 194 P.3d
956 (alteration in original) (internal quotation marks omitted).
A prima facie case for false light requires a plaintiff to
demonstrate that (1) the defendant publicized a matter concerning
the plaintiff that placed the plaintiff before the public in a
false light, (2) the false light in which the plaintiff was
placed would be highly offensive to a reasonable person, and
(3) the defendant knew or recklessly disregarded the falsity of
the publicized matter and the false light in which the plaintiff
was placed. Stien v. Marriott Ownership Resorts, Inc., 944 P.2d
374, 380 (Utah Ct. App. 1997). “A false light claim is closely
allied with an action for defamation, and the same considerations
apply to each.” Id. (internal quotation marks omitted).
¶22 While it is undisputed that Mr. Bezzant published
statements about Mr. Jacob, there is no evidence that the
statements were false. Additionally, the statements were subject
to privilege. Because Mr. Jacob did not satisfy these two
elements, we need not consider fault or damages. Concerning the
falsity of the statements, the district court found that Mr.
Jacob did not provide evidence that Mr. Bezzant knew the
statements to be false. Instead, the district court found that
all of the evidence and facts supported the proposition that the
Election Notice’s interpretation of the city’s ordinances was the

No. 20060856 12
city’s official legal interpretation as rendered by the city’s
political officials and legal counsel. Additionally, the
district court found that all of the statements that Mr. Jacob
claims to be defamatory are nonactionable statements of editorial
opinion that cannot be verified as either true or false. Because
Mr. Jacob did not address this issue, we accept the statements as
nonactionable editorial content that are not statements of fact.
As a result, they cannot be verifiable as true or false.
¶23 By not fulfilling this element alone, Mr. Jacob’s
defamation claim cannot achieve prima facie status. We take this
time to affirm that Mr. Bezzant’s statements were subject to
privilege. Mr. Jacob was incorrect when he stated that the
district court erred when it concluded that the statements were
privileged. Mr. Jacob argues that defamatory publications
relating to matters of public interest that are directed at
private individuals are not privileged if the defendant was
negligent in printing the defamatory material. Mr. Jacob
confuses the issue of whether a statement is privileged with the
issue of a defendant’s standard of fault. In order to prove that
the defendant’s actions were defamatory, the plaintiff must show
the defendant possessed the requisite level of fault. See
Seegmiller v. KSL, Inc., 626 P.2d 968, 973 (Utah 1981) (holding
that “the necessary degree of fault which must be shown in a
defamatory action by a ‘private individual’ against the media in
negligence”). A defendant may avoid liability despite fault if
the statement is privileged. Id. at 977-78. If a conditional
privilege exists, the plaintiff must prove actual malice to
overcome it. Id. at 976.
¶24 The district court found, and we agree, that the
statements in the Election Notice are protected by Utah’s public
interest privilege. In Seegmiller, we stated that this privilege
applies “when there is a legitimate issue with respect to the
functioning of governmental bodies, officials, or public
institutions, or with respect to matters involving the
expenditure of public funds.” 626 P.2d at 978. Mr. Jacob
provides no evidence to refute the district court’s finding that
the Election Notice addressed the qualifications of Mr. Hunter
and Mr. Storrs for public office and was published in the midst
of a controversy over the qualifications of candidates. As a
result, we can only conclude that the statements are protected by
the public interest privilege.
¶25 To defeat this conditional privilege, Mr. Jacob must
prove that Mr. Bezzant’s “statements were made with ill will,
were excessively published, or [Mr. Bezzant] did not reasonably
believe his . . . statements were true.” See Russell v. Thomson
Newspapers, Inc., 842 P.2d 896, 905 (Utah 1992). The district

4 As opposed to slander, which is spoken.
13 No. 20060856
court found no evidence that Mr. Bezzant acted with ill will
toward Mr. Jacob. Nor did the district court find evidence that
the Election Notice was excessively published. Mr. Bezzant had
the Election Notice posted on the newspaper’s website and hand
delivered to residents of American Fork. As this was a city
election, distribution to city residents is not excessive.
Finally, the district court found no evidence that Mr. Bezzant
believed the statements to be false. On the contrary, he
believed, correctly, that the statements were in concurrence with
the city’s official interpretation of its ordinances. Because
the statements are not facts verifiable as true or false and were
privileged, we hold that Mr. Jacob cannot present a prima facie
case of defamation or false light.
¶26 Mr. Jacob also argues that he did not need to plead
special damages because the alleged defamatory statements were
defamatory per se. Because the Election Notice was written, it
falls under the category of libel.4 In Seegmiller, we noted that
“[l]ibel is classified per se if it contains defamatory words
specifically directed at the person claiming injury, which words
must, on their face, and without the aid of intrinsic proof, be
unmistakably recognized as injurious.” 626 P.2d 977 n.7
(internal quotation marks omitted). Traditionally, statements
that are defamation per se have been required to be false and
“allege criminal conduct on the part of the plaintiff or impute
the contracting of some loathsome disease, unchaste behavior (on
the part of a woman) or conduct which is incongruous with the
exercise of a lawful business, trade, profession, or office.”
Larson v. Sysco Corp., 767 P.2d 557, 560 (Utah 1989). The
district court found Seegmiller and Larson to be at odds.
Seegmiller advanced a more generous range of topics that might be
considered to be defamatory per se while Larson reaffirms the
traditional categories. The district court believed that in
Larson, we had rejected the Seegmiller standard in favor of the
more traditional categories. We do not find the two opinions in
conflict because the Larson categories merely define injurious
words as mentioned in Seegmiller. An extensive inquiry into
Seegmiller and Larson is unnecessary because Mr. Bezzant’s
Election Notice is not defamatory under either formulation of
defamation. We have also stated that “a statement is defamatory
if it impeaches an individual’s honesty, integrity, virtue, or
reputation and thereby exposes the individual to public hatred,
contempt, or ridicule.” West, 872 P.2d at 1008. Mr. Jacob
claims that Mr. Bezzant’s Election Notice made claims of
dishonesty and negative campaigning which have degraded him in
society and exposed him to public hatred, contempt, and ridicule.

No. 20060856 14
¶27 As we stated in the discussion of the standard of
review for defamation claims, understanding the context in which
the Election Notice was published is critical to evaluating its
defamatory potential. “A court simply cannot determine whether a
statement is capable of sustaining a defamatory meaning by
viewing individual words in isolation; rather, it must carefully
examine the context in which the statement was made, giving the
words their most common and accepted meaning.” Id. at 1009.
¶28 Mr. Bezzant’s Election Notice was prepared and
published in response to Mr. Jacob’s advertisement. The
advertisement challenged the eligibility of Mr. Hunter and Mr.
Storrs to run for office. It concluded that Mr. Hunter and Mr.
Storrs violated a city ordinance by seeking office. The
advertisement was clearly motivated by a desire to persuade
voters to reject the two men at the ballot box. The content of
the advertisement was unequivocally political. Mr. Bezzant’s
Election Notice was no less political. Its content rejected Mr.
Jacob’s charges and apologized to Mr. Hunter and Mr. Storrs for
mischaracterizing the men as being ineligible to run for the city
council.
¶29 Political speech enjoys the broadest protection under
the First Amendment. See Monitor Patriot Co. v. Roy, 401 U.S.
265, 271-72 (1971) (“And if it be conceded that the First
Amendment was fashioned to assure the unfettered interchange of
ideas for the bringing about of political and social changes
desired by the people, then it can hardly be doubted that the
constitutional guarantee has its fullest and most urgent
application precisely to the conduct of campaigns for political
office.” (citation and internal quotation marks omitted)).
Furthermore, as we stated above, the Election Notice constituted
an editorial, which is traditionally a source of political
invective. As we stated in West, “Newspaper readers expect that
statements in editorials will be more exaggerated and polemicized
than ‘hard news.’ Readers are therefore less likely to form
personal animus toward an individual based on statements made in
an editorial.” West, 872 P.2d at 1009. Mr. Jacob’s
advertisement and Mr. Bezzant’s Election Notice were political
statements made in a contentious campaign. The Election Notice
was an editorial published by a local newspaper and, in such a
context, was not likely to subject Mr. Jacob to hatred, contempt,
or ridicule. On the contrary, it was part of the healthy
political exchange that is the foundation of our system of free
speech and free elections. We therefore hold that the statements
in question are not defamatory per se.

15 No. 20060856
¶30 Finally, Mr. Jacob argues that the alleged defamatory
statements convey a defamatory meaning as a matter of law.
“Whether a statement is capable of sustaining a defamatory
meaning is a question of law . . . .” Id. at 1008. As we stated
above, the context of the speech is key to determining if the
statement is susceptible to a defamatory meaning. See O’Connor,
2007 UT 58, ¶ 26. As we have discussed, the statement came
within a heated political campaign. Furthermore, as Mr. Jacob
has conceded, the Election Notice was an editorial. As a result,
we do not find that the words used by Mr. Bezzant in his Election
Notice constitute defamation as a matter of law.
¶31 In conclusion, we find no defamatory content in the
Election Notice. Mr. Jacob failed to challenge the findings by
the district court that the statements were in a nonactionable
editorial and that they were protected under Utah’s public
interest privilege. Furthermore, Mr. Jacob’s claim does not
reach the threshold of prima facie case of defamation or false
light. Nor does Mr. Jacob adequately argue why the district
court was incorrect in finding that he did not plead special
damages and that the statements in the Election Notice did not
convey a defamatory meaning as a matter of law. As a result, Mr.
Jacob’s claims of defamation and false light are without merit.
III. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN AWARDING
MR. BEZZANT ATTORNEY FEES UNDER 42 U.S.C. § 1988(b)
¶32 The district court’s award of fees to Mr. Bezzant
pursuant to 42 U.S.C. § 1988(b) was not in error. A district
court’s award of attorney fees under this section is reviewed for
abuse of discretion. Robinson v. City of Edmond, 160 F.3d 1275,
1280 (10th Cir. 1998). Mr. Jacob argues that the district court
should not have awarded attorney fees to Mr. Bezzant when Mr.
Jacob’s 42 U.S.C. § 1983 claim was found to be without merit.
Mr. Jacob does not appeal the district court’s decision regarding
the § 1983 claim; rather, he argues only that the award of fees
was inappropriate. Section 1988(b) states that “[i]n any action
or proceeding to enforce a provision of section[] . . . 1983
. . . , the court, in its discretion, may allow the prevailing
party, other than the United States, a reasonable attorney’s fee
as part of the costs . . . .” 42 U.S.C. § 1988(b) (2000). Mr.
Jacob asserts that § 1988(b) includes an element of bad faith and
relies on a Tenth Circuit case in which the court stated that
when the plaintiff is pro se, an award of attorney fees under
§ 1988(b) should only be awarded if the action was meritless or
without foundation. See Houston v. Norton, 215 F.3d 1172, 1174
(10th Cir. 2000). Mr. Jacob’s argument fails. Nowhere does
§ 1988(b) suggest that bad faith is required. On the contrary,
attorney fees are presumptively awarded to the prevailing party

No. 20060856 16
unless special circumstances are present. Prince v. Tooele
County Hous. Auth., 834 P.2d 602, 604 (Utah Ct. App. 1992). Mr.
Jacob has not presented any special circumstances to us, and we
will not seek them out.
¶33 Mr. Jacob also attempts to argue that he stated a prima
facie case for a civil rights violation under § 1983. Rather
than offering any substantive legal argument, Mr. Jacob merely
makes claims of a conspiracy between Mr. Bezzant and various
American Fork public officials. “When a plaintiff in a § 1983
action attempts to assert the necessary ‘state action’ by
implicating state officials or judges in a conspiracy with
private defendants, mere conclusory allegations with no
supporting factual averments are insufficient; the pleadings must
specifically present facts tending to show agreement and
concerted action.” Scott v. Hern, 216 F.3d 897, 907 (10th Cir.
2000) (internal quotation marks omitted). We agree with the
district court that Mr. Jacob’s claims are nothing more than
conclusory allegations. In light of the district court’s ruling
in Mr. Bezzant’s favor on the § 1983 claim, it was well within
its discretion to award Mr. Bezzant attorney fees under
§ 1988(b).
IV. MR. JACOB’S CLAIM THAT UTAH’S ANTI-SLAPP ACT IS
UNCONSTITUTIONAL FAILS BECAUSE IT WAS RAISED HERE FOR THE FIRST
TIME AND THERE ARE NO EXCEPTIONAL CIRCUMSTANCES THAT ALLOW US TO
EXAMINE THE CLAIM
¶34 Mr. Jacob concludes his appeal by arguing, for the
first time, that Utah’s Anti-SLAPP Act violates the open courts
clause of the Utah Constitution. We will not address this
argument because we do not address arguments “brought for the
first time on appeal unless the [district] court committed plain
error or exceptional circumstances exist.” State v.
Nelson-Waggoner, 2004 UT 29, ¶ 16, 94 P.3d 186. Mr. Jacob does
not allege plain error by the district court but does argue that
we should review the claim under the exceptional circumstances
doctrine. The exceptional circumstances doctrine applies to rare
procedural anomalies, and “we have applied the exception
sparingly, reserving it for the most unusual circumstances where
our failure to consider an issue that was not properly preserved
for appeal would have resulted in manifest injustice.” Id. ¶ 23.
Such is not the case here. We find nothing in Mr. Jacob’s
argument that leads us to find an exceptional circumstance. We
therefore decline to address this issue.

17 No. 20060856
CONCLUSION
¶35 We hold that Utah’s Anti-SLAPP Act does not encompass
all political speech regarding election issues; rather, its
protection for political speech is limited to political speech
that is an exercise of a citizen’s First Amendment right to
influence legislative and executive decision making. In this
case, the context in which Mr. Bezzant’s Election Notice was
published and its content demonstrate that it was not an exercise
of his right to influence legislative and executive decision
making. On the issue of whether the Anti-SLAPP Act applies to
Mr. Jacob’s suit, we reverse the holding of the district court
and the award of costs and attorney fees under Utah Code section
78B-6-1405. We also hold that Mr. Jacob’s defamation claims are
without merit. Furthermore, we affirm the district court’s award
of costs and attorney fees pursuant to 42 U.S.C. § 1988(b).
Finally, we do not address Mr. Jacob’s argument that Utah’s Anti-
SLAPP Act violates the Utah Constitution because the argument was
raised for the first time on appeal and there are no exceptional
circumstances that allow us to review it.
---
¶36 Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Justice Parrish concur in Justice Nehring’s
opinion.