$1.1M Libel Award to Drag Performer Who Had Been Accused of Exposing Himself Upheld

From Posey v. Bushnell, decided today by the Idaho Supreme Court, in an opinion by Chief Justice Richard Bevan (see also this a post from when the verdict was handed down):

In June 2022, Posey performed on stage at a drag show in Coeur d’Alene City Park. The performance was attended by members of the public, including children. Bushnell did not attend the live show, though she later obtained a video recording of Posey’s performance. On social media, Bushnell posted a video of herself describing what she saw in the video, claiming that Posey had “flashed his genitalia” during the performance, and asking why Posey had not been arrested. Bushnell then uploaded an edited version of Posey’s performance to social media, blurring out the area around his crotch and claiming that the blurred area covered Posey’s “fully exposed genitals.”

Posey sued Bushnell for defamation, alleging that Bushnell had lied about his performance for the sake of gaining attention on social media. The case went to trial and the jury found in favor of Posey, awarding him $926,000 in compensatory damages and $250,000 in punitive damages.

The court affirmed the verdict, chiefly on the grounds that Bushnell (who represented herself) didn’t properly preserve the arguments at trial and make them on appeal; an excerpt as to of the bases for the court’s decision:

Our review of Bushnell’s briefing reveals that most of the issues raised on appeal are unsupported by cogent argument or authority. Although Bushnell cites numerous authorities in support of her arguments, many do not support her arguments because they are fabricated or inaccurate quotations.

In fact, of the twenty-two purported quotations Bushnell attributes to caselaw, statutes, court rules, pattern jury instructions, and the Idaho Constitution, only six are accurate quotations with some minor spelling errors. Bushnell’s briefing also misrepresents caselaw, statutory law, court rules, and pattern jury instructions. For example, Bushnell cites “Jones v. Lynn, 155 Idaho 439, 445 (2013),” (italics in original), as holding that errors occurring during voir dire require reversal, even absent a contemporaneous objection, when those errors undermine the fairness of jury selection. No such decision exists….

Many of Bushnell’s arguments on appeal depend on fabricated or misrepresented authority. Once that authority is set aside, those arguments are left without the cogent legal support necessary for appellate review…. Bushnell has also failed to support a significant number of her issues with cogent argument. Many of her issues are presented in passing with very little explanation. Others are so amorphous that it is almost impossible to determine what she is arguing….

Finally, several of Bushnell’s arguments rely on imagined or misrepresented facts from the record. For example, Bushnell claims that the district court erred by failing to adopt her proposed punitive damages instruction based on Idaho Civil Jury Instruction 9.20. But the record clearly demonstrates that the district court adopted Bushnell’s requested instructions based on 9.20. An appellate argument is only as sound as the record on which it rests. When a party misrepresents the record, the resulting argument cannot establish reversible error because it attributes actions to the district court that it never took….

The court did reach the substantive argument on one issue, though:

We have declined to address virtually every issue raised by Bushnell on appeal except for one: whether the district court erred by ruling as a matter of law in connection with Bushnell’s motion for summary judgment, that Posey was not a limited-purpose public figure. Bushnell contends this ruling lead to a lowering of Posey’s burden of proof and materially altered the jury instructions.

We disagree. Even if we were to conclude the district court erred when it ruled that Posey was not a limited-purpose public figure, the district court instructed the jury that, to award punitive damages, it must find Bushnell acted with actual malice. The district court further instructed the jury that actual malice existed if Bushnell “knew the defamatory information was false, or acted with a reckless disregard for its truth ….”

The jury unambiguously found on the special verdict form that Bushnell knew the communicated information was false or that she acted with reckless disregard for its truth. In other words, even if we assumed the district court’s ruling was wrong, any alleged error was harmless because the jury determined by clear and convincing evidence that Bushnell acted with actual malice, which would mean that Posey is entitled to recover compensatory damages….

Wendy J. Olson (Stoel Rives LLP) represents plaintiff.

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