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PALMTAG V. REPUBLICAN PARTY OF NEB.

Cite as 315 Neb. 679

Janet Palmtag, appellant and cross-appellee, v. The 

Republican Party of Nebraska, also known 

as The Nebraska Republican Party, 

appellee and cross-appellant.

___ N.W.2d ___

Filed January 12, 2024. No. S-22-967.

1. Summary Judgment: Appeal and Error. An appellate court reviews 

the district court’s grant of summary judgment de novo, viewing the 

record in the light most favorable to the nonmoving party and drawing 

all reasonable inferences in that party’s favor.

2. Libel and Slander: Negligence. A claim of defamation requires (1) a 

false and defamatory statement concerning the plaintiff, (2) an unprivileged publication to a third party, (3) fault amounting to at least negligence on the part of the publisher, and (4) either actionability of the 

statement irrespective of special harm or the existence of special harm 

caused by the publication.

3. Libel and Slander: Words and Phrases. Libel is defamation where the 

defamatory words are written or printed; slander is defamation where 

the defamatory words are spoken.

4. Constitutional Law: Libel and Slander. When the plaintiff is a public 

official or public figure and the speech is a matter of public concern, the 

First Amendment requires the plaintiff to surmount certain higher barriers than those raised by common-law libel.

5. ____: ____. There is no constitutional right to espouse false assertions 

of facts, even against a public figure in the course of public discourse.

6. Libel and Slander: Negligence. The principal higher barrier a public 

libel plaintiff must surpass is that actual malice, not simple negligence, 

is part of the scienter element of the plaintiff’s prima facie case.

7. Libel and Slander: Proof. The plaintiff in a public libel action must 

establish actual malice by clear and convincing evidence.

8. Summary Judgment: Libel and Slander. The same general summary 

judgment standards applicable to any action apply to a public libel 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

01/12/2024 09:06 AM CST
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Cite as 315 Neb. 679

action; however, the existence of a genuine issue of material fact is 

dependent upon the particular elements and standards of proof of the 

underlying action.

9. Summary Judgment. Summary judgment is proper only when the 

pleadings, depositions, admissions, stipulations, and affidavits in the 

record disclose that there is no genuine issue as to any material fact or 

as to the ultimate inferences that may be drawn from those facts and that 

the moving party is entitled to judgment as a matter of law.

10. Actions: Proof. Successful suits are not limited to those cases in which 

there is direct proof by a party’s admission of the ultimate fact.

11. Libel and Slander: Words and Phrases. Actual malice means knowledge of falsity or reckless disregard for the truth.

12. Libel and Slander: Proof. Mere proof of failure to investigate, without 

more, cannot establish reckless disregard for the truth in a defamation claim.

13. ____: ____. Standing alone, proof of a defendant’s ill will toward a 

public figure plaintiff is insufficient to establish knowledge of falsity or 

reckless disregard for the truth for purposes of a defamation claim.

14. Libel and Slander: Evidence. Motive and negligence, including a failure to investigate, are factors in the totality of the evidence that may be 

considered in making reasonable inferences as to the defendant’s state of 

mind in a public libel action.

15. Libel and Slander: Evidence: Proof. A plaintiff in a public libel action 

is entitled to prove the defendant’s state of mind through circumstantial evidence.

16. Libel and Slander. Relevant to actual malice is the ambiguity of any 

source material consulted by the defendant and the reasonableness or 

lack thereof in interpreting that material in a way that led to the false 

statement forming the basis of the plaintiff’s claim.

17. Libel and Slander: Words and Phrases. A “critical issue” is whether 

a source relied upon in making the false and defamatory statement was 

reasonably susceptible of the interpretation given it by the defendant.

18. Libel and Slander. An inference of actual malice can be drawn when a 

defendant publishes a defamatory statement that contradicts information 

known to him or her, even though the defendant testifies that he or she 

believed that the statement was not defamatory and was consistent with 

the facts within the defendant’s knowledge.

19. ____. A publisher cannot feign ignorance or profess good faith when 

there are clear indications present which bring into question the truth or 

falsity of defamatory statements.

20. Corporations. Generally, a corporation is viewed as a complete and 

separate entity from its shareholders and officers.
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Cite as 315 Neb. 679

21. Corporations: Fraud. A court will disregard a corporation’s identity 

only where the corporation has been used to commit fraud, violate a 

legal duty, or perpetrate a dishonest or unjust act in contravention of the 

rights of another.

22. Libel and Slander: Damages. In general, the damages under common 

law that may be recovered for defamation are (1) general damages for 

harm to reputation; (2) special damages; (3) damages for mental suffering; and (4) if none of these are proved, nominal damages.

23. Damages. Special damages is a subset of actual harm, as actual harm 

is supported by evidence of injury, but the injury need not be pecuniary loss.

24. Constitutional Law: Libel and Slander: Pleadings: Proof: Damages.

Pleading and proving special damages is not one of the higher barriers 

the U.S. Supreme Court has held the public libel plaintiff must surmount 

to protect the First Amendment right to public debate.

25. Libel and Slander: Pleadings: Proof: Damages. A plaintiff in a per se 

public libel action is not required to plead and prove special damages to 

state a claim.

Appeal from the District Court for Lancaster County: 

Andrew R. Jacobsen, Judge. Reversed and remanded for further proceedings.

David A. Domina, of Domina Law Group, P.C., L.L.O., for 

appellant.

Kamron T.M. Hasan and Sydney L. Hayes, of Husch 

Blackwell, L.L.P., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Papik, 

and Freudenberg, JJ., and Moore, Judge.

Freudenberg, J.

I. INTRODUCTION

A general candidate for the Nebraska Legislature sued The 

Republican Party of Nebraska (the Party) for public libel 

stemming from political mailers stating that the candidate, 

a real estate agent, had been disciplined by the Iowa Real 

Estate Commission (Commission) for breaking the law and 

had lost her Iowa real estate license. The candidate appeals 
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Cite as 315 Neb. 679

from a summary judgment against her, in which the court 

found a genuine issue that the statements were false but no 

genuine issue that the Party acted with actual malice. The 

Party cross-appeals the district court’s conclusion that because 

the candidate stated a per se defamation action, she did not 

have to plead and prove special damages and she had, in any 

event, proved special damages. We reverse the order of summary judgment on the grounds that when the facts presented 

by the candidate are viewed in a light most favorable to the 

candidate, as the nonmoving party, those facts are sufficient 

that a jury could find by clear and convincing evidence that the 

Party acted with actual malice. We find no merit to the Party’s 

cross-appeal.

II. BACKGROUND

Janet Palmtag has active real estate licenses in Nebraska and 

Missouri and an inactive license in Iowa. Her license in Iowa 

became inactive in January 2020. She testified that she chose 

to make her license inactive because she was not doing much 

business there.

Palmtag owns 100 percent of the common voting stock of 

J. J. Palmtag, Inc. (J.J.), a real estate brokerage firm organized and registered as a corporation. J.J. has three employees, 

including Palmtag, and has 15 independent contractor agents, 

including Palmtag. Palmtag receives a salary from J.J. rather 

than receiving income directly through her commissions.

J.J., as a corporate entity, has brokerage licenses in Nebraska 

and Missouri and previously had a license in Iowa. Palmtag’s 

individual brokerage license is the managing license for J.J.

1. Consent Order

In August 2018, J.J. entered into a “Combined Statement of 

Charges, Informal Settlement Agreement, and Consent Order 

in a Disciplinary Case” (consent order) with the Commission. 

It was captioned as “IN RE: J.J. Palmtag, Inc. Firm . . . 

RESPONDENT” and referred to a case number (disciplinary case).
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Cite as 315 Neb. 679

Palmtag is referred to in the consent order “both as the 

designated broker in charge and a licensed real estate broker 

officer for the Respondent real estate brokerage firm.”

The consent order describes the “STATEMENT OF 

CHARGES” against J.J.:

Respondent is charged with engaging in improper trust 

account procedures in violation of Iowa Code sections 

543B.29(l)(k), 543B.34(1), 543B.46 (2017) by disbursing earnest money funds from an Iowa real estate trust 

account prior to closing and without the informed written consent of all the parties to a transaction. See 193E 

Iowa Administrative Code sections 13.1, 13.1(1), 13.1(7), 

18.14(5)(f)(2).

Under “CIRCUMSTANCES,” the consent order states in 

part:

In a random sampling of transaction files, the auditor 

discovered one (1) real estate transaction for a property 

located in Fremont County, Iowa where the Respondent 

transferred trust funds from J.J. Palmtag Inc. Iowa Trust 

Account to Nebraska Title Trust Account without the 

informed written consent of all the parties to this respective transaction.

Under “SETTLEMENT AGREEMENT,” the consent 

order provides that “[w]ithout admission of wrongdoing or 

guilt, the Respondent does not contest the violations alleged in 

the above-stated Statement of Charges” and that “[t]his Order 

constitutes discipline against the Respondent, and is the final 

agency order in this contested case pursuant to Iowa Code section 17A.10 and 193 Iowa Administrative Code 7.4.”

Under “CIVIL PENALTY,” the consent order states, “The 

Respondent shall pay a civil penalty to the Commission in the 

amount of five hundred dollars . . . .” There is no reference in 

the order to the loss or suspension of any real estate license.

Immediately before the signature of “Janet A. Palmtag, 

Broker Officer,” the consent order provided, “FOR THE 
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RESPONDENT: Voluntarily agreed to and accepted by J.J. 

Palmtag . . . .”

Palmtag testified that she signed the consent order in 

her capacity as a corporate representative. Palmtag was not 

involved in the underlying transaction and denied being aware 

of it until the State of Iowa audited J.J. Palmtag testified 

in her deposition that the consent decree stemmed from the 

actions of an agent working for J.J., who was ill at the time 

and who is now deceased. She testified that, as owner, she 

takes responsibility for J.J.’s actions.

2. Licensing Bureau Status

The license status for J.J. and Palmtag are listed on the 

Iowa Professional Licensing Bureau (Bureau) online. It provides that Palmtag’s license is “[i]nactive,” effective January 

2, 2020. It provides that the license of “J.J. Palmtag, Inc.” 

is “[c]anceled.”

The Bureau website states with respect to Palmtag that there 

have been “No Discipline or Board Actions.”

Like her personal license, Palmtag testified she canceled 

J.J.’s license in Iowa because she was not doing much business 

there. According to Palmtag, this decision was not related to 

the consent order.

3. Political Mailers

In 2020, Palmtag was a general candidate for the Nebraska 

Legislature. It was undisputed that, because of this, Palmtag 

was a public figure. Although Palmtag was a registered 

Republican voter, the Party backed Palmtag’s opponent in the 

legislative primary race. On approximately October 6, 2020, 

the Party mailed two mailers to approximately 3,200 households of registered voters.

The mailers were attached to Palmtag’s complaint. The mailers cite the disciplinary case as the source of the information. 

Palmtag made an official demand for corrections on October 

19, 2020. No corrections were made.
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Palmtag highlighted in her complaint two statements in the 

mailers. The first statement was that “Janet Palmtag Broke 

The Law & Lost Her Real Estate License.” The second statement was that “Janet Palmtag was charged with and fined for 

engaging in improper trust account procedures by disbursing 

funds . . . without the informed written consent of all the parties.” These statements were also the two specific statements 

that Palmtag had officially demanded the Party correct.

In her response to the Party’s statement of undisputed facts 

and a brief submitted to the trial court, Palmtag clarified she 

also alleged she was defamed by the statement that her real 

estate license had been “revoked,” which was reflected in the 

attachments to the complaint. The mailers depicted a yard 

sign reading “Licensed Agent,” with a red stamp over it reading “REVOKED.” The mailers also described that Palmtag 

was “TOO IRRESPONSIBLE TO KEEP HER LICENSE.”

4. Party’s Investigation

Before distributing the mailers, Ryan Hamilton, the Party’s 

executive director, submitted them to the Party’s chairman for 

approval, in accordance with the chairman’s policy that no 

mailers be sent unless they are first approved by him. Hamilton 

testified in his deposition that he had read the consent order 

and J.J.’s license status on the Commission website, which 

stated J.J.’s license was “canceled.” Hamilton did not know 

how many real estate agents J.J. had or which individual 

was involved in the underlying transaction. Hamilton did not 

review the webpage for Palmtag’s Iowa license.

Hamilton testified he believed Palmtag was “responsible” 

for the violations described in the consent order. This was 

based on Palmtag’s signature on the order and his assumption that she was the person responsible because she owned 

J.J. and was the designated broker in charge and licensed real 

estate broker officer for J.J. Although Hamilton acknowledged that J.J., the corporate entity, was the only respondent 

in the consent order, Hamilton said that “it seems to be a 
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Cite as 315 Neb. 679

difference without a distinction to me.” Hamilton informed 

the chairman that he had researched the issue and reviewed 

the consent order and that the mailers were accurate.

The chairman testified in his deposition that he had informed 

Hamilton the mailers must be accurate and was assured by 

Hamilton that they were. He testified that he believed the statements had been sufficiently vetted. He did not entertain serious 

doubts about their truth.

Palmtag disputed the veracity of the chairman’s and 

Hamilton’s testimony as “self-serving.” There was evidence 

admitted that, in a text message thread between Hamilton and a 

vendor involving a copy of the consent order, the vendor said, 

“Ok that’s not real” and “[y]our call boss.”

5. Lost Earnings

Both J.J.’s gross income and net income increased from 

2019 to 2020 and from 2020 to 2021. Also, the evidence demonstrated that Palmtag’s personal listings were approximately 

the same before and after the alleged defamation. Palmtag 

testified that it was “impossible to identify clients lost because 

listings have not been signed and persons have not approached 

the firm.” Put differently, Palmtag testified that the identities of 

potential persons were not known because lost opportunities, 

by definition, do not present themselves.

However, Palmtag, in her deposition testimony, identified 

approximately $100,000 per year in lost income. She identified that her personal listings had declined. While from 2015 

to 2019, her personal listings averaged 20 per year, she had 7 

personal listings in 2020 and 12 in 2021.

6. Complaint and Answer

Palmtag alleged in her complaint that the Party made intentional, reckless, and false statements in the mailers and that 

each statement exhibited actual malice, knowledge of falsity, or 

reckless disregard for the truth.
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PALMTAG V. REPUBLICAN PARTY OF NEB.

Cite as 315 Neb. 679

Palmtag alleged that the statements were defamation per 

se because they falsely accused her of committing a crime 

involving moral turpitude and of unfitness to perform the 

duties of a public office and because, in her employment as a 

real estate professional, they prejudiced her in her profession 

and trade. Palmtag alleged that pursuant to Neb. Rev. Stat. 

§ 25-840.01 (Reissue 2016), she was not limited to special 

damages because the Party declined to correct the defamatory 

statements after timely demand.

Palmtag alleged both general and special damages. For 

special damages, she alleged lost earnings, loss of equity in 

her business, expenses to mitigate lost earnings, and expenses 

for medical and psychological care. For general damages, 

Palmtag alleged physical illness, emotional distress, sleep 

disturbance, and a variety of other quality-of-life and mental 

health effects.

In its answer, the Party asserted Palmtag could not establish special damages and, as a result, her defamation claim 

was barred. In its statement of undisputed material facts, the 

Party quoted the definition of special damages in § 25-840.01, 

which states they include only damages suffered in respect to 

property, business, trade, profession, or occupation. In other 

filings before the hearing on the motion for summary judgment, the Party asserted that reputational harm and medical 

expenses are not special damages. It also asserted that all 

public libel cases, regardless of whether they are defamation 

per se, must plead and prove special damages as an essential 

element of the public libel claim.

7. Motion for Summary Judgment

The Party moved for summary judgment, generally alleging there was no genuine issue that the statements were 

substantially true, it did not act with actual malice, and there 

were no special damages. In its statements of undisputed 

material fact and at the hearing, the Party elaborated as to 

special damages that Palmtag could not prove lost business 
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proximately caused by the mailers. It relied on a statement in 

Moats v. Republican Party of Neb. 1 that “[t]he plaintiff in a 

‘public-libel’ action must establish that the alleged statement 

is false by clear and convincing evidence and establish special damages.”

In her brief in opposition to summary judgment, Palmtag 

stated, “Though whether the Consent Order constitutes ‘discipline’ is a complex question under Iowa’s statutes and regulations, it is clear the Consent Order did not suspend or revoke 

. . . Palmtag’s license.” In fact, “no real estate license was 

ever suspended, revoked, or lost as a result of any proceeding 

involving . . . Palmtag or J.J.”

Palmtag also noted that the Commission website “discloses 

no license revocations nor violations of the law by . . . 

Palmtag.”

According to Palmtag, the false statements at issue were not 

supported by any reasonable reading of the material Hamilton 

said he consulted. Furthermore, discovery of the falsity of 

the statements in the mailers could have been easily made 

through a phone call or by looking at the Bureau website. 

Neither Hamilton nor the chairman made any real investigation because they were told by a “‘big donor’” to “‘[g]o hard 

on [Palmtag].’”

Palmtag cited to our statement in McKinney v. Okoye 2 that 

“[s]tate of mind is difficult to prove, and rarely will the plaintiff be able to provide a ‘“smoking gun.”’ Thus, . . . cases 

where the underlying issue is one of motive or intent are 

particularly inappropriate for summary judgment.” She argued 

that the evidence was sufficient in combination for a rational 

finder of fact to conclude by clear and convincing evidence 

that the Party acted with actual malice and that its statements 

to the contrary were not credible.

1 Moats v. Republican Party of Neb., 281 Neb. 411, 422, 796 N.W.2d 584, 

594 (2011).

2 McKinney v. Okoye, 287 Neb. 261, 275, 842 N.W.2d 581, 594 (2014).
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Palmtag denied that she had to prove special damages. 

Nonetheless, she asserted that she had presented evidence 

supporting a genuine issue of whether special damages could 

be shown.

8. Order Granting Summary Judgment

The district court granted the Party’s motion for summary 

judgment. The court stated that Palmtag alleged only that the 

two statements set forth in her demand to correct and in her 

complaint were defamatory, but the parties disputed to what 

extent the court should consider other statements in the mailers. The court said that it must consider the full content of the 

mailers for context.

(a) Falsity

The court found that although it was substantially true that 

J.J. broke the law and was fined for improper trust account 

procedures, the substance of the statement was that Palmtag, 

as an individual, had broken the law and was fined. The court 

relied on cases considering whether corporate representatives 

had personal knowledge or involvement in the matters that 

were the subject of the defamatory statements. The court concluded there was a genuine issue of whether the statements 

that Palmtag broke the law and was charged and fined for 

improper trust account procedures were substantially true. It 

noted evidence that Palmtag was “not involved at all in the 

underlying transaction and was not even aware of it until the 

State of Iowa audited the [c]orporation.”

The court also found a genuine issue as to whether it was 

substantially true that Palmtag had “‘lost’” her license. It noted 

that J.J. and Palmtag had separate licenses. The court observed 

that the Commission never told Palmtag to stop selling real 

estate in Iowa or to stop holding herself out as licensed to 

sell real estate and that Palmtag had voluntarily changed her 

license status to inactive because she was not doing business 

there and did not want to pay the renewal fees.
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(b) Special Damages

The district court rejected the Party’s argument that in all 

public libel cases the plaintiff must prove special damages. 

The district court explained that our reasoning in Moats was 

inconsistent with our broad statement therein that a plaintiff 

in a public libel action must establish special damages regardless of whether the underlying statement constituted libel per 

se. The district court observed that we discussed in Moats that 

in a per se libel action, special damages are not required and 

concluded that because the statements were not defamation 

per se, the plaintiff had to plead special damages. The district 

court found no other support for the proposition that a per se 

public libel action requires special damages. The court found 

Palmtag had stated a claim for libel per se because the statements implied she was unfit to work as a real estate broker. 

In the alternative, the court found a genuine issue of whether 

Palmtag suffered special damages.

(c) Actual Malice

The district court explained that the usual rules for summary judgment apply to actual malice. It said that the clear 

and convincing evidence standard applies at the summary 

judgment stage inasmuch as the inquiry is whether a trier of 

fact could find actual malice by clear and convincing evidence, but questions of motive and intent are particularly 

inappropriate for summary judgment.

However, citing to Bose Corp. v. Consumers Union of U. S., 

Inc.,

 3 the district court also said that whether the evidence in 

the record in a defamation case is sufficient to support a finding of actual malice is a threshold question of law that the 

Constitution requires judges to make before entry of a judgment against the defendant.

3 Bose Corp. v. Consumers Union of U. S., Inc., 466 U.S. 485, 104 S. Ct. 

1949, 80 L. Ed. 2d 502 (1984). See, also, Harte-Hanks Communications v. 

Connaughton, 491 U.S. 657, 109 S. Ct. 2678, 105 L. Ed. 2d 562 (1989).
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The district court observed that Palmtag had produced no 

evidence directly contradicting Hamilton’s testimony that he 

subjectively believed Palmtag herself had broken the law and 

that the Commission had charged and fined her for improper 

trust account procedures. The court also found no evidence 

of purposeful avoidance of the truth. The court noted statements by the U.S. Supreme Court that the failure to further investigate is insufficient to demonstrate malice. Also, 

the district court questioned how the Party reasonably could 

have conducted a further investigation. Citing to the “Iowa 

Code §§ 272C.1(6)(d) [and] 272C.6(4)(a),” as well as to the 

“Iowa Admin. Code r. 193E-18.8,” the district court said the 

Commission’s investigative information is generally privileged. 

It did not directly address if the Bureau website information 

about Palmtag having “No Discipline or Board Actions” was 

available to the Party. It also did not address whether the Party 

could have discovered Palmtag’s license was listed as “[i]nactive,” effective January 2, 2020.

The district court implicitly concluded that the Party operated under a reasonable misunderstanding of ambiguous 

sources: (1) the consent order and (2) the Bureau website’s 

licensing status for J.J. The district court found, in relation 

to the Bureau’s website showing the license status for J.J., 

that the Party could have rationally interpreted the phrase 

“[c]anceled” as consistent with “‘lost.’” The court did not 

directly address whether the Party could have rationally read 

the Bureau information for J.J.’s license status as indicating that Palmtag’s, as opposed to J.J.’s, license had been 

“[c]anceled.” The district court suggested the consent order 

was likewise ambiguous. However, the court did not elaborate 

on what aspects of the consent order were ambiguous and 

what rational interpretations of it the Party had made.

Despite acknowledging that Palmtag was arguing the consent order on its face showed J.J., and not Palmtag, was the 

disciplined party and having found a genuine issue of whether 
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the statements were false because they implicated Palmtag 

individually rather than only J.J., the court did not explicitly 

address if the Party’s sources were ambiguous as to whether 

Palmtag, as an individual, broke the law, was disciplined, and 

lost her license. Nor did the district court explicitly address 

the reasonableness of the Party’s stated subjective belief that 

Palmtag, as an individual, broke the law, was disciplined, and 

lost her real estate license.

III. ASSIGNMENTS OF ERROR

Palmtag assigns, summarized, that the district court erred in 

sustaining the motion for summary judgment by finding insufficient evidence of actual malice as a matter of law and failing 

to give Palmtag the benefit of all reasonable inferences.

The Party cross-appeals, assigning that the district court 

erred by determining that Palmtag (1) was not required to present a genuine issue of material fact that she incurred special 

damages and (2) had presented a genuine issue of material fact 

that she incurred special damages.

IV. STANDARD OF REVIEW

[1] An appellate court reviews the district court’s grant of 

summary judgment de novo, viewing the record in the light 

most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor. 4

V. ANALYSIS

1. Overview of Elements

[2,3] In the ordinary case, a claim of defamation requires (1) 

a false and defamatory statement concerning the plaintiff, (2) 

an unprivileged publication to a third party, (3) fault amounting 

to at least negligence on the part of the publisher, and (4) either 

actionability of the statement irrespective of special harm 

4 Brown v. State, ante p. 336, 996 N.W.2d 56 (2023).
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or the existence of special harm caused by the publication. 5

Libel is defamation where the defamatory words are written 

or printed; slander is defamation where the defamatory words 

are spoken. 6

[4] When the plaintiff is a public official or public figure 7 and the speech is a matter of public concern, the First 

Amendment requires the plaintiff to surmount certain higher 

barriers than those raised by common-law libel. 8 This is 

because erroneous statements are inevitable in free debate and 

must be protected. 9 Furthermore, a rule compelling a critic of 

official conduct to guarantee the truth of all factual assertions, 

on pain of libel judgments, would lead to self-censorship. 10

Finally, it has been observed that public officials and public 

figures, due to greater access to channels of effective communication, have a greater opportunity than private individuals to 

counteract false statements and minimize its adverse impact on 

reputation, 11 and they have normally assumed roles for which 

they must accept certain necessary consequences. 12

[5] Nevertheless, the First Amendment’s protections of public debate are not absolute. 13 It is well settled that there is no 

constitutional right to espouse false assertions of facts, even 

against a public figure in the course of public discourse. 14

5 Moats v. Republican Party of Neb., supra note 1.

6 50 Am. Jur. 2d Libel and Slander § 6 (2017).

7 See Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 

2d 1094 (1967).

8 See Hoch v. Prokop, 244 Neb. 443, 507 N.W.2d 626 (1993).

9 See New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 

2d 686 (1964).

10 See id.

11 Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 

789 (1974).

12 Id.

13 See Moats v. Republican Party of Neb., supra note 1.

14 Id.
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[6] The principal higher barrier a public libel plaintiff must 

surpass is that actual malice, not simple negligence, is part of 

the scienter element of the plaintiff’s prima facie case. 15

Another barrier particular to a public libel action is that, 

to be constitutionally sufficient “to support a finding that the 

statements referred to” the plaintiff, there must be evidence, 

other than general assumptions attaching praise or criticism to 

the official in control of the body, connecting the plaintiff to 

the statements at issue. 16 The statements must be “specifically 

made of and concerning” 17 the plaintiff to be actionable.

[7] Finally, there is a heightened “clear and convincing” 

burden of proof for certain elements of a public libel action, 

instead of the preponderance of the evidence standard that 

would normally apply because it is a civil action. Most notably, the plaintiff in a public libel action must establish actual 

malice by clear and convincing evidence. 18 But we have also 

held that the plaintiff in a public libel action bears the burden 

of proving by clear and convincing evidence the element of 

falsity of the published statements. 19 Further, we have indicated that it is the plaintiff’s burden to establish by clear and 

convincing evidence that the statements are “of and concerning 

the plaintiff.” 20

2. Summary Judgment Standard 

for Public Libel Actions

[8] Palmtag suggests that the district court utilized an inappropriately high summary judgment standard in determining 

15 See Hoch v. Prokop, supra note 8.

16 New York Times Co. v. Sullivan, supra note 9, 376 U.S. at 292.

17 Rosenblatt v. Baer, 383 U.S. 75, 80, 86 S. Ct. 669, 15 L. Ed. 2d 597 

(1966). See, also, Deaver v. Hinel, 223 Neb. 529, 391 N.W.2d 128 (1986).

18 Hoch v. Prokop, supra note 8. See Gertz v. Robert Welch, Inc., supra note 

11.

19 See Deaver v. Hinel, supra note 17. See, also, Firestone v. Time, Inc., 460 

F.2d 712 (5th Cir. 1972).

20 Deaver v. Hinel, supra note 17, 223 Neb. at 539, 391 N.W.2d at 135.
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whether there was a genuine issue pertaining to the elements of 

Palmtag’s public libel action. We agree that the same general 

summary judgment standards applicable to any action apply to 

a public libel action; however, the existence of a genuine issue 

of material fact is dependent upon the particular elements and 

standards of proof of the underlying action.

[9] In general, summary judgment is proper only when the 

pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to 

any material fact or as to the ultimate inferences that may be 

drawn from those facts and that the moving party is entitled to 

judgment as a matter of law. 21 The party moving for summary 

judgment must make a prima facie case by producing enough 

evidence to show the movant would be entitled to judgment 

if the evidence were uncontroverted at trial. 22 If the burden of 

proof at trial would be on the nonmoving party, then the party 

moving for summary judgment may satisfy its prima facie 

burden either by citing to materials in the record that affirmatively negate an essential element of the nonmoving party’s 

claim or by citing to materials in the record demonstrating 

that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim. 23 If 

the moving party makes a prima facie case, the burden shifts 

to the nonmovant to produce evidence showing the existence 

of a material issue of fact that prevents judgment as a matter 

of law. 24

In its order granting the Party’s motion for summary judgment, the court stated the usual rules of summary judgment 

applied. However, it also cited to the independent appellate 

21 407 N 117 Street v. Harper, 314 Neb. 843, 993 N.W.2d 462 (2023).

22 Clark v. Scheels All Sports, 314 Neb. 49, 989 N.W.2d 39 (2023).

23 Id.

24 Id.
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review doctrine established by Bose Corp. 25 We clarify that this 

is not a standard applicable to summary judgment.

In Bose Corp., the U.S. Supreme Court held that the question of whether the evidence in the record is of the convincing clarity required to strip the utterance of First Amendment 

protection is not merely a question for the trier of fact. 26

Judges, as expositors of the Constitution, must independently 

decide whether the evidence is sufficient to cross the constitutional threshold that bars the entry of any judgment that is 

not supported by clear and convincing proof of actual malice. 27 The Court elaborated that in determining whether the 

constitutional standard of liability has been satisfied in cases 

of defamation of a public figure, there is a requirement of 

independent appellate review to decide whether the evidence 

in the record is sufficient to “cross the constitutional threshold 

that bars the entry of any judgment that is not supported by 

clear and convincing proof of ‘actual malice.’” 28 The Court 

said that although credibility determinations are reviewed 

under the clearly erroneous standard, because the trier of 

fact has had the “opportunity to observe the demeanor of the 

witnesses,” 29 the reviewing court must “examine for [itself] 

the statements in issue and the circumstances under which 

they were made to see . . . whether they are of a character 

which the principles of the First Amendment . . . protect.” 30

There is a difference between independently reviewing 

on appeal the entirety of the evidence at trial to determine 

if the statements are of a character that the principles of the 

First Amendment protect and conducting such an examination 

25 Bose Corp. v. Consumers Union of U. S., Inc., supra note 3.

26 Id.

27 Id.

28 Id., 466 U.S. at 511.

29 Id., 466 U.S. at 499-500.

30 Id., 466 U.S. at 508 (internal quotation marks omitted).
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upon the more limited evidence presented at a summary 

judgment hearing and without the benefit of a trier of fact’s 

credibility determinations. At the summary judgment stage, 

the primary issue remains whether there is a genuine issue of 

material fact.

Indeed, the U.S. Supreme Court specifically addressed the 

proper summary judgment standard for a public defamation 

case in Anderson v. Liberty Lobby, Inc. 31 The Court said that 

whether there is a genuine issue of material fact for purposes 

of summary judgment necessarily implicates the substantive 

evidentiary standard of proof that would apply at the trial 

on the merits. 32 Thus, whether any dispute about actual malice is genuine involves a determination of whether there is 

enough probative evidence from which reasonably minded 

jurors could find that actual malice has been proved by clear 

and convincing evidence. 33 “[T]here is no genuine issue if the 

evidence presented in the opposing affidavits is of insufficient 

caliber or quantity to allow a rational finder of fact to find 

actual malice by clear and convincing evidence.” 34

The Court acknowledged it may be unlikely that the higher 

standard of proof at trial would produce different results at 

the summary judgment stage, 35 but said it did not follow that 

it could never make a difference. The Court elaborated that 

merely asserting the jury might disbelieve the defendant’s 

testimony as to an innocent state of mind is insufficient, in 

itself, to overcome a motion for summary judgment in a public 

libel action. 36 The Court held that the movant must set forth 

31 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 

2d 202 (1986).

32 Id.

33 See id.

34 Id., 477 U.S. at 254.

35 Id.

36 Anderson v. Liberty Lobby, Inc., supra note 31.
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specific facts showing a genuine issue and may not rest only 

upon mere allegations or denials. 37

Still, the Court in Anderson reiterated that a higher underlying burden of proof at trial does not change the fact that 

“[c]redibility determinations, the weighing of the evidence, 

and the drawing of legitimate inferences from the facts are 

jury functions, not those of a judge . . . .” 38 Furthermore, 

“[t]he evidence of the non-movant is to be believed, and all 

justifiable inferences are to be drawn in his favor.” 39

[10] The Court emphasized in Anderson that its “holding 

that the clear-and-convincing standard of proof should be 

taken into account in ruling on summary judgment motions 

does not denigrate the role of the jury.” 40 The Court reiterated 

that, as always, trial courts should act with caution in granting 

summary judgment. The Court emphasized that where a result 

turns upon a choice of permissible inferences from undisputed 

evidence, summary judgment may not properly be granted. 41

Finally, the Court in Anderson explained that successful suits 

are not limited to those cases in which there is direct proof 

by a party’s admission of the ultimate fact. 42 This is consistent with the Court’s statement in St. Amant v. Thompson 43

that “[t]he defendant in a defamation action brought by a 

public [figure] cannot . . . automatically insure a favorable 

[judgment] by testifying that he published with a belief that 

the statements were true. The finder of fact must determine 

whether the publication was indeed made in good faith.”

37 Id.

38 Anderson v. Liberty Lobby, Inc., supra note 31, 477 U.S. at 255.

39 Id.

40 Id.

41 See Nader v. de Toledano, 408 A.2d 31 (D.C. App. 1979).

42 See Goldwater v. Ginzburg, 414 F.2d 324 (2d Cir. 1969).

43 St. Amant v. Thompson, 390 U.S. 727, 732, 88 S. Ct. 1323, 20 L. Ed. 2d 

262 (1968).
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To the extent the district court incorrectly relied on Bose in 

deciding if there was a genuine issue of material fact, it is of 

no consequence, because we review the district court’s grant 

of summary judgment de novo. We will apply the standards 

set forth in Anderson to the parties’ dispute as to whether there 

were genuine issues that (1) the Party acted with actual malice 

and (2) Palmtag suffered actionable harm. We note that the 

Party does not assign as error the district court’s finding that 

there was a genuine issue that the statements were false and 

defamatory, because there was evidence that Palmtag lacked 

personal knowledge or involvement in the underlying actions 

leading to the consent judgment. And there appears to be no 

dispute that the statements at issue were made “of and concerning” Palmtag. 44

3. Actual Malice

[11] We first address whether there was a genuine issue 

of actual malice. Actual malice means knowledge of falsity 

or reckless disregard for the truth. 45 This is analogous to the 

scienter necessary to negate the privilege for statements by 

public officials. 46

The U.S. Supreme Court has acknowledged the concept of 

“‘[r]eckless disregard’” “cannot be fully encompassed in one 

infallible definition.” 47 It has said the defendant must have 

made the false publication with a “high degree of awareness 

of . . . probable falsity,” 48 “entertained serious doubts as to the 

44 See Rosenblatt v. Baer, supra note 17, 383 U.S. at 80. See, also, Deaver v. 

Hinel, supra note 17.

45 Hoch v. Prokop, supra note 8.

46 See, Gertz v. Robert Welch, Inc., supra note 11; New York Times Co. v. 

Sullivan, supra note 9.

47 St. Amant v. Thompson, supra note 43, 390 U.S. at 730.

48 Garrison v. Louisiana, 379 U.S. 64, 74, 85 S. Ct. 209, 13 L. Ed. 2d 125 

(1964).
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truth of his publication,” 49 had a necessary awareness of probable falsehood, 50 or “obvious reasons to doubt the veracity of 

the informant or the accuracy of his reports.” 51

Palmtag relies on several aspects of the evidence admitted at the summary judgment hearing as being sufficient for 

a reasonably minded jury to find actual malice by clear and 

convincing evidence. She argues the statements in the mailers were directly contrary to the plain language of the consent order and the Bureau’s website for J.J.’s licensing status 

and not a reasonable reading of ambiguous sources. She also 

points to the lack of proper investigation, political motives 

behind the mailers, and the text thread as evidence supporting 

a genuine issue of actual malice.

The Party, for its part, argues that the consent order and 

license status were ambiguous and that its statements constituted reasonable interpretations of the source materials. It then 

asserts that this reasonable misunderstanding of ambiguous 

documents is insufficient as a matter of law to support a finding of actual malice—even if combined with its ill will toward 

Palmtag and a failure to further investigate. It argues that any 

reliance on the text thread stating “that’s not real” is being 

raised for the first time on appeal and does not show actual 

malice because it is unclear what the texts refer to and would 

not give the Party reason to doubt its understanding of the 

Bureau website and the consent order.

[12,13] In making these arguments, the Party relies on 

precedent by the U.S. Supreme Court holding that mere proof 

of failure to investigate, without more, cannot establish reckless disregard for the truth. 52 Likewise, standing alone, proof 

of a defendant’s ill will toward a public figure plaintiff 

is insufficient to establish knowledge of falsity or reckless 

49 St. Amant v. Thompson, supra note 43, 390 U.S. at 731.

50 Herbert v. Lando, 441 U.S. 153, 99 S. Ct. 1635, 60 L. Ed. 2d 115 (1979).

51 St. Amant v. Thompson, supra note 43, 390 U.S. at 732.

52 Gertz v. Robert Welch, Inc., supra note 11.
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disregard for the truth for purposes of a defamation claim. 53

But it does not follow that ill will and investigatory deficiencies are irrelevant and cannot be considered by a trier of fact 

together or in conjunction with other evidence. 54

[14,15] To the contrary, the U.S. Supreme Court has 

made clear that motive and negligence, including a failure 

to investigate, are factors in the totality of the evidence 

that may be considered in making reasonable inferences as 

to the defendant’s state of mind in a public libel action. 55

The U.S. Supreme Court in Harte-Hanks Communications 

v. Connaughton 56 held that a plaintiff in a public libel action 

“is entitled to prove the defendant’s state of mind through 

circumstantial evidence.” 57 Further, “it cannot be said that 

evidence concerning motive or care never bears any relation 

to the actual malice inquiry.” 58

[16,17] As the Party points out, also relevant to actual 

malice is the ambiguity of any source material consulted by 

the defendant and the reasonableness or lack thereof in interpreting that material in a way that led to the false statement 

forming the basis of the plaintiff’s claim. A “critical issue” is 

whether a source relied upon in making the false and defamatory statement was “reasonably susceptible of the interpretation” given it by the defendant. 59

53 Jackson v. Hartig, 274 Va. 219, 645 S.E.2d 303 (2007).

54 See, e.g., Harte-Hanks Communications v. Connaughton, supra note 3;

Goldwater v. Ginzburg, supra note 42.

55 See id.

56 Harte-Hanks Communications v. Connaughton, supra note 3, 491 U.S. at 

668.

57 See, Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 88 S. Ct. 197, 19 

L. Ed. 2d 248 (1967); Henry v. Collins, 380 U.S. 356, 85 S. Ct. 992, 13 L. 

Ed. 2d 892 (1965).

58 Harte-Hanks Communications v. Connaughton, supra note 3, 491 U.S. at 

668.

59 Nader v. de Toledano, supra note 41, 408 A.2d at 53.
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Thus, in Time, Inc. v. Pape,

 60 the Court held that the adoption of one of several possible rational interpretations of an 

“extravagantly ambiguous” document was not enough to create 

a jury issue of actual malice. In an article, a news magazine 

attempted to summarize a lengthy government document, a 

report of the U.S. Commission on Civil Rights, describing 

“‘chilling text about police brutality’” and that “the report 

cites Chicago police treatment of Negro James Monroe and 

his family.” 61 The article went on to quote the summary of the 

filed civil rights complaint found in the Commission’s report. 

At issue in the public libel action was the fact that the news 

article failed to specify these were charges by the complainant 

rather than independent findings by the Commission.

The U.S. Supreme Court explained that the commission’s 

report was ambiguous as to whether it had independently 

determined the truth of the incident alleged in the civil rights 

complaints it set forth. This was because the facts of the civil 

rights complaints were contained within a report that repeatedly asserted it was “dealing with a problem of unquestionable 

reality and seriousness.” 62 Furthermore, the civil rights complaints were described under a heading entitled “‘UNLAWFUL POLICE VIOLENCE,’” and the Commission said it 

was of the opinion that “‘the allegations appeared substantial 

enough to justify discussion in this study.’” 63

Given the ambiguities of the source and the testimony 

by the author of the article that they believed that the commission believed the incident had occurred as described, the 

Court in Pape reversed the lower appellate court’s reversal 

of a directed verdict in favor of the publisher. There was no 

other evidence presented supporting an inference of actual 

60 Time, Inc. v. Pape, 401 U.S. 279, 287, 91 S. Ct. 633, 28 L. Ed. 2d 45 

(1971).

61 Id., 401 U.S. at 281, 282.

62 Id., 401 U.S. at 286.

63 Id., 401 U.S. at 287.
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malice. The U.S. Supreme Court held there was insufficient 

evidence to permit the conclusion that the publisher acted 

with the requisite reckless disregard for truth or falsity that 

constitutes actual malice.

Likewise, in Bose Corp., the U.S. Supreme Court held that 

a choice of one of several possible rational interpretations of 

an ambiguous event does not place the speech beyond First 

Amendment protections. 64 Therein, the defendant published 

an article in its magazine evaluating loudspeaker systems. 

The article described the sound of the plaintiff’s system as 

tending to “‘wander about the room.’” 65 This was found to 

be false because the sound actually tended to wander back 

and forth “‘along the wall’” 66 between the two speakers of 

the system.

In Bose Corp., the original report and the article were 

written by the same engineer. The original report described 

the movement of sound around the room rather than along 

the wall. Only upon cross-examination at trial did it become 

apparent that the sound moved back and forth along the wall 

between the speakers. The engineer could not explain the 

choice of words he used in his report and in the article, but 

testified he believed they described what was observed.

The U.S. Supreme Court in Bose Corp. reversed a verdict 

in favor of the plaintiff for product disparagement, holding 

that there was insufficient evidence to support a finding of 

actual malice. The Court observed that “the only evidence 

of actual malice on which the District Court relied was the 

fact that the statement was an inaccurate description of what 

[the engineer] actually perceived.” 67 There was no evidence 

presented that the engineer had a motive to disparage the 

64 Bose Corp. v. Consumers Union of U. S., Inc., supra note 3.

65 Id., 466 U.S. at 488.

66 Id., 466 U.S. at 490.

67 Id., 466 U.S. at 512.
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plaintiff or had failed to investigate. The Court held that the 

language chosen by the engineer was one of a number of possible rational interpretations of an event that “‘bristled with 

ambiguities’” and “descriptive challenges for the writer.” 68

The Court indicated that an individual who uses a malapropism and “did not realize his folly at the time” is not liable 

simply because an intelligent speaker would know the term 

was inaccurate in context. 69

In contrast to such reasonable interpretations of ambiguous 

sources or events or the wrong choice of words when faced 

with “descriptive challenges,” “a publisher . . . who deliberately distorts [the] statements [of others] to launch a personal 

attack of his own on a public figure, cannot rely on a [First 

Amendment] privilege . . . . In such instances he assumes 

responsibility for the underlying accusations.” 70

[18] “[A]n inference of actual malice can be drawn when 

a defendant publishes a defamatory statement that contradicts 

information known to him, even [though] the defendant testifies that he believed that the statement was not defamatory and 

was consistent with the facts within his knowledge.” 71 This is 

“not simply a failure to investigate, but a failure to consider 

contradictory evidence already in his possession.” 72

[19] “[A] publisher cannot feign ignorance or profess good 

faith when there are clear indications present which bring 

into question the truth or falsity of defamatory statements.” 73

68 Id.

69 Id., 466 U.S. at 513.

70 Edwards v. National Audubon Society, Inc., 556 F.2d 113, 120 (2d Cir. 

1977).

71 Hunt v. Liberty Lobby, 720 F.2d 631, 645 (11th Cir. 1983).

72 Robertson v. McCloskey, 666 F. Supp. 241, 250 (D.D.C. 1987).

73 Gertz v. Robert Welch, Inc., 680 F.2d 527, 538 (7th Cir. 1982). See, also, 

Hunt v. Liberty Lobby, supra note 71; Fitzgerald v. Penthouse Intern., Ltd., 

691 F.2d 666 (4th Cir. 1982).
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Also, the deliberate omission of important information that 

would have substantially modified, qualified, or eliminated the 

defamatory meaning can support a finding of actual malice. 74

Accordingly, in Harte-Hanks Communications, the U.S. 

Supreme Court held there was sufficient evidence of actual 

malice relating to what the jury found were false and defamatory statements by a newspaper reporting that a challenger 

candidate in an election had offered jobs and a trip to two 

sisters in exchange for helping an investigation that led to the 

arrest of the incumbent. 75 There was evidence of motive by 

the newspaper to purposefully avoid the truth that the sister 

who reached out to them with the allegations of bribery was 

lying. And although the newspaper interviewed all other witnesses to the conversation in which the challenger allegedly 

bribed the sisters, the newspaper chose not to interview the 

other sister or listen to a recording of the conversation in 

their possession in which the alleged bribery of the sisters 

took place.

The U.S. Supreme Court in Harte-Hanks Communications

found this evidence sufficient to support the jury’s implicit 

rejection of the credibility of the newspaper’s innocent explanations as to why it did not verify the allegations by interviewing the sister or by listening to the tape. It followed 

from the jury’s assessment of credibility that the newspaper’s 

inaction “was a product of a deliberate decision not to acquire 

knowledge of facts that might confirm the probable falsity” 

of the charges, amounting to “the purposeful avoidance of the 

truth.” 76 This, explained the Court, demonstrated a reckless 

disregard for the truth amounting to actual malice.

74 See David A. Elder, Defamation: A Lawyer’s Guide § 7:13 (Oct. 2023 

update).

75 Harte-Hanks Communications v. Connaughton, supra note 3.

76 Id. 491 U.S. at 692.
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A similar conclusion was reached by the Sixth Circuit Court 

of Appeals in Young v. Gannett Satellite Information Network 77

in affirming a jury verdict for the plaintiff in a public libel 

action. A newspaper editor wrote that a police sergeant had 

been terminated for forcing sex on a coworker and stated that 

the sergeant “‘had sex with a woman while on the job.’” 78 The 

sergeant had in fact initially been fired for sexual assault, but 

the termination was overturned by an arbitrator who stated, in 

a report consulted by the editor, that the allegations had not 

been proved.

In Young, the arbitrator noted in the report that the DNA 

sample from the scene did not match the DNA of the sergeant 

and that the accuser had a history of behavior that undermined 

her credibility. On the other hand, the arbitrator also found 

that the sergeant was not credible in his claim that he had 

never engaged in sexual conduct with the woman. The arbitrator conceded the truth was probably “‘somewhere in the 

middle.’” 79 The arbitrator ultimately ordered a suspension for 

inappropriate sexual remarks at work about the woman.

On appeal, the court in Young held there was sufficient 

evidence for the jury to have decided that the source arbitrator’s report was not an ambiguous document or that the 

editor’s interpretation of the report was not rational. The court 

also noted that the editor failed to conduct any investigation 

beyond the records of the original case. The jury could have 

concluded the editor had a reckless disregard of the truth with 

the motive to fit the editor’s desired storyline. Thus, there was 

sufficient evidence to support the jury’s finding of actual malice by clear and convincing evidence.

77 Young v. Gannett Satellite Information Network, 734 F.3d 544 (6th Cir. 

2013).

78 Id. at 545.

79 Id. at 548.
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Similarly, in Nader v. de Toledano,

 80 the D.C. Court of 

Appeals found summary judgment was not appropriate where, 

despite the source material being lengthy, it was not reasonably susceptible to the interpretation given it by the journalist 

defendant. The journalist had stated in a newspaper column 

that a U.S. Senate subcommittee report showed that the plaintiff, a public interest advocate, had falsified and distorted 

evidence to make his case that an automobile model was 

unsafe. The lengthy subcommittee report largely consisted of a 

point-by-point refutation of the advocate’s charges of unsafety. 

Nevertheless, the report concluded unambiguously: “‘[W]e 

believe [the charges] were made in good faith based on the 

information available to him.’” 81

The court in Nader stated that the subcommittee’s report was 

not reasonably susceptible to the interpretation of it advanced 

by the journalist. Thus, the journalist was not immune from 

liability on that ground. Instead, the unambiguous “good faith” 

conclusion set forth in the report afforded a sufficient evidentiary basis from which a reasonable inference of actual malice 

could be drawn. And “[w]here a result turns upon a choice of 

permissible inferences from undisputed evidence, summary 

judgment may not properly be granted.” 82

We determine, for purposes of our summary judgment 

review, that the sources relied upon by the Party were not 

ambiguous as to whether they pertained to J.J., the corporate 

entity, as opposed to Palmtag, in her personal capacity. And, 

as the district court observed, the substance of the Party’s 

statements in the mailers was that Palmtag, as an individual, 

had broken the law, was fined, and had lost her license as a 

result—not that J.J., the corporation, had done so. Attributing 

these acts and consequences to Palmtag personally rather 

80 Nader v. de Toledano, supra note 41.

81 Id. at 37.

82 Id. at 54.
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than to J.J., the corporation, was not a case of descriptive challenges or a malapropism and was not a reasonable interpretation of ambiguous source materials.

The Party does not even attempt to explain how the 

Bureau’s website information was ambiguous as to whether 

J.J.’s or Palmtag’s license had been “[c]anceled.” The website’s information plainly referred to the license status of 

“J.J. Palmtag, Inc.” being canceled. It nowhere referred to 

“Janet Palmtag.”

As for the consent order, the Party claims it was ambiguous 

as to whether the violation described therein was committed by 

Palmtag individually, because she signed it. However, the consent order plainly refers to “J.J. Palmtag Inc. Firm” as the only 

respondent. The order goes on to state that “the Respondent

does not contest the violations alleged,” “[t]his Order constitutes discipline against the Respondent,” and “[t]he Respondent

shall pay a civil penalty to the Commission in the amount of 

five hundred dollars.” (Emphasis supplied.)

Nowhere does the consent order describe that Palmtag 

personally committed these violations or was fined in her 

personal capacity. That the consent order referred to Palmtag 

as the designated broker in charge and a licensed real estate 

broker officer “for the Respondent real estate brokerage firm” 

does not imply that Palmtag was subject to the order in her 

personal capacity. Furthermore, it is not a reasonable interpretation of the consent order that Palmtag personally committed 

the violation or was legally liable in her personal capacity 

for the violation because her signature line describes she was 

signing as “Janet A. Palmtag, Broker Officer.” That signature 

line was preceded by the clear language that she was signing “FOR THE RESPONDENT: Voluntarily agreed to and 

accepted by J.J. Palmtag . . . .”

[20] The Party was aware that J.J. is a corporate entity, 

which, in any event, was plainly reflected in the source materials. Generally, a corporation is viewed as a complete and 
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separate entity from its shareholders and officers. 83 Organizing 

a corporation to avoid personal liability is a legitimate goal 

and is one of the primary advantages of doing business in the 

corporate form. 84

[21] A court will disregard a corporation’s identity only 

where the corporation has been used to commit fraud, violate 

a legal duty, or perpetrate a dishonest or unjust act in contravention of the rights of another. 85 But there was no evidence 

that the Party had reason to believe Palmtag personally used 

J.J.’s identity to commit fraud, violate a legal duty, or perpetrate a dishonest or unjust act in contravention of the rights 

of another.

Instead, Hamilton testified he subjectively believed Palmtag 

was “responsible” for the violations because she owned J.J., 

was the designated broker in charge for J.J., and a licensed 

real estate broker officer for J.J. He considered the fact that the 

consent order was plainly against J.J. “a difference without a 

distinction to me.” Hamilton’s alleged misunderstanding of the 

law does not mean that the source materials were ambiguous 

as to whether Palmtag in her personal capacity had committed 

any violation for which she was fined or that Palmtag’s personal brokerage license had been “[c]anceled.”

We also find that it was not a reasonable interpretation 

of the source materials that the cancellation of J.J.’s license, 

reflected on the Bureau’s website, was because of the violation 

described in the consent decree. The substance of the statement in the political mailer that “Palmtag Broke The Law & 

Lost Her Real Estate License” was that she lost her license 

because of breaking the law. However, the consent decree specifically and plainly stated that the consequence of the violation set forth therein was a fine, and it nowhere indicated that 

83 Christian v. Smith, 276 Neb. 867, 759 N.W.2d 447 (2008).

84 Axtmann v. Chillemi, 740 N.W.2d 838 (N.D. 2007).

85 Christian v. Smith, supra note 83.
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a license revocation would result from the violation or that 

any person’s or entity’s brokerage license would in any way 

be affected by the violation. Similarly, the Bureau information 

for J.J.’s license status nowhere referenced the consent decree 

or any law violation. The implication of “lost” was not that 

Palmtag had somehow misplaced her real estate license but 

that it was forfeited by breaking the law. Even if “canceled” 

could be considered ambiguous to the extent that “lost” is 

a reasonable interpretation of that term, there is nothing in 

the source materials tying the cancellation to the violation 

described in the consent decree.

Because the consent decree and the license status are not 

ambiguous as to whether Palmtag, as opposed to J.J., committed the violation described in the consent decree or as to 

whether Palmtag or J.J. lost a brokerage license because of 

the violation, the Party cannot rely on case law holding that 

publishing a rational interpretation of an ambiguous report is 

insufficient to demonstrate actual malice. The lack of ambiguity in the Party’s only two sources raises the question of 

whether, by accusing Palmtag personally of breaking the 

law and losing her license as a result, the Party deliberately 

distorted unambiguous sources to launch a personal attack, 

which would support actual malice. It is the function of a 

jury to determine Hamilton’s credibility concerning his disregard of J.J.’s separate corporate identity and his rationale 

for assuming the cancellation of J.J.’s license was because of 

the violation.

Moreover, the Party’s statements that were not reasonable interpretations of the source materials were not the only 

evidence presented at the summary judgment hearing that 

could support actual malice. Most apparent, there was a failure to investigate beyond the two sources that plainly implicated only J.J. and plainly did not tie the violation described 

in the consent decree to Palmtag or to the cancellation of 

J.J.’s license. Leaving aside whether some information pertaining to the allegations may have been confidential, the Party 
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presents no argument as to why it could not have investigated 

Palmtag’s license status on the Bureau’s website just as it did 

J.J.’s. The Party also could have requested more information 

from Palmtag. Thus, a jury could find the Party chose not to 

investigate further in a purposeful avoidance of the truth.

Palmtag also presented evidence of possible ill will in the 

form of political motivation to discredit her to the voting 

public. Furthermore, there was a text thread telling Hamilton, 

“Ok that’s not real.” We disagree with the Party’s argument 

that the text thread cannot be considered on appeal in combination with other evidence in determining whether there was 

a genuine issue that the Party acted with actual malice. The 

Party argues that the meaning of the texts is not clear and 

that Palmtag is specifically articulating an argument based on 

the texts for the first time on appeal. Any lack of clarity is a 

matter for the trier of fact and could have been the subject of 

an objection to the text thread. But the record reflects that the 

exhibit was admitted into evidence without objection. While 

an appellate court will not consider an argument or theory 

raised for the first time on appeal, 86 the argument made by 

Palmtag below was that the evidence presented at the summary judgment hearing demonstrated a genuine issue of material fact. The effect of the text thread was before the trial court 

even though it may not have been pointed out with particularity. Viewing the texts in a light most favorable to Palmtag as 

the nonmoving party, a jury could determine it evidenced the 

Party’s awareness that its statements were not true.

Palmtag did not simply rest on allegations and denials but 

provided several specific facts from which a jury could find 

by clear and convincing evidence of actual malice in falsely 

stating that Palmtag had broken the law, been fined, and lost 

her license because of the law violation. A reasonable fact 

finder could find the Party’s attestations of innocence disingenuous. It could instead find that the false and defamatory 

86 Elbert v. Young, 312 Neb. 58, 977 N.W.2d 892 (2022).
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statements were made with a “high degree of awareness of 

. . . probable falsity,” 87 that the Party “entertained serious 

doubts as to the truth” of the statements, 88 or that the Party 

had a necessary awareness of the probable falsehood 89 of the 

statements. Or a reasonable fact finder might reject all of 

those interpretations. There was sufficient evidence to present 

a genuine issue of whether the Party acted with actual malice. 

The court erred in granting summary judgment on the grounds 

that no reasonable juror could find by clear and convincing 

evidence that the Party acted with actual malice.

4. Damages

We turn to the question of whether there was a genuine issue 

that Palmtag suffered actionable harm because of the libelous 

statements. In its cross-appeal, the Party argues the district 

court erred by determining that Palmtag was not required to 

present a genuine issue that she incurred special damages to 

state a claim, which the Party argues is contrary to our decision in Moats. The Party does not assign as error the court’s 

conclusion that Palmtag’s action involves defamation per se. 

The Party also asserts the district court erred in its alternative 

finding of a genuine issue of whether special damages had 

been incurred as a proximate result of the allegedly defamatory statements.

We agree with the district court that because Palmtag’s 

action involves defamation per se, she was not required 

to prove special damages. We therefore do not address the 

district court’s alternative determination that there was sufficient evidence for a jury to find that Palmtag incurred special damages.

[22] In general, the damages under common law that may 

be recovered for defamation are (1) general damages for 

87 See Garrison v. Louisiana, supra note 48, 379 U.S. at 74.

88 See St. Amant v. Thompson, supra note 43, 390 U.S. at 731.

89 See Herbert v. Lando, supra note 50.
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harm to reputation; (2) special damages; (3) damages for 

mental suffering; and (4) if none of these are proved, nominal 

damages. 90

However, we have said that words that are actionable “per 

quod” do not constitute a basis for recovery of damages in the 

absence of a specific allegation of special damages. 91 This is 

in contrast to words that are actionable “per se,” for which we 

have held that no proof of any actual harm to reputation or any 

other damage is necessary for recovery of either nominal or 

substantial damages. 92

By statute, § 25-840.01(1) provides that the plaintiff’s 

recovery in a libel action is limited to special damages unless 

the plaintiff requested a correction and the defendant failed 

to publish one within the time and in the manner specified 

by the statute. Section 25-840.01(2) provides, “This section 

shall not apply if it is alleged and proved that the publication 

was prompted by actual malice, and actual malice shall not be 

inferred or presumed from the publication.” Because Palmtag 

requested a correction, the limitation of § 25-840.01(1) is not 

applicable to her action.

We have said defamation is per se if the words are actionable in themselves because they (1) falsely impute the commission of a crime involving moral turpitude, (2) an infectious 

disease, or (3) unfitness to perform the duties of an office or 

employment, or if they prejudice one in his or her profession 

or trade or tend to disinherit one. 93 We have also said that 

“any language the nature and obvious meaning of which is to 

90 See McCune v. Neitzel, 235 Neb. 754, 457 N.W.2d 803 (1990).

91 See Hruby v. Kalina, 228 Neb. 713, 424 N.W.2d 130 (1988).

92 See, McCune v. Neitzel, supra note 90; Williams v. Fuller, 68 Neb. 354, 94 

N.W. 118 (1903).

93 See, e.g., Matheson v. Stork, 239 Neb. 547, 477 N.W.2d 156 (1991).

See, also, Rodney A. Smolla, Rights and Liabilities in Media Content: 

Internet, Broadcast, and Print § 6:34 (2d ed. Nov. 2023 update); 4 Barry A. 

Lindahl, Modern Tort Law: Liability and Litigation § 35:20 (2d ed. 2023).
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impute to a person the commission of a crime, or to subject 

him to public ridicule, ignominy, or disgrace, is actionable of 

itself” 94 and “[a]ny false and malicious writing published of 

another is libelous per se, when its tendency is to render him 

contemptible or ridiculous in public estimation, or expose him 

to public hatred or contempt, or hinder virtuous men from 

associating with him.” 95

In contrast, we have indicated words are defamation per 

quod if innuendo or explanation is necessary to make a statement clear and understandable or where a communication is 

ambiguous or meaningless unless explained, or prima facie 

innocent, but capable of defamatory meaning. 96

The theory animating the distinction in the treatment of 

damages in per se versus per quod defamation is that words 

classified as defamatory per se are so obviously harmful that 

no proof of damage ought to be required. 97 The common law 

of defamation allows recovery of purportedly compensatory 

damages without any evidence whatsoever of actual loss, if the 

defamation is deemed per se. 98

[23] When the defamation is deemed to be per quod, 

though, the special damages requirement imposes a much 

higher threshold than showing actual loss. Special damages are those capable of accurate determination by some 

means other than the opinion of the judge or jury. 99 Section 

94 World Publishing Co. v. Mullen, 43 Neb. 126, 131-32, 61 N.W. 108, 109 

(1894). See, also, K Corporation v. Stewart, 247 Neb. 290, 526 N.W.2d 

429 (1995).

95 Williams v. Fuller, supra note 92, 68 Neb. at 357, 94 N.W. at 119. 

See, also, K Corporation v. Stewart, supra note 94; Heckes v. Fremont 

Newspapers, Inc., 144 Neb. 267, 13 N.W.2d 110 (1944).

96 Matheson v. Stork, supra note 93.

97 See Smolla, supra note 93, § 6:34.

98 See Gertz v. Robert Welch, Inc., supra note 11.

99 See Hatcher v. McShane, 12 Neb. App. 239, 670 N.W.2d 638 (2003). See, 

also, Southwell v. DeBoer, 163 Neb. 646, 80 N.W.2d 877 (1957).
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25-840.01(1) states in part, “The term special damages, as 

used in this section, shall include only such damages as 

plaintiff alleges and proves were suffered in respect to his or 

her property, business, trade, profession, or occupation as the 

direct and proximate result of the defendant’s publication.” 

Special damages is a subset of actual harm, as actual harm 

is supported by evidence of injury, but the injury need not be 

pecuniary loss. 100 “[T]he only function of the special damages requirement is to protect a defendant from being caught 

by surprise, in cases in which the defendant could not have 

predicted that some readers would have a diminished view of 

the plaintiff’s reputation from the face of the publication.” 101

When a plaintiff is able to plausibly plead and prove special 

damages, the various “‘per se’” rules do not matter, because 

the pleading and proving of special damages will render the 

statement actionable. 102

It has been criticized that the traditional per se versus per 

quod requirements respecting damages

put the plaintiff in a sort of all or nothing game with regard 

to proof of injury: Either special harm was required, in 

which case the plaintiff was faced with the harsh task of 

demonstrating pecuniary loss, or damages were presumed, 

in which case the plaintiff had no burden whatsoever 

regarding evidence of injury. 103

The Restatement (Second) of Torts takes the position that 

the distinction between per se and per quod actions is no 

longer tenable, and all libel is actionable “irrespective of special harm.” 104

[24] We did not decide in Moats to go in the opposite 

direction of the Restatement and hold that special damages 

100 See Rodney A. Smolla, Law of Defamation § 9:35 (2d ed. 2022).

101 Id., § 7:23 at 7-52 to 7-53.

102 Id., § 7:5 at 7-9.

103 See Smolla, supra note 93, § 6:34.

104Restatement (Second) of Torts § 569 at 182 (1977).
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are required to state a claim for all defamation actions, even 

those that are per se. 105 And we find support for the premise 

that pleading and proving special damages is not an additional 

hurdle that a plaintiff in a public libel action must overcome. The U.S. Supreme Court has been clear as to what the 

Constitution requires to balance the plaintiff’s rights against 

the First Amendment’s protections of public debate. Pleading 

and proving special damages is not one of the higher barriers 

the Court has held the public libel plaintiff must surmount.

The Party admits that Moats is the only authority it could 

find to support its argument that Palmtag was required to plead 

and prove special damages in her per se public libel action. 

The district court was correct that Moats contains a misstatement. We did not explicitly say in Moats that a plaintiff in a 

public defamation case must always plead special damages 

regardless of the per se versus per quod nature of the statements. Nevertheless, we made the overly broad statement that 

“[t]he plaintiff in a ‘public-libel’ action must . . . establish 

special damages.” 106

The breadth of that statement had little connection to the 

analysis and holding of the case. The appeal involved a per 

quod public libel action. We concluded that “[b]ecause the 

publications at issue were not defamatory per se, it was necessary for [the plaintiff] to plead the defamatory nature of 

the words and special damages to properly plead his defamation per quod claims.” 107 Furthermore, the cases we cited in 

Moats for the broad statement at issue in no way suggest the 

per se/per quod distinction has been eradicated such that special damages are always required to state a claim in any kind 

of public libel action.

105 See Moats v. Republican Party of Neb., supra note 1.

106 Id. at 422, 796 N.W.2d at 594.

107 Id. at 423, 796 N.W.2d at 594 (emphasis supplied).
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We find no merit to the Party’s argument that even for 

defamation per se, the plaintiff in a public libel action must 

plead and prove special damages. To the extent Moats suggested otherwise, we disapprove of it. We do not at this time 

consider the Restatement’s suggestion that the special damages requirement should be eradicated altogether, as we are 

not presented with a per quod action.

[25] A plaintiff in a per se public libel action is not required 

to plead and prove special damages to state a claim. As 

Palmtag’s action was per se, the court did not err in determining that to overcome the Party’s motion for summary judgment, Palmtag was not required to present a genuine issue that 

she incurred special damages.

VI. CONCLUSION

Viewing the record in the light most favorable to Palmtag 

as the nonmoving party and drawing all reasonable inferences 

in her favor, we determine Palmtag presented sufficient evidence upon which a jury could find by clear and convincing 

evidence that the elements of public figure defamation were 

met. But a jury might also find that Palmtag’s evidence did 

not reach the level of clear and convincing evidence. Because 

this presents a genuine issue of material fact, we reverse the 

judgment of the district court granting summary judgment in 

favor of the Party. We remand the cause for further proceedings consistent with this opinion.

Reversed and remanded for

further proceedings.

Funke, J., not participating.