Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 1
FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
July 27, 2026
UNITED STATES COURT OF APPEALS
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
NARVIN LICHFIELD,
Plaintiff - Appellant,
v. No. 25-4135
KATHERINE KUBLER; NETFLIX,
INC.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:24-CV-00458-JNP-CMR)
Ross P. Meyer of Enara Law, Scottsdale, Arizona (Michael K. Hepworth of Hepworth Legal, Bountiful, Utah, on the briefs) for Plaintiff-Appellant.
Natalie J. Spears of Dentons US LLP, Chicago, Illinois (David W. Tufts and Ian M. Kinghorn of Dentons Durham Jones Pinegar P.C., Salt Lake City, Utah; Gregory R. Naron and Jacqueline A. Domenella of Dentons US LLP, Chicago, Illinois, with her on the brief) for Defendants-Appellees.
Before TYMKOVICH, BACHARACH, and FEDERICO, Circuit Judges.
FEDERICO, Circuit Judge.
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Narvin Lichfield operated boarding schools and programs for
purportedly “troubled teens” for more than three decades. During this time,
these boarding schools – as well as the broader industry – drew attention
from the public and press for allegations of extreme disciplinary techniques
that allegedly crossed the line into physical and mental abuse. Katherine
Kubler is a filmmaker who, as a teenager, spent fifteen months at a facility
for troubled teens that billed itself as a high school (even though it was not
accredited to award diplomas). While she was enrolled, Kubler swore that
she would one day get revenge by making a documentary about her
experience.
Kubler did ultimately create a documentary about her boarding
school. The documentary took the form of a three-part series that also
discussed the larger troubled-teen industry. So, although he did not
supervise or direct the school Kubler attended, Lichfield was featured
during one episode for his affiliation with an industry organization and
other schools for troubled teens. Netflix produced the documentary and
streamed it on its platform. When Lichfield sued Kubler for defamation, he
also named Netflix as a Defendant. The district court dismissed Lichfield’s
complaint because it failed to state a claim for which relief could be granted.
He appealed to this court.
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This dispute, then, brings into conflict two sets of values honored by
our legal system. On the one hand, Lichfield seeks recompense for what he
alleges is unlawful defamation of his character. But, on the other hand,
Kubler and Netflix seek refuge in their free-speech rights to make and
distribute a film about a topic of public importance. Determining the
boundary between these competing interests – free speech versus
defamation – is the topic of this appeal. In the end, we agree with the
district court and affirm.
I
A
Long before Kubler entered the world of professional filmmaking, she
was a troubled high-school student. During her teenage years, she “started
acting out,” by drinking, smoking, and sneaking out at night. The Program:
Cons Cults and Kidnapping, Part 1: Where the F*** Am I?! at 6:37 (Netflix
2024) (hereinafter The Program) (on file with the Clerk’s Office). 1 As Kubler
1 Because this case comes to us on appeal of a motion to dismiss for
failure to state a claim, we accept as true the well-pleaded facts of the operative complaint. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007). Throughout the Amended Complaint, Lichfield references The Program, and its precise content is central to his claims. The parties do not dispute the authenticity of the recording that has been filed with the Clerk’s Office and ask that we treat it as incorporated into the Amended Complaint by reference. Consistent with our jurisprudence, we will do so. Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103 (10th Cir. 2017).
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tells it, she was engaged in “typical teenager stuff” related to a fraught
relationship with her stepmother. Id. Kubler begged her father to send her
“somewhere, anywhere” away from her stepmother. Id. at 6:45. Then,
midway through her sophomore year, Kubler transferred to a private
religious boarding school. After a few months, the boarding school expelled
her for violating its alcohol policy.
Following her expulsion, Kubler waited in the principal’s office for her
father’s arrival. Instead, two strangers arrived with handcuffs. Kubler’s
father had hired them without her knowledge to escort her to a new school:
Academy at Ivy Ridge (Ivy Ridge). Soon after her arrival, Kubler learned
Ivy Ridge was not a typical high school. She was strip searched for
contraband upon her arrival at campus. She would not be free to come and
go. And, until she could prove her good standing, she could not call her
parents on the phone.
Good standing could be earned through compliance with a
multitudinous list of rules that included prohibitions on talking to other
students, making eye contact, and looking out the window. The restroom
could only be used under the supervision of the staff. Compliance with the
rules could earn students “upper-level privileges,” which permitted them to
talk to their peers, wear makeup, and look out the window. Id. at 16:00.
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When students earned enough points to progress through the various levels,
they could finally leave the program.
Ivy Ridge was not a freestanding program. It was affiliated with the
World Wide Association of Specialty Programs and Schools (WWASP).
WWASP itself is no stranger to controversy; it has come under public
scrutiny in connection with allegations of abuse and neglect at affiliated
institutions. See, e.g., World Wide Ass’n of Specialty Programs v. Pure, Inc.,
450 F.3d 1132, 1135–36 (10th Cir. 2006) (detailing news reports). It was
also highly profitable, in part due to steep attendance fees and relatively
low expenses. And, by Kubler’s telling, Narvin Lichfield – whose brother,
Robert, founded WWASP – was instrumental in building WWASP into an
“empire of troubled teen programs.” The Program, Part 3: Follow the Money
at 24:43. The dispute now before this Court is predicated on the character
and truthfulness of statements made about Lichfield’s involvement with
WWASP and several facilities connected with it.
Kubler, for her part, never completed the program at Ivy Ridge or
earned a high-school diploma. Instead, her father pulled her out of Ivy Ridge
after fifteen months. By then, Kubler’s relationship with her father was
severely damaged. In an attempt to get her “big revenge” against the
school’s staff, The Program, Part 1 at 27:15, through which she might “get
all this evidence together” about her experience “and present it to [her]
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dad,” The Program, Part 2: Mind Control at 27:51; accord The Program,
Part 3, at 50:10, Kubler made a documentary about Ivy Ridge and schools
like it, The Program Part 1 at 27:15, 27:47. The series that Kubler directed
and produced, and that Netflix also produced, contains the speech that
eventually led to Lichfield’s lawsuit.
The series’ three episodes are built around and filtered through
Kubler’s personal experience as a child at home and at Ivy Ridge. The first
episode, titled Part 1: Where the F*** Am I?!, displays home video footage
while describing Kubler’s personal conflict with her “evil stepmother” and
her transfer to Ivy Ridge. The Program, Part 1 at 6:30. Kubler later reunites
with other students on Ivy Ridge’s abandoned campus, where they detail
their experiences of physical and sexual abuse at the now-defunct high
school. At one point, Kubler opens a Mike’s Hard Lemonade alcoholic
beverage – possession of which got her sent to Ivy Ridge so many years ago
– before wandering the empty halls.
In Part 2: Mind Control, Kubler again roams the Ivy Ridge campus
holding a Mike’s Hard Lemonade. The narrative focus, though, shifts to
“seminars” at Ivy Ridge that served as the purported backbone of the
program. The Program, Part 2 at 2:00. Two of Kubler’s classmates describe
a session in which they were required to repeat an eight-word mantra with
associated hand movements for eight hours uninterrupted. The narrator
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describes these techniques as tantamount to “literal brainwashing,” handed
down to the “troubled teen industry” from a 1960s-era cult. Id. at 8:57, 9:50,
12:09. Over the course of the episode Kubler interviews a friend’s parent,
sneaks into a seminar for parents of WWASP students, and confronts a
former public relations coordinator for Ivy Ridge. The episode culminates
with a scene in which Kubler confronts her father about her “complicated
feelings” stemming from her time at Ivy Ridge. Id. at 53:40, 55:07. Prior to
the confrontation, Kubler had not seen her father in person for years. In the
scene, her father apologizes for sending her away to Ivy Ridge.
The first two episodes of the series are important for context, but it is
the content of Part 3: Follow the Money that is central to this legal dispute.
The episode begins with one of the series’ recurrent tropes: the camera
displays a bulletin board to which photos, news clippings, and paper
documents have been affixed by thumb tacks. The Program, Part 3 at 00:18.
As the camera cuts between different portions of the bulletin board, Kubler
narrates:
It bothers me how people low on the totem pole end up taking
the fall. And the people at the top seem to get away with murder.
I knew if I really wanted to go after these places, I’d need to
follow the money.
Id.
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Then, as Kubler concludes her remarks, the camera cuts to a wider
shot, in which a silhouetted person – apparently Kubler – stands in front of
the bulletin board and its array of images, newspaper clippings, and a map
of the United States, with string connecting various items. Id. at 00:32.
Most notable for this appeal, though, is the frame shown when Kubler
references “people at the top” seeming to “get away with murder.” See id. at
00:27. At that moment, the camera rests on a newspaper clipping from the
Salt Lake Tribune headlined “As Therapy Hikes Reviewed, Another Teen
Dies in Program.” Id. Next to this clipping is an image of a man who has
not yet appeared in the series. See id. That man is the Plaintiff-Appellant,
Narvin Lichfield. A screenshot of this moment in the record is reproduced
below.
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Id.
This image – along with the corresponding statement – comprises the
first scene or segment of the series that Lichfield challenges in this appeal
as defamatory. By his theory, the juxtaposition of the visuals and narration
falsely implies that he is responsible for a teen’s death.
The second challenged segment appears midway through the episode.
Shortly before it is introduced, Kubler is engaged in an interview with
Lichfield’s estranged son, who describes his father’s decision to open a
school in Costa Rica named Dundee. Id. at 30:20. Kubler then narrates:
“Dundee was only open for nineteen months before authorities were alerted
to abuse, raided the facility, and Narvin was arrested.” Id. at 30:36. The
series displays a clip from an episode of the TV program Inside Edition
contemporaneous to the arrest in which Lichfield told a local news reporter:
“We haven’t done anything here but try to run a school.” Id. at 30:43.
Kubler, again narrating, says: “Narvin didn’t waste any time in rebuilding
his Costa Rican facility into a new program called Pillars of Hope, only
seven months after his previous program was raided.” Id. at 30:53. Although
Lichfield concedes that the facility was raided and he was arrested, he
contends on appeal that this segment is defamatory because it fails to
mention that Costa Rican authorities ultimately dismissed the criminal
charges against him.
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The third challenged segment is prefaced by a screenshot of Lichfield’s
social media post inviting his Instagram followers to join him on a
Wednesday night to sing karaoke. Id. at 47:33. The image then cuts to
Kubler drinking from a pint glass at the karaoke bar while Lichfield takes
the stage to sing “Witchcraft” as performed by Frank Sinatra. Id. at 47:39.
Lichfield dances side to side, and an audio track of Kubler’s narration plays:
It was surreal to see Narvin in person, knowing everything I
know about this guy: the children he abused, the parents he
conned, all the crimes he’s gotten away with. Yet, here he is –
free as a bird, singing Frank Sinatra at a club in Utah. I didn’t
talk to him because I didn’t want to blow my cover. And I don’t
like giving abusers a platform to spew their bullshit.
Id. at 48:04.
The narration fades away, Lichfield returns to his seat, and Kubler
drinks from a shot glass chased with lime before running to the stage. Id.
at 48:30. Kubler narrates: “Unlike the Justice Department or FBI, there’s
nothing I can really do to the Lichfields, except this. But don’t get too
comfortable Narvin. ‘Cuz one way or another, I’m gonna get you.” Id. at
48:42. She and two friends then perform an off-key version of Blondie’s “One
Way or Another” while Lichfield looks on bemused. 2 Id. at 48:55. On appeal,
Lichfield contends that Kubler’s statement about abusing children, conning
2 Kubler sings: “One way or another, I’m gonna find ya, I’m gonna get
ya, get ya, get ya, get ya // One way or another, I’m gonna win ya, I’m gonna get ya, get ya, get ya, get ya.” The Program, Part 3 at 48:55.
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parents, and getting away with crimes is defamatory because it makes
provably false assertions of fact.
In total, the third episode is somewhat less personal than the first two
episodes. Over the course of Part 3, Kubler interviews, inter alia: an
anonymous staffer from Ivy Ridge, a sociologist, a plaintiff’s lawyer, a pair
of journalists, a lawyer who previously served in a state attorney general’s
office, two state legislators, and Lichfield’s son. The episode reviews
WWASP’s purported political connections, and Kubler asks a Utah state
legislator to prevent Lichfield’s brother, Robert, from operating facilities for
troubled teens. The episode, and thus the series, concludes with a clip of
Kubler and her friends burning files from Ivy Ridge while the narrator calls
her audience to action.
B
Lichfield filed the complaint in the District of Utah. He amended his
pleading in short order. In the Amended Complaint, Lichfield pleaded five
causes of action: defamation, defamation per se, false light invasion of
privacy, intentional infliction of emotional distress (IIED), and civil
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conspiracy. Defendants Kubler and Netflix (collectively, Kubler 3) responded
with a motion to dismiss for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6). She argued in support of dismissal that Lichfield’s
defamation claim rested upon statements that are non-actionable under
Utah law and protected by the First Amendment. And, because Lichfield’s
remaining claims are derivative of defamation, she argued, they should be
dismissed for the same reasons.
In the same filing, Kubler submitted a special motion to strike under
state statutory laws governing lawsuits that could chill free expression.
These state laws – commonly styled Anti-Strategic Lawsuits Against Public
Participation (anti-SLAPP) statutes – may provide for, inter alia, attorneys’
fees if a court determines that a lawsuit was filed to chill First Amendmentprotected speech. See Los Lobos Renewable Power, LLC v. Americulture,
Inc., 885 F.3d 659, 662 (10th Cir. 2018). In her special motion, Kubler
argued that Utah and California laws are interchangeable for the purposes
of attorney fee awards and, in the alternative, that California’s anti-SLAPP
statute should apply because Defendants are based there.
3 Kubler and Netflix are jointly represented, filed a joint brief, and
have aligned interests in affirmance of the district court’s opinion. To the extent that there is any daylight between their legal interests, it is not relevant here. For brevity, we refer to their joint arguments with only the lead Defendant’s name.
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Lichfield opposed both the Rule 12(b)(6) motion and the special motion
under anti-SLAPP law. He argued that neither the First Amendment nor
Utah law doomed his claims. He further argued that the district court
should apply Utah’s anti-SLAPP statute, not California’s similar law. Also,
he argued that a district court applying the Utah statute would conclude it
“essentially mimics the language of Rule 12(b)(6)” and could proceed to
apply the anti-SLAPP law by conducting a traditional Rule 12(b)(6)
analysis. Aplt. App. at 241 (citation omitted). This analysis, Lichfield
argued, would result in the conclusion that the Amended Complaint
surmounted the Rule 12 standard and would allow his claims to proceed to
discovery.
The district court saw it otherwise. It determined that all the
contested statements were either opinions protected under state law and
the First Amendment, did not imply any defamatory statements, or were
true statements and thus not actionable. And because Lichfield could not
state a claim for defamation, his remaining derivative claims also failed.
Regarding the special anti-SLAPP motion, the district court declined
to decide whether Utah or California law should apply. Instead, it reasoned
that under either statute, a motion to strike would be available when claims
are subject to Rule 12(b)(6) dismissal. And, because the Rule 12 standard
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was met, the district court concluded that Kubler was entitled to recover
attorneys’ fees and costs.
Lichfield timely appeals.
II
On appeal, Lichfield presents three issues, though only one is truly
central to resolution of the case. The primary question on appeal is the
threshold legal question of whether Lichfield has properly alleged that any of
Kubler’s statements are subject to defamatory meaning. Under Utah
defamation law, Utah constitutional law, and the First Amendment, the
answer is no, so the claims must be dismissed.
Additionally, Lichfield argues that the district court erred in its
application of state anti-SLAPP laws. But any error was invited in the district
court. Lichfield further asks for leave to amend the operative complaint. 4 He
can show no legal basis for that relief. Exercising jurisdiction pursuant to 28
U.S.C. 1291, we affirm.
4 Although Lichfield also argues on appeal that the district court “prematurely dismissed” the Amended Complaint by declining to decide whether he was a public figure for the purposes of the First Amendment, see Op. Br. at 43, there is no error in the district court’s resolution of the case on narrower grounds than Lichfield would prefer. Because the merits of this question are not necessary to decide the appeal, we do not decide them.
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A
We begin with the dismissal of the operative complaint. Because
Lichfield appeals from an order issued under Rule 12(b)(6), the district court’s
determination is reviewed de novo. Hogan v. Winder, 762 F.3d 1096, 1104 (10th
Cir. 2014). In this procedural posture, a court will typically defer to an
operative complaint’s well-pleaded factual allegations and affirm dismissal
only where the plaintiff has failed to state “a claim to relief that is plausible on
its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). However, in
addition to the complaint’s well-pleaded factual allegations, a court may
“consider documents attached to or referenced in the complaint if they ‘are
central to the plaintiff’s claim and the parties do not dispute the documents’
authenticity.’” Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d
1081, 1103 (10th Cir. 2017) (quotation omitted). Here, because Lichfield’s
claims are entirely predicated on a three-part documentary miniseries, we will
treat the Amended Complaint as incorporating the miniseries, which has itself
been filed with both the district court and this court. To the extent that any of
the Amended Complaint’s allegations are in tension with the record video, the
video will govern. See id. at 1101, 1105 (citing Jackson v. Alexander, 465 F.2d
1389, 1390 (10th Cir. 1972)). The parties agree that this is the correct
approach.
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There is another nuance relevant to our review of the Rule 12(b)(6)
dismissal in this case. Under Utah law, “whether a statement is capable of
sustaining a defamatory meaning is a question of law.” Hogan, 762 F.3d at
1106 (alteration adopted) (quoting West v. Thomson Newspapers, 872 P.2d 999,
1008 (Utah 1994)). In cases alleging defamation, courts must determine at the
threshold whether “a publication might be considered defamatory by a
reasonable person” before the case may proceed to discovery and, ultimately, a
jury trial. Id. (quoting Cox v. Hatch, 761 P.2d 556, 561 (Utah 1988)). Thus, as
the parties rightly agree, Lichfield receives no deference when he states that
the contested portions of the series are capable of defamatory meaning – those
are legal conclusions, not factual allegations. Accord Brokers’ Choice, 861 F.3d
at 1100 n.17 (deciding issue of truth on motion to dismiss).
B
Although Lichfield alleged five different causes of action in the district
court, our review on appeal is relatively narrow, at least as a matter of doctrine.
This is because the district court predicated its dismissal order on a holding
that the statements at issue were incapable of defamatory meaning. And
because this element of defamation could not be met, the district court held
that Lichfield’s derivative claims of defamation per se, IIED, and civil
conspiracy also failed. Lichfield does not dispute this reasoning on appeal.
Instead, he argues that we should reverse the dismissal of the derivative
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claims because the district court erred by holding the challenged statements
were not defamatory as a matter of law. Thus, Lichfield’s primary substantive
challenge requires us only to determine whether the three contested segments
of The Program: Part 3 are capable of defamatory meaning.
This case did not arise on a federal claim, and the district court exercised
jurisdiction based on the parties’ diversity of state citizenship. See 28 U.S.C.
§ 1332. A federal court exercising jurisdiction on the basis of diversity applies
state substantive law, Racher v. Westlake Nursing Home Ltd. P’ship, 871 F.3d
1152, 1162 (10th Cir. 2017), and here the parties agree that Utah law applies
to construe Lichfield’s claims, see Op. Br. at 12; Resp. Br. at 26.
This court has recognized four elements of Utah defamation law, as
enumerated by the Utah Supreme Court: “(1) that the defendants ‘published
the statements’; (2) that the ‘statements were false, defamatory, and not
subject to any privilege’; (3) ‘that the statements were published with the
requisite degree of fault’; and (4) that ‘their publication resulted in damage’ to
the plaintiff.” Hogan, 762 F.3d at 1105 (quoting West, 872 P.2d at 1007–08).
Here, only the second element is at issue: whether the statements were false,
defamatory, and not privileged by law.
Courts have enumerated several ways in which a statement might fail
to meet this element. For example, if the statement is itself literally true and
does not implicitly “convey a false representation of fact,” then it is not capable
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of defamatory meaning. Id. at 1106 (quoting Dixson v. Newsweek, Inc., 562 F.2d
626, 631 (10th Cir.1977)). Even if the challenged statement may not be literally
true, where “a reasonable reader [or viewer] would not accept the statement[]
at face value,” then it is not defamatory. Hogan, 762 F.3d at 1106. Additionally,
if a statement does not “impeach[] an individual’s honesty, integrity, virtue, or
reputation,” then it is not defamatory under Utah law. West, 872 P.2d at 1008.
The First Amendment and Utah’s constitutional law each also provide
protection for certain opinion statements. West, 872 P.2d at 1015, 1017;
Jefferson Cnty. Sch. Dist. No. R-1 v. Moody’s Investor’s Servs., Inc., 175 F.3d
848, 853 (10th Cir. 1999).
1
Applying these legal principles to the contested segments in the series is
the challenge of this appeal. Consider first the photo of Lichfield tacked to a
bulletin board, juxtaposed to a newspaper headline about a teen’s death. To
refresh: this scene appears at the opening of Part 3, in which the camera
quickly moves from point to point on the bulletin board filled with images from
Kubler’s investigation. She narrates: “It bothers me how people low on the
totem pole end up taking the fall. And the people at the top seem to get away
with murder.” The Program, Part 3 at 00:27. As Kubler narrates, the camera
rests on a newspaper clipping from the Salt Lake Tribune headlined “As
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Therapy Hikes Reviewed, Another Teen Dies in Program.” Id. Next to it is the
image of Lichfield. See id.
Lichfield argues that the photo, newspaper clipping, and narration
combine to create a defamatory message: that he was involved in the death of
a child. 5 This purportedly defamatory message was never directly stated in the
series. Instead, “it is the implication arising from the statement and the
context in which it was made,” that “forms the basis of [Lichfield’s] claim.”
West, 872 P.2d at 1011.
A defamation-by-implication claim arising under Utah law is reviewed
to determine whether the “the gist of the defendant’s statement, rather than
its literal meaning is ‘false, defamatory, and not subject to any privilege.’”
Hogan, 762 F.3d at 1105 (quoting West, 872 P.2d at 1007). In examining the
gist of the episode’s challenged segment, courts “conduct a context-driven
assessment of the alleged defamatory statement and reach an independent
5 In the Amended Complaint, Lichfield characterized this segment of
the series as defamatory because it implies he was “responsible for a murder,” Aplt. App. at 17, “either facilitat[ed] or [was] complicit in murder,” id. at 26, 28, 32, “involved in a murder,” id. at 34, and because it implicitly “accused [him] of murder, id. at 30. In his district court opposition to the motion to dismiss, Lichfield argued that he was falsely accused of “being complicit in or getting away with murder.” Id. at 225; accord id. at 230, 232, 242, 245. To the extent that Lichfield attempts to argue a broader theory on appeal – see, e.g., Op. Br. at 35 (construing the series as alleging that “his actions contributed to deadly outcomes in the troubled-teen industry”) – it is outside the scope of our review. United States v. Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019).
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conclusion about the statement’s susceptibility to a defamatory
interpretation.” O’Connor v. Burningham, 165 P.3d 1214, 1222 (Utah 2007). If,
in context, “a reasonable reader would not accept the statements at face value,”
then “the statements do not cause damage to the plaintiff’s reputation and are
therefore not defamatory.” Hogan, 762 F.3d at 1106 (citing Mast v. Overson,
971 P.2d 928, 933 (Utah Ct. App. 1998)). “In this evaluation of context, we
should examine: (1) the words themselves and their implications; (2) the entire
article or message; (3) the events or disputes that gave rise to the article; and
(4) the likely effect on the reasonable reader.” Id. (citing Dan B. Dobbs, Paul T.
Hayden, and Ellen M. Bublick, The Law of Torts § 526 (2d ed. 2014)).
We start by considering the spoken words. Here, Lichfield complains of
the narrative statement that “the people at the top seem to get away with
murder,” in conjunction with a flash to the newspaper headline stating that
“Another Teen Dies in Program.” The district court was correct that the phrase
“get away with murder” is a “common idiom.” Aplt. App. at 281. Indeed, it is
“usually used figuratively to describe someone who does something very bad or
wrong without being criticized or punished.” Get Away with Murder, MerriamWebster.com, https://perma.cc/R4EB-5ZUT. It is also true, though, that the
term may be used in a literal sense to describe a person’s evasion of culpability
for homicide. See, e.g., Jed S. Rakoff, Getting Away With Murder, New York
Review of Books, Dec. 2020 (describing allegations that corporate executives
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“have literally gotten away with murder” by virtue of deaths connected to
faulty products); Brown v. Hearst Corp., 54 F.3d 21, 25 (1st Cir. 1995) (treating
rhetorical question of whether a person could “get away with murder” as
contributing to a TV program’s suggestion that a man had killed his estranged
wife). Here, to the extent that the term “get away with murder” could be taken
literally, the headline’s words “Teen Dies” might bolster that understanding.
That the challenged phrase may – in the abstract – denote Lichfield’s proffered
meaning does provide some evidence in Lichfield’s favor. But this is far from
dispositive on its own. West, 872 P.2d at 1009 n.15.
Unfortunately for Lichfield, there is little else that supports his
argument. In analyzing the “entire . . . message,” Hogan, 762 F.3d at 1106, it
is helpful to bear in mind that a “writing or program is normally viewed as a
whole.” Brown, 54 F.3d at 27 (citing William Prosser & Page Keeton, Torts 781
(rev. ed. 1984)). Because the statements challenged in this case arise in the
visual medium of documentary film, we find especially helpful the observation
that “literary context” may be “critical in interpreting” the series for the
existence of defamatory statements. Dobbs at § 526 (2d. ed. 2026). And in
viewing all three episodes of the documentary, we agree with the district court
that the series repeatedly uses a recurrent trope for an investigative program:
a bulletin board filled with documents, maps, images, and news clippings to
visually symbolize the effort toward and status of an ongoing investigation.
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See, e.g., The Accountant 2 (Artists Equity 2025); The Wire, Game Day (HBO
2002); see generally Only Murders in the Building (Hulu 2021). But the
contents of the bulletin board do not necessarily tell a coherent visual story.
For instance, in Part 1, the camera pans behind Kubler’s back while she
looks at the bulletin board and narrates: “For the past decade, I’ve been
investigating the program[.]” The Program, Part 1, at 2:11. At this point and
from this angle, the bulletin board contains photos of a national politician
juxtaposed with a publication titled “Parent Support News” and near a news
clipping headlined “Czech school accused of torturing pupils.” See id. No
reasonable viewer would perceive this juxtaposition to allege that the politician
endorses “Parent Support News” as a publication or was involved in torture
overseas. Instead, a reasonable viewer would understand that the bulletin
board is filled with partially refined grist for the mill that is Kubler’s
investigation into the troubled-teen industry. It may be that placement on the
board signifies some degree of relevance to her investigation, but the visual
presentation does not go so far as to convey a conclusive link between items
and images by virtue of their proximity to one another on a bulletin board.
When our view of the series becomes wider, Lichfield’s claim is further
imperiled. At the time the viewer encounters the challenged segment, Lichfield
has not yet even been introduced by name. And from that point forward, there
is no other mention – throughout the entirety of the three-hour series – of
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death, murder, or homicide as those terms could be taken to relate to Lichfield.
The closest Kubler ever gets to this point is a non-specific reference to “crimes.”
See infra. And the primary and motivating event that gave rise to the series,
see Hogan, 762 F.3d at 1106, was not a death within a facility but instead
Kubler’s reckoning with her adolescent experience at Ivy Ridge.
The totality of the first challenged segment consists of a passing visual
juxtaposition and the use of an idiomatic expression. Any reasonable viewer
would understand that if Kubler had meant to accuse Lichfield of involvement
in a teen’s death, she would say more and say it explicitly at some point in the
series. Thus, in this context, no reasonable viewer could accept the phrase
“seems to get away with murder” at face value, cf. Hogan, 762 F.3d at 1106,
but would instead understand it to be “exaggerated rhetoric intended to spark
the debate,” CACI Premier Tech., Inc. v. Rhodes, 536 F.3d 280, 301 (4th Cir.
2008), about accountability for leaders in the troubled-teen industry. The first
challenged segment is not defamatory as a matter of law.
2
We next turn to the second segment at issue, wherein Kubler discusses
Lichfield’s arrest in Costa Rica. About halfway through Part 3, the challenged
segment is introduced by an interview with Lichfield’s son. After the son
describes Lichfield’s decision to open a school in Costa Rica called Dundee,
Kubler narrates: “Dundee was only open for nineteen months before
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authorities were alerted to abuse, raided the facility, and Narvin was
arrested.” The Program, Part 3 at 30:36. The series displays a clip from an
episode of Inside Edition contemporaneous to the arrest and Kubler further
narrates: “Narvin didn’t waste any time in rebuilding his Costa Rican facility
into a new program called Pillars of Hope, only seven months after his previous
program was raided.” Id. at 30:53.
Lichfield contends that the challenged segment is made defamatory not
by what it says but by what it does not say. That is, his Amended Complaint
alleges that he was defamed because the series mentions the arrest “without
disclosing that he was exonerated, and all charges dismissed at the
prosecutor’s request.” Aplt. App. at 23. According to the Amended Complaint,
this omission would lead a reasonable viewer to wrongly conclude that he was
convicted of child abuse.
Where an allegation of defamation is predicated on omission rather than
commission, the standard for liability is material falsity. Brokers’ Choice, 861
F.3d at 1108. That is, so long as the matter published is substantially true, the
First Amendment will prohibit liability even if the publisher “failed to include
additional facts which might have cast plaintiff in a more favorable or balanced
light” or decided “to omit facts that may place the plaintiff under less harsh
public scrutiny.” Id. (quotations omitted). And a court will look past “minor
inaccuracies” to find a statement substantially true “so long as ‘the substance,
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the gist, the sting’” of the challenged statement “can be justified.” Masson v.
New Yorker Mag., Inc., 501 U.S. 496, 516–17 (1991) (quotation omitted). On
the other side of the coin, a statement is materially false only if it “produces ‘a
different effect on the mind of the [viewer] from that which the pleaded truth
would have produced.’” Schwartz v. Am. Coll. of Emergency Physicians, 215
F.3d 1140, 1146 (10th Cir. 2000) (quoting Masson, 501 U.S. at 517).
To support that he was defamed by omission, Lichfield attempts to
distinguish and leverage the difference between an arrest and a criminal
conviction. However, such a distinction must be considered against the
substantial truth doctrine. After all, this court has credited reasoning that
although there is “some difference between being a suspected participant in a
heinous bombing and being a material witness in the investigation” of that
bombing, a defamation action cannot proceed on such a distinction. Bustos v.
A & E Television Networks, 646 F.3d 762, 768 (10th Cir. 2011) (citing Nichols
v. Moore, 477 F.3d 396, 398, 401 (6th Cir. 2007)). So, to the extent that a
“respectable community member” would find the difference between an arrest
and a conviction “significant enough to make the misstatement actionable,” id.,
we doubt that same viewer would reason in the first instance that Lichfield’s
arrest was tantamount to his guilt and subsequent criminal conviction. That
is, we do not see how the reasonable viewer could be ignorant of the difference
between arrest and conviction but knowledgeable enough to credit a dismissal
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for lack of evidence. Even assuming away ad arguendo the inherent tension in
Lichfield’s theory, his argument has a bigger problem.
That problem is context. “Trying to focus on the defamatory words alone
would be like trying to appreciate a pointillist painting by Seurat with a
magnifying glass—the telling pattern would be lost in a maze of dots.” Hogan,
762 F.3d at 1106 (quoting Dobbs at § 526 (2d ed. 2014)). The relevant context
here is that throughout the series Kubler calls for law enforcement and
government officials to investigate and punish executives in the troubled-teen
industry. See, e.g., The Program, Part 3 at 49:30. Indeed, the very thesis of
Kubler’s policy stance in the third episode is that executives like Lichfield have
evaded liability for their mistreatment of children. And just after the
challenged segment, Kubler narrates that Lichfield re-opened the Costa Rican
facility seven months after the raid and his arrest. See The Program, Part 3 at
30:53. Thus, if the series had included the additional facts pleaded in the
Amended Complaint – that charges “were voluntarily dropped by the public
prosecutor,” which is “a nearly unprecedented outcome given the severity of
the underlying allegations,” Aplt. App. at 24 – the gist of the challenged
statement would remain the same. Or, in other words, the inclusion of this
additional information would produce no “different effect,” Schwartz, 215 F.3d
at 1146, than that already conveyed: executives in the troubled-teen industry
tend to avoid legal liability for what the speaker argues to be misconduct.
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Additionally, a series such as The Program will always be subject to an
editing process that “obviously entails professional judgment. In this process
material that is flattering or critical of a particular person may be included or
eliminated.” Machleder v. Diaz, 801 F.2d 46, 54 (2d Cir. 1986). A person who
is the subject of the speech is not entitled to hold the editor’s pen or exercise a
producer’s review merely because he is the subject of a given segment or article.
Just as a state legislature may not require newspapers to publish the
responses of political candidates to unfavorable stories, Miami Herald Pub. Co.
v. Tornillo, 418 U.S. 241, 258 (1974), a private plaintiff is not entitled to the
publication of every fact that might cast him “in a more favorable or balanced
light,” Brokers’ Choice, 861 F.3d at 1108 (quotation omitted). So long as there
is no statement of material falsehood – implied or otherwise – the director,
editor, and producer must be free to exercise their collective editorial
discretion.
Here, the “substance,” “gist,” and “sting” of the challenged statement
“can be justified.” Masson, 501 U.S. at 516–17. In other words, Lichfield has
not shown this speech contained material falsehood. And without material
falsity, there has been no defamation. Brokers’ Choice, 861 F.3d at 1108. The
district court correctly found that the purported omission cannot render the
truth of this segment defamatory. We agree that the second challenged
segment is also not susceptible to defamatory meaning as a matter of law.
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3
We turn now to the third challenged segment to determine whether it is
susceptible to a defamatory meaning. The scene in question begins at a Utah
karaoke bar, where Kubler drinks from a pint glass and Lichfield performs a
song first recorded by Frank Sinatra. The Program, Part 3 at 47:39. While
Lichfield dances, Kubler narrates:
It was surreal to see Narvin in person, knowing everything I
know about this guy: the children he abused, the parents he
conned, all the crimes he’s gotten away with. Yet, here he is –
free as a bird, singing Frank Sinatra at a club in Utah. I didn’t
talk to him because I didn’t want to blow my cover. And I don’t
like giving abusers a platform to spew their bullshit.
Id. at 48:04. Once Lichfield has returned to his seat, Kubler takes a drink
from a shot glass chased with lime before performing Blondie’s “One Way
or Another” with two friends. Id. at 48:30.
On appeal, Lichfield contends that Kubler’s narrative statement is
defamatory because it makes provably false assertions of facts. This is the
closest call of the three challenged segments. But, ultimately, like the
statements associated with the first two segments, Kubler’s statements are
not defamatory as a matter of law.
The inquiry again centers on whether the “statements were false,
defamatory, and not subject to any privilege.” Hogan, 762 F.3d at 1105
(quoting West, 872 P.2d at 1007–08). When determining whether a
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statement is defamatory, the inquiry consists of “a context-driven
assessment of the alleged defamatory statement.” O’Connor, 165 P.3d at
1222. And our contextual analysis relies on the four factors discussed above:
“(1) the words themselves and their implications; (2) the entire article or
message; (3) the events or disputes that gave rise to the article; and (4) the
likely effect on the reasonable reader.” Hogan, 762 F.3d at 1106.
Also relevant is a question of privilege. Article I of the Utah
Constitution protects expression of opinion even where that opinion might
otherwise be defamatory. West, 872 P.2d at 1017. And the Utah Supreme
Court has provided a non-exhaustive four factor test to discern whether a
given statement is either factual – and thus potentially susceptible to
defamatory meaning – or privileged opinion. See id. at 1018. The factors
include:
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1) “[T]he common usage or meaning of the words used;”
2) “whether the statement is capable of being objectively verified as
true or false;”
3) “the full context of the statement – for example, the entire article
or column – in which the defamatory statement is made; and”
4) “the broader setting in which the statement appears.”
Id. (citing Ollman v. Evans, 750 F.2d 970, 979 (D.C. Cir. 1984) (en banc)). 6
The First Amendment does not provide “a wholesale defamation
exemption for anything that might be labeled ‘opinion.’” Milkovich v. Lorain J.
Co., 497 U.S. 1, 18 (1990). But similar principles as those applicable under the
Utah Constitution are operative, including a requirement that the plaintiff
show proof of both fault and falsity, Philadelphia Newspapers, Inc. v. Hepps,
475 U.S. 767, 776 (1986), thus exempting from liability statements made by
media defendants on matters of public concern that constitute only “rhetorical
6 This non-exhaustive list of factors bears some resemblance to the
factors relevant to determining whether a statement’s context renders it non-defamatory despite its literal words. Cf. Hogan, 762 F.3d at 1106 (citing Dobbs at § 526 (2d ed. 2014)). The partial overlap makes sense: there, the inquiry is whether, in context, a statement is defamatory and “convey[s] a false representation of fact.” Id. (quotation omitted). Here, the inquiry is whether the statement is a privileged opinion rather than a factual assertion. We recognize, as a general matter, that opinions privileged by the Utah Constitution might also (though not always) independently fail to constitute defamation in the first instance because they convey no objectively verifiable fact.
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hyperbole,” Greenbelt Co-op. Pub. Ass’n v. Bresler, 398 U.S. 6, 14 (1970). And
statements that may not “‘reasonably be interpreted as stating actual facts’
about an individual” are protected. Milkovich, 497 U.S. at 20 (alteration
adopted) (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50 (1988)).
These First Amendment principles can reasonably be said to protect at least
“evaluative opinions.” Moody’s Investor’s Servs., 175 F.3d at 853. This means
that statements that are “too indefinite to be proven true or false,” that are not
subject to proof of falsity by objective evidence, or that are based on factual
premises that have already been “fully disclosed” are exempt from liability
under the First Amendment. Id. at 853–54 (collecting cases).
Kubler argues on appeal that her statements made at the karaoke bar
are protected by the constitutions of both the United States and Utah. We
agree. In this posture, we determine whether the First Amendment protects
Kubler’s statements by looking to whether they are mere evaluative opinions
constituting “rhetorical hyperbole” or “imaginative expression[]” rather than
“stating actual facts” about Lichfield. Mink v. Knox, 613 F.3d 995, 1005 (10th
Cir. 2010) (quotation omitted). Because this analysis overlaps heavily with
Utah’s constitutional analysis, see West, 872 P.2d at 1018, we will discuss the
doctrines in parallel.
Begin with the introductory clause: “It was surreal to see Narvin in
person[.]” The Program, Part 3 at 48:04. Because it describes the experience of
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seeing Lichfield in person, we can infer that the clause is drawn from the
speaker’s personal experience. This conclusion is further reinforced by the
word “surreal,” which itself is a subjective, qualitative descriptive term.
Because there is nothing inherently surreal about seeing a person singing
karaoke, we can easily infer that Kubler is describing her personal and
subjective experience in this segment.
And, in the next portion of the sentence, the narrator makes explicit the
reason for her experience of sur-reality: her personal knowledge. She
continues: “knowing everything I know about this guy: the children he abused,
the parents he conned, all the crimes he’s gotten away with.” Id. at 48:07. Here,
in referencing what she knows, Kubler ties the subjectivity of her experience
to purportedly real-world occurrences. But the question remains whether these
occurrences are “capable of being objectively verified as true or false.” West,
872 P.2d at 1018. Or, in the language of the First Amendment, whether they
are “evaluative opinions,” that are “too indefinite to be proven true or false,”
Moody’s Investor’s Servs., 175 F.3d at 853, or “rhetorical hyperbole” that falls
short of “stating actual facts” about Lichfield. Mink, 613 F.3d at 1005.
Kubler makes three allegations that she presents as personal knowledge.
The first is that there are children whom Lichfield “abused.” This could be
understood in a certain context to mean specific types of abuse. For instance,
if a prosecutor at a criminal hearing in a Utah courtroom represented to a judge
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that a particular person abused children, a reasonable listener would
understand that to be an accusation of violating the state’s prohibition on child
abuse. See Utah Code Ann. § 76-5-109. But there are other meanings that the
relevant term “abused” can and does take in common speech. Elsewhere in the
series, the term “abuse” is used to refer to Ivy Ridge staff members’ use of
physical restraints that seem to at least border on assault. See, e.g., The
Program, Part 1 at 33:20. This term is also used to refer to an adult’s sexual
exploitation of juveniles. See id. at 41:45; The Program, Part 2 at 59:20. But it
is additionally used to refer to allegations of “isolation” and “brainwashing.”
The Program, Part 2 at 14:44.
In the Amended Complaint, Lichfield concedes that the term may be
used malleably. He alleges:
The [s]eries presented allegations of “abuse” that conflate loose
definitions of abuse with actual claims of legal abuse,
characterizing the military academy-style discipline of grossly
troubled and criminally convicted teenagers (such as by turning
ninety degrees at corners) as abuse while then accusing youth
programs it claims Narvin was involved with of legitimate abuse,
such as assault.
Aplt. App. at 18.
Dictionaries confirm that the term can take a broad range of meanings.
People have been abused when they are “treat[ed] without consideration or
fairness,” Abuse, Webster’s Third New International Dictionary 8 (2002),
“treat[ed] . . . with cruelty or violence,” Abuse, New Oxford American
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Dictionary 7 (3d ed. 2010), or “hurt or injure[d] by maltreatment,” Abuse,
American Heritage Dictionary of the English Language 8 (5th ed. 2016). These
broader definitions surely capture conduct that would fall outside the scope of
criminal statutes. So, we will need to reference more than just the literal words
that are challenged. Here, again, context is critical.
Turning back briefly to our hypothetical criminal proceeding, we would
say that the “full context” of a prosecutor’s statement would incorporate the
“common usage” of the words in that setting to mean that the prosecutor
referred to a violation of Utah’s criminal law. See West, 872 P.2d at 1018. And
such a statement would be “capable of being objectively verified,” presumably
by a jury or other factfinder responsible for adjudicating guilt. See id. But when
looking to the “full context” of Kubler’s statement and the “broader setting in
which [it] appears,” West, 872 P.2d at 1018, we reach a different conclusion.
To begin with, Kubler is not a prosecutor, and she did not speak in the
context of a criminal hearing. She spoke, instead, in a narrative dubbed over
top of video showing people drinking, dancing, and singing karaoke. Shortly
after the challenged segment, Kubler, speaking to the camera from a front
porch, underlines her lack of legal training. During this monologue she
concedes that she does not know if a law enforcement agency will investigate
Lichfield, whether he will be subject to prison time, or whether he will be
subject to “whatever punishment is due for people who abuse children.” The
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Program, Part 3 at 49:45. After all, Kubler concedes, “I’m not a law
enforcement agency, I’m just a kid trying to expose the truth. And it really just
started out just to show my dad because he didn’t believe me.” Id. at 50:05.
Indeed, Kubler is the quintessential unreliable narrator. She admits that
she is “not a real journalist” and more of an “amateur gumshoe.” Id. at 3:11.
Elsewhere in the series she compares herself to the wrongly-imprisoned
protagonist in The Count of Monte Cristo and acknowledges that she returned
to Ivy Ridge to get “revenge.” The Program, Part 1 at 27:47. And this story of
revenge is expressly personal. In the series’ early segments, she describes
“look[ing] back at” her home videos “and try[ing] to pinpoint where things went
wrong.” Id. at 5:05. She describes her mother’s death from cancer, id. at 5:32,
and her father’s re-marriage to her “evil stepmother,” id. at 6:08. Kubler
recounts that when things “got really bad at home,” she began “beg[ging] her
dad to go somewhere, anywhere, as long as [Kubler] didn’t have to stay with”
the stepmother. Id. at 6:46. The series explains that Kubler enrolled in a
religious boarding school, and then, upon getting expelled, was taken to Ivy
Ridge.
This is not only an origin story but a personal narrative framework
around which the series is built. It is interspersed with clips from Kubler’s
childhood home videos, see, e.g., id. at 4:31; The Program, Part 3 at 51:58, and
she repeatedly cries while discussing the effect of her experience at Ivy Ridge
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on her familial relationships, see, e.g., The Program, Part 2 at 21:40
(conversation with sisters); id. at 53:10 (conversation with father); The
Program, Part 3 at 50:05 (monologue to camera). While interviewing a
purported “cult expert,” Kubler says that she’s “been going through a yearslong process to try to deprogram” her father from what she believes to be a cult.
The Program, Part 2 at 42:25. She cuts off in-person communication with him
and reproduces images of his emails on screen. See, e.g., id. at 43:11. When
they meet in person for the first time in years, she records it. Id. at 54:20. The
meeting is not exactly mutually amicable. When he arrives, he is apparently
unaware that he was going to be recorded. The first thing she asks him is:
“What do you have to say for yourself?” Id. at 54:50.
In addition to centering her familial relationships in the narrative,
Kubler also discusses the effects of her childhood experiences in the troubledteen facility on her mental health. When burning files apparently taken from
Ivy Ridge’s abandoned campus, she tells her friends: “[T]his is therapy.” The
Program, Part 3 at 59:40. She is also shown apparently engaging in literal talk
therapy, id. at 57:34, and discusses her symptoms of complex post-traumatic
stress disorder, id. at 56:58, and anxiety, which she attributes to her time at
Ivy Ridge, The Program, Part 2 at 57:45.
Kubler does not just articulate these negative experiences and outcomes
and attribute them to the troubled-teen industry, she also advocates for public
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policy changes and law enforcement intervention. When interviewing a Utah
state senator, she asks him to watch the series to determine if Robert Lichfield
– the Plaintiff-Appellant’s brother – should be put on a “blacklist.” The
Program, Part 3 at 46:40. In a different segment, she calls for law enforcement
“get their shit together and investigate.” Id. at 49:45. And in the concluding
minutes of the series, she broadens her demand for change: “There are
thousands of children still trapped in these programs . . . the abuse of a child
is the business of anyone who knows about it. And now you know.” Id. at
1:03:35.
This is all to say that, contrary to the operative complaint, the series does
not “present[] itself as an objective documentary” as a reasonable viewer would
understand it. Contra Aplt. App. at 16. Kubler admits that she has an axe to
grind and that her films are intended to be a piquant commentary on boarding
schools for troubled teens. The series Kubler created is, at times, highly
personal. It seeks to convince her father that her complaints are non-frivolous.
And, simultaneously, it seeks to motivate law enforcement, legislators, and the
public to modify their positions on the troubled-teen industry. Given this
operative context and the broad range of meanings that the word “abused” can
take, it is impossible to objectively verify whether or not Lichfield abused
children in the meaning expressed by this segment.
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In fact, a reasonable viewer would understand that Kubler refers to
abuse in this context not to accuse Lichfield of some discrete act never aired,
but to argue that he is responsible for conduct facilitated by WWASP that – in
her view, and described elsewhere in the series – should be considered abuse,
whether or not it is violative of a particular criminal statute. As Lichfield
concedes on video, he’s “either a sinner or a saint based on whatever argument
you want to believe.” The Program, Part 3 at 24:01. Kubler wants you to believe
Lichfield is a sinner, not a saint. That is precisely the sort of subjective view
that the Utah Constitution protects as privileged opinion. See West, 872 P.2d
at 1018. And, similarly, under the First Amendment, she has stated
“evaluative opinions,” Moody’s Investor’s Servs., 175 F.3d at 853, consisting of
– at most – “rhetorical hyperbole,” Greenbelt, 398 U.S. at 14.
Kubler’s references to “the parents [Lichfield] conned,” and “all the
crimes he’s gotten away with” do nothing to change this conclusion. See The
Program, Part 3 at 48:04. Like “abused,” the term “conned” takes a broad range
of meanings. And it is used earlier in the episode to refer to WWASP’s business
model of “holding children hostage in remote locations with unqualified staff,
while they con parents with cult-like seminars and collect the checks.” Id. at
22:20. So, again, the context shows that Kubler is not accusing Lichfield of
some separate criminal fraud but instead critiquing a business model that she
views and presents as illegitimate.
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This court has previously credited the proposition that “lying” may be
nonactionable hyperbole because it applies to a “spectrum of untruths.” See
Brokers’ Choice, 861 F.3d at 1136 n.92 (citing Underwager v. Channel 9
Australia, 69 F.3d 361, 367 (9th Cir. 1995). And we have also recognized that
the First Amendment protected a news broadcast’s opinion that a particular
product was a “scam,” Moody’s Investor’s Servs., 175 F.3d at 854 (citing NBC
Subsidiary (KCNC-TV), Inc. v. Living Will Ctr., 879 P.2d 6, 11–12 (Colo. 1994)
(en banc)), because the statement expressed “nothing more than his judgment
that people need not pay for a [certain product] because they can get [the most
valuable portion] free,” Living Will Ctr., 879 P.2d at 11. The same principle
applies here. Indeed, its application is even more powerful where it is
presented not by a traditional broadcast journalist but by a self-admitted
“amateur gumshoe” who thinks of herself as a “kid” and admits she is out for
“revenge.”
For its part, “crime[]” can reasonably be said to refer to conduct
prohibited by the broad scope of the criminal law. To the extent that Kubler
could be alleging that Lichfield violated some already extant criminal statutes
(and is not merely arguing for a shift in public policy to create new substantive
crimes), her amorphous allegations are untethered from specific allegations of
criminal activity that could be actionable under defamation laws. This sort of
general reference to criminal activity is the sort of thing that is not “capable of
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being objectively verified as true or false,” West, 872 P.2d at 1018, because
“there is simply no objective evidence that could prove that [it is] false,”
Moody’s Investor’s Servs., 175 F.3d at 854.
The broad-sweeping and inherently subjective language of Kubler’s
statements, in conjunction with context that exacerbates their subjectivity,
render her speech protected as privileged opinion under the Utah Constitution
and as evaluative opinion under the First Amendment. The district court
correctly held that Lichfield failed to allege a statement capable of defamatory
meaning in this third contested segment.
C
We next turn to Lichfield’s anti-SLAPP arguments made on appeal,
which differ from the argument he made before the district court. On appeal,
Lichfield argues that “state anti-SLAPP laws do not apply in federal diversity
actions under Erie.” Op. Br. at 48 (bolding and capitalization omitted).
Additionally, he argues that the district court independently erred by treating
the anti-SLAPP standard as equivalent to Rule 12(b)(6) and “impos[ing] a
consequence (fee-shifting) that would not normally attach” to dismissal under
that Rule. Id. at 53. But Lichfield made neither of these arguments in the
district court. In fact, his district court arguments were directly contrary to the
arguments now made on appeal.
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The invited error doctrine “prevents a party who induces an erroneous
ruling from being able to have it set aside on appeal.” United States v. Burson,
952 F.2d 1196, 1203 (10th Cir. 1991). Or, stated otherwise, it “precludes a party
from arguing that the district court erred in adopting a proposition that the
party had urged the district court to adopt.” Peterson v. Martinez, 707 F.3d
1197, 1208 (10th Cir. 2013) (quoting United States v. DeBerry, 430 F.3d 1294,
1302 (10th Cir. 2005)). Because the doctrine only applies when the party has
decided to argue a particular point, it is treated as a species of waiver, rather
than forfeiture. Id. (citing United States v. Zubia-Torres, 550 F.3d 1202, 1206
(10th Cir. 2008)).
The doctrine applies here. In the district court, Kubler filed an omnibus
motion to dismiss under Rule 12(b)(6) and to strike pursuant to state antiSLAPP laws. In the motion, she argued that Utah and California anti-SLAPP
laws are identical for the purposes of this case, and – in the alternative – that
the district court should apply California’s law. Lichfield filed a brief in
opposition. On the first page of his brief, he included a footnote stating:
“Lichfield argues that the Utah [anti-SLAPP law] should be applied to all
claims in this matter.” Aplt. App. at 225 n.1. Then, he headed the relevant
subsection of his brief, in bold: “The Utah [Anti-SLAPP Law] Applies.” Id. at
239. In support of this argument he cited to Erie Railroad Co. v. Tompkins for
the proposition that “federal courts sitting in diversity apply the forum state’s
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substantive law.” Id. at 240 (citing 304 U.S. 64 (1938)). He went on to argue
that application of the Utah law “does not automatically dismiss [his] claims.
The court must still conduct a claim-by-claim analysis under the Rule 12(b)(6)
standard.” Id.
So, when Lichfield now argues on appeal that “under binding Tenth
Circuit precedent, the district court should have denied the anti-SLAPP motion
outright on Erie grounds,” Op. Br. at 52, his audience is unreceptive. Lichfield
made precisely the opposite argument in district court: that Erie should lead
to application of Utah anti-SLAPP law and that his claims survived the motion.
Lichfield could have argued to the district court that state anti-SLAPP laws
are categorically inapplicable in federal court, and – in the alternative – that
Utah law would be the appropriate choice of law if application of such laws did
comport with Erie. Cf. Peterson, 707 F.3d at 1208. But Lichfield made no such
argument. Thus, on appeal, he “cannot be heard to complain of any [such]
alleged error.” Id.
The same principle applies to Lichfield’s argument that the district court
erred by treating the anti-SLAPP standard as equivalent to Rule 12(b)(6). He
asked the district court to follow that procedure. Now, unhappy with the result,
he complains that the district court accepted his argument. He has invited
these errors, and so he must live with them. We treat Lichfield’s anti-SLAPP
arguments as waived.
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D
Lichfield additionally argues that the district court erred by dismissing
his suit without granting him leave to amend the complaint. But he also
implicitly concedes that he did not move for leave to amend in the manner
contemplated by our caselaw. See Reply Br. at 24–25. And he is right to
concede, because his opposition to dismissal in the district court contained only
one line requesting leave to amend, and only if Kubler’s motion was granted.
This court has said that a “single sentence, lacking a statement for the grounds
for amendment and dangling at the end of [a] memorandum [does] not rise to
the level of a motion for leave to amend.” Calderon v. Kansas Dep’t of Soc. &
Rehab. Servs., 181 F.3d 1180, 1187 (10th Cir. 1999). We think it makes no
difference for purposes of this rule that Lichfield’s single sentence appeared on
the first, rather than last, page of his opposition briefing. Because he did not
move for leave to amend in the manner required, the district court “did not
abuse its discretion in failing to address [his] request.” Id.
E
Finally, we address an issue that only became operative on appeal. In
his Opening Brief, Lichfield included citation to a legal authority that does not
exist, see Op. Br. at 39, and characterized two cases in manners wholly
unsupported by the text of the opinions, see Op. Br. at 43, 45. Kubler pointed
out these errors in response, see Resp. Br. at 48–49, and although Lichfield
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conceded in reply that his Opening Brief “contained several citation errors”
and contended that the errors “h[ad] been corrected,” he did not file a corrected
brief, see Reply Br. at 6. When questioned at oral argument, counsel offered to
file a notice directly correcting the statements at issue. And, indeed, the
authoring attorney filed the next day a Notice of Errata, identifying the specific
errors in the opening brief and providing actual, existing authority that could
support the arguments made.
The rules of this court provide that when an attorney presents a brief to
the court, they certify, inter alia, that they have undertaken a reasonable
inquiry to ensure that “the issues presented are warranted by existing law or
by a nonfrivolous argument for extending, modifying, or reversing existing
law.” 10th Cir. R. 46.5(B)(2). It should go without saying that a bare-minimum
reasonable inquiry will ensure legal authorities cited in papers submitted to
the court actually exist, and the quotations or propositions attributed to them
also exist. The Opening Brief in this case therefore failed to fully comply with
Rule 46.5.
The filing of this non-compliant brief is conduct sanctionable at our
discretion. 10th Cir. R. 46.5(C). Our rules empower us to issue sua sponte
sanctions, which may include: dismissal of the appeal, an order of monetary
payments, initiation of disciplinary proceedings, and an order to pay the
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opposing party’s reasonable expenses that resulted from the paper in question.
Id.
This court has recently issued sanctions for the use of generative
artificial intelligence that resulted in the filing of a brief with citations to seven
cases that do not exist and two cases that do exist but do not contain the
quotations that the briefing alleged. Amarsingh v. Frontier Airlines, Inc., No.
24-1391, 2026 WL 352016, at *5 (10th Cir. Feb. 9, 2026) (unpublished). 7 There,
the filer – who is a barred attorney but was litigating the case pro se –
addressed the issue with “candor,” and we stated that we “appreciate that she
is willing to try to do better” and “may have taken steps in that direction.” Id.
at *6. But this was ultimately not sufficient to wholly mitigate her frivolous
argument. Id. at *7. We thus ordered the attorney to pay $1,000 to offset
opposing counsel’s fees and costs and directed the Clerk’s Office to refer the
matter to the relevant disciplinary body. Id. at *7–8.
Here, the errors are not as egregious. Although we assume the use of
generative artificial intelligence led to the misrepresentations of legal
authority, the brief here had significantly fewer errors than in Amarsingh. But,
on the other hand, generative artificial intelligence is no longer a novel tool.
Attorneys who choose to use it must be willing to also apply “actual intelligence
7 We cite unpublished decisions for their persuasive value only and do
not treat them as binding precedent. 10th Cir. R. 32.1(A).
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in its execution.” Id. at *6 (quotation omitted). We are further concerned that
the Reply Brief did not appropriately remedy the misstatements of law. After
briefly acknowledging “several citation errors” and contending that they “have
been corrected,” counsel went on to attack the opposing party. Reply Br. at 6.
He contended that “[t]he more significant issue” was “mischaracterizations of
controlling authority” in the Response Brief. Id. But those purported
mischaracterizations were grounded in the words of cases that indeed exist. It
is the court that decides which issues are “more significant.” And the errors in
the Opening Brief are more significant in this case.
We appreciate that counsel filed a Notice of Errata the day after oral
argument. But it should not have taken questioning at argument to elicit such
a response. Submission of a brief containing fabricated or hallucinated
citations is a divergence from the standards expected of attorneys appearing
before this court. Any such error should be corrected explicitly and without
prompting.
The missteps in this case do not merit sanctions. However, counsel
should take note that although generative artificial intelligence may attract
with the promise of less laborious brief writing, its use may result in
hallucinated falsities. Counsel is responsible for ensuring briefs and
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representations made to the court are warranted by the law and supported by
the record, no matter the technology used to create them.
AFFIRMED.
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