GROSSE, J.
¶ 1 Falsity is an element of a common law claim of defamation. But, a defendant against whom a defamation claim is asserted need not prove the literal truth of every defamatory statement. Rather, to prevail, a defendant need only show that the statement is substantially true or that the gist of the story, the portion that carries the "sting," is true. Here, the gist of the two stories KIRO TV, Inc. (KIRO) broadcast and published on its website about United States Mission Corporation (U.S. Mission) is true, even though some statements, such as that U.S. Mission "recruited" felons and sent "bevies" of felons into neighborhoods, may not be true. Accordingly, we affirm the trial court.
¶ 2 In February 2010, KIRO broadcast on television and published on its website a story authored by KIRO investigative reporter Chris Halsne. The story is entitled "Jailhouse Used To Find Door-To-Door Solicitors" and begins: "A transitional housing service in Seattle [US Mission] has been sending a bevy of historically violent felons, burglars and robbers to your house to collect money — and there isn't a thing you can do about it." The story describes how U.S. Mission was included on a list of places where inmates released from the King County Jail could look for housing. It also describes how, under a "pay-to-stay" plan, residents of U.S. Mission houses are required to solicit money door-to-door in order to remain living at the houses: "Operators typically load up a van-full of recent transients and known criminals, then drop them off in various neighborhoods. They are required to collect cash and checks to keep a roof over their heads." The story states that some residents of U.S. Mission are felons and also reports comments from persons who have had U.S. Mission residents solicit money at their homes.
¶ 3 In March 2010, KIRO broadcast and published a follow-up story, also written by Chris Halsne, with the headline "Homeless Charity Mandates Panhandling, Takes Big Cut." The story begins: "A KIRO Team 7 Investigation into door-to-door fund raising by the United States Mission prompts King County to sever ties with the program. But the charity's troubles might not end there." In the story, Halsne writes that what "really caught [KIRO's] attention" were "the multiple `disturbance' visits by police, dealing with the expulsion of house members" who failed to solicit enough money each day to remain in a U.S. Mission house. The story also states that the investigators "discovered the kinds of guys coming to your door are basically the kind right out of jail. Public records show house guests with records for assault, rape, kidnapping, attempted arson, and residential burglary."
¶ 4 In August 2010, U.S. Mission filed a complaint for defamation against KIRO. In October 2010, KIRO filed an answer and a motion to strike the complaint. The motion to strike was based on two alternative grounds — the anti-SLAPP statute
¶ 5 In February 2011, the trial court granted KIRO's motion to dismiss under CR 12(c) and dismissed U.S. Mission's complaint with prejudice. In its order of dismissal, the court stated: "The Court does not find it necessary to make any ruling on the defendant's motion to strike pursuant to RCW 4.24.525 and thus the Court does not address that alternate motion." US Mission filed a motion for reconsideration, and the trial court denied that motion. US Mission appeals the striking of its complaint, and KIRO
¶ 6 We must consider a motion for judgment on the pleadings under CR 12(c) as a motion for summary judgment under CR 56 if the trial court considers matters outside the pleadings in making its decision.
¶ 7 To establish a prima facie claim of defamation, a private plaintiff must show falsity, unprivileged communication, fault, and damages.
¶ 8 The element primarily at issue in this case is falsity. "Falsity in a classic defamation case is a false statement."
¶ 9 In its complaint, U.S. Mission alleges that KIRO's stories contain four false "gists" or "stings."
¶ 10 What constitutes the gist or sting of a story is a question for the court.
¶ 11 In its complaint, U.S. Mission characterizes the gist, or sting, of the stories differently and claims that four gists, as it characterizes them, are false. We disagree with U.S. Mission's characterizations. It claims that one gist of the stories is that "United States Mission deliberately recruited violent criminals to solicit donations to the organization." But the gist of the stories is not that the Mission "deliberately" seeks out violent criminals for solicitation purposes. The gist is that some of U.S. Mission's residents have prior felony convictions and that these residents, like all residents, engage in door-to-door solicitation.
¶ 12 Another alleged gist of the stories U.S. Mission claims is false is that it "deliberately employs known criminals to solicit donations as a tactic because use of such people to solicit donations is an effective means of threatening people with harm if they do not contribute." There are no statements of fact in either story about U.S. Mission using criminals to threaten people. One story contains a quotation from a "stay-at-home mom" who told an interviewer that she views persons coming to her door and asking her for donations as a threat. But this statement of opinion does not support U.S. Mission's assertion that one gist of the story is that it uses criminals to threaten people into donating money.
¶ 13 U.S. Mission alleges that another false gist of the stories is "that a significant proportion of its solicitors have criminal records as violent felons." The stories do not discuss the proportion of felons and nonfelons who live at U.S. Mission and solicit donations. The substance of the stories is that an unspecified number of felons, including felons convicted of violent crimes, live or have lived at U.S. Mission, not that a "significant proportion" of its solicitors are violent felons.
¶ 14 Finally, U.S. Mission alleges that an allegedly false gist of the stories is that U.S. Mission "falsely pretends to have a religious mission in order to escape government regulation." Again, we disagree that this is a gist of the stories. One story states the following with regard to the religious aspect of U.S. Mission's activities: "Right now, the Mission says the government can't regulate their door-to-door solicitation because of religious free speech. Seattle's licensing division has reportedly opened an investigation anyway." The same article contains a quote from a former resident that there was no religious aspects to U.S. Mission during the time he lived there. The other story states: "United States Mission operators call their solicitors `emissaries of Christ.' Homeowners in this neighborhood say nobody mentioned religion." The article also contains a statement, best characterized as a statement of opinion, that the fact that homeowners reported that none of the residents mentioned religion while soliciting "raises the question if this organization might be shrouding their panhandling in religious free speech. That prevents them from being regulated like other businesses going door to door." These are the only statements that mention religion in either article. Only the statement of opinion comes close to conveying that U.S. Mission "pretends" to be
¶ 15 In its complaint, U.S. Mission alleges that several assertions in the stories are themselves false and therefore defamatory. We address only those assertions about which U.S. Mission argues on appeal.
¶ 16 U.S. Mission argues that the term "undercover" gives the impression that U.S. Mission had something to hide and that Halsne was forced to go undercover to reveal its secret. We disagree. The common and ordinary meaning of "to go undercover" is to engage in a secret investigation without the knowledge of the person or entity being investigated. This is what Halsne did with respect to his investigation of U.S. Mission and its practice of accepting as residents persons with prior convictions and its practicing of sending these residents and residents with no prior convictions into neighborhoods to solicit donations. The statement that Halsne went undercover to investigate U.S. Mission is not false. Whether this statement left a negative impression is of no relevance in terms of a defamation claim. "[A] plaintiff may not base a defamation claim on the negative implication of true statements."
¶ 17 U.S. Mission fails to include the fact that this sentence begins with "Police records show...." The police record contains a certification for determination of probable cause of the release of this person showing that he lived in U.S. Mission's Seattle home from at least September 30, 2004 until October 30, 2004. The statement in KIRO's article is not false.
¶ 18 U.S. Mission does not dispute the fact that it drove its residents into neighborhoods so they could solicit donations. Nor does it dispute that some of its residents are persons with criminal convictions and/or transients. And it does not dispute that this is how it places its residents in neighborhoods. US Mission has not shown the falsity of this statement.
¶ 19 Paragraphs 3.10, 3.11, and 3.12 of U.S. Mission's complaint refer to comments that appear in the first story made by residents who had U.S. Mission residents solicit money at their homes. There is nothing in the record to suggest that KIRO made up these comments or misreported them or that the speakers were lying. US Mission has not shown that these statements are false and, accordingly, has not shown that they are defamatory.
¶ 20 A record from the King County Sheriff's Office shows that Wilson was convicted in November 1986 of second degree rape. A Seattle Police Department certificate for determination of probable cause, dated March 23, 2009, states that Wilson last registered with the King County Sheriff's Office in June 1998 and listed his address as the U.S. Mission's Seattle house. This statement in KIRO's story is not false.
¶ 21 There is nothing in the record to prove or disprove the truth of the statement that the U.S. Mission refers to its
¶ 22 This is a statement of opinion. A statement of opinion is not actionable as defamatory.
¶ 23 The actual statement is that the investigators "discovered the kinds of guys coming to your door are basically the kind right out of jail." Putting the phrase "right out of jail" in the context of the rest of the sentence and the substance of the stories, there is no defamation. "[B]asically the kind right out of jail" can be taken as either an opinion or a generalization of the kind of persons who use U.S. Mission as transitional housing. As an opinion, the statement cannot be defamatory. As a fact, the statement is not false because it is undisputed that some of the residents come there upon being released from jail.
¶ 24 U.S. Mission alleges that statements in KIRO's stories that contain these words are, because of these words, false and defamatory. In defamation actions, we must give words their natural and obvious meaning.
¶ 25 Moreover, where, as here, the stories contain true statements, the fact that the statements in which these words appear may be false does not end the inquiry.
"Where a report contains a mixture of true and false statements, a false statement (or statements) affects the `sting' of a report only when `significantly greater opprobrium' results from the report containing the falsehood than would result from the report without the falsehood."
¶ 26 U.S. Mission argues that use of the term "bevy" connotes that it deliberately sent a large number of violent felons into neighborhoods to solicit money. We agree that the natural and obvious meaning of the term "bevy" suggests a large number.
¶ 27 U.S. Mission takes issue with the phrase "plenty of felons." In its natural meaning, "plenty" connotes a large or ample amount. Even if the statement is false because "plenty of felons" did not reside at U.S. Mission's house, the records on which the reporter relied show that persons convicted of the listed crimes did in fact reside at the house. Again, we cannot conclude that this statement altered the sting of KIRO's stories. We agree with the trial court that, "[e]ven if it was a hundred people with eight felons, ... that would [not] have had a materially adverse impact on the viewer."
¶ 28 U.S. Mission claims that it does not "recruit" felons. We agree with U.S. Mission that the term "recruit" suggests a deliberate seeking out of individuals. There is no evidence in the record that U.S. Mission actively sought felons to become residents in its housing facilities. Again, however, this statement does not alter the sting of KIRO's stories, which is that some of U.S. Mission's residents are or were felons and that all residents of U.S. Mission's housing facilities are required to, and do, solicit donations door-to-door in residential neighborhoods.
¶ 29 When viewed out of the context of the entire story, the headline suggests that U.S. Mission intentionally sought inmates to become residents and engage in door-to-door solicitation. But, when viewed in the context of the entire story, the headline does not alter the sting of the story. Nor does the headline add to the harm of the true parts of the story, which are that persons with felony and non-felony convictions reside and resided at U.S. Mission's house and that all residents are required to engage in door-to-door solicitation in order to reside at the facilities.
¶ 30 In response to arguments KIRO makes in its respondent's brief, U.S. Mission argues for the first time in its reply brief that the statements in the two stories are not privileged and that it adequately alleged damages. The trial court did not
¶ 31 U.S. Mission includes in its statement of facts a discussion of reporter Chris Halsne's "history of reckless false reporting." These assertions, even if true, have no bearing on the merits of U.S. Mission's defamation claim.
¶ 32 In addition to a dismissal under CR 12(c), KIRO sought dismissal of U.S. Mission's complaint under RCW 4.24.525, the anti-SLAPP statute. That statute allows a party to bring a special motion to strike a claim that is based on an action involving public participation and petition.
¶ 33 A party bringing a special motion to strike has the initial burden of showing by a preponderance of the evidence that the claim is based on an action involving public participation and petition. If the moving party meets this burden, then the responding party must establish by clear and convincing evidence a probability of prevailing on the claim. If the responding party meets this burden, the court must deny the motion to strike.
¶ 34 The trial court granted KIRO's motion to strike under CR 12(c) and specifically did not rule on whether dismissal under RCW 4.24.525 was or was not warranted. Nevertheless U.S. Mission presents arguments on appeal as to why its complaint should not be dismissed under the statute. It raised these arguments below in its response to KIRO's motion to strike. First, it argues that the statute does not apply to KIRO's stories because U.S. Mission's defamation claim is not based on an action involving public participation and petition. Second, it argues that it meets its burden of showing by clear and convincing evidence that it is likely to prevail. Third, it argues that RCW 4.24.525 is unconstitutional because it requires a showing of a probability of prevailing before the plaintiff has had the opportunity to conduct discovery, thereby violating the doctrine of separation of powers and the right of access to courts. Fourth, it argues that RCW 4.24.525 is unconstitutional because it violates the First Amendment. Finally, it argues that RCW 4.24.525(6) conflicts with CR 11.
¶ 35 KIRO filed a cross-appeal, alleging that the trial court erred by failing to award it its attorney fees and impose a $10,000 penalty pursuant to RCW 4.24.525(6).
¶ 37 The trial court has not ruled on any of the issues involving the anti-SLAPP statute. Indeed, the trial court specifically stated it was not doing so. We avoid deciding constitutional issues where a case may be fairly resolved on other grounds.
¶ 38 Affirmed.
WE CONCUR: LEACH, C.J., and ELLINGTON, J.P.T.
