A civil lawsuit filed against The Durango Herald in response to a vulgar email sent by a former employee has been tossed out of court with attorney fees awarded to the newspaper.
The lawsuit was filed in February 2012 by members of a spiritual band based in Arizona, Gabriel of Urantia/TaliasVan of Tora, which accused former Arts & Entertainment Editor Ted Holteen of sending a threatening email to the group’s booking agent prior to a show it played in July 2011 in Durango. Holteen was critical of the band’s musical talents, mocked its use of spiritual names, and expressed a desire for physical and spiritual harm to befall the band.
According to the lawsuit, the email was so upsetting that the band canceled part of its tour, including shows in Denver, Santa Fe and Phoenix. The band sought more than $1.3 million in compensatory and punitive damages, alleging “intentional infliction of emotional distress.”
Under Colorado law, liability for such claims results “only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”
Federal courts, including the Court of Appeals for the 9th Circuit, said Holteen’s conduct was not “outrageous” as a matter of law.
“Although the email may have been upsetting, insulting and in poor taste, that would not be enough under Colorado law,” the 9th Circuit wrote in its decision upholding a U.S. District Court’s ruling.
After dismissing the case with prejudice, the courts awarded the defendants $113,132.50 in attorney fees – costs covered through an insurance claim, but not enough to cover the newspaper’s $25,000 deductible.
In an interview last week, Holteen expressed regret for writing the email. “It was a stupid thing for me to do; always think before you speak or write,” he said. But he called it a frivolous lawsuit that reflects poorly on the federal judiciary.
“Our legal system is a disaster,” Holteen said. “The fact that this has been being adjudicated for the last five years for one paragraph of text – I just think that’s despicable.”
Holteen sent the email to the band’s booking agent on July 8, 2011, using his work email account. In the 167-word email, he wrote: “You’ll be lucky to leave Durango without being in handcuffs or slaughtered by an angry mob – we’re not idiots around here like the suckers you rope in down in Arizona. If there was a hell, I’d wish you to burn there for eternity, but since no such place exists, I can only hope that you suffer horribly painful deaths.”
Holteen said he was feeling ill and was in a “terrible mood” the day he sent the email. He also had recently watched a Dateline NBC episode about the group, Global Community Communications Alliance, which made him feel “they were purporting to be something they weren’t.”
The band notified the Durango Police Department of the email, which referred the matter to Fort Lewis College Police because it has jurisdiction over the Community Concert Hall, where the band planned to perform that evening. An officer contacted Holteen, and Holteen expressed regret for sending the email and asked the police officer to communicate his apology to the band, said Steven Zansberg, partner with the law firm Ballard Spahr in Denver, which represents the Colorado Press Association and The Durango Herald.
No criminal charges were filed, and the band played its show that evening at the college.
“You’d think that would have been the end of it,” Zansberg said.
Instead, the band canceled its remaining shows in other cities and filed a lawsuit in federal court in Tucson, Arizona.
The Herald fought the lawsuit based largely on First Amendment grounds, which protects offensive and insulting speech.
“There’s a very high threshold before communications of this sort, as distasteful as they may be, give rise to a legal claim under Colorado law,” Zansberg said.
He added: “The case shows that Colorado law places a fairly high burden on folks who seek to recover in a court of law upon a claim of ‘emotional distress through outrageous conduct’ from nothing more than a highly offense comment in a private email.”
Richard Ballantine, who was publisher of the Herald at the time and is chairman of the board for Ballantine Communications Inc., which owns the newspaper, said the court’s ruling confirms state law, which permits this kind of “colorful and sharply toned” language that is not excessive.
Holteen’s email is not an example of the professionalism practiced at the Herald, but it’s also not a violation of law, Ballantine said.
Holteen left the Herald in 2014; his departure had nothing to do with the email or lawsuit, according to him and the company.
Holteen thanked the Herald for recognizing the lawsuit as frivolous and fighting it.
“In the end, we prevailed because we were just, and justice always prevails,” he said.