Appeal
from Montgomery Circuit Court (CV-17-901624)
MENDHEIM, Justice.
Ella
Bell, a member of the Alabama State Board of Education
("ASBE"), appeals from the Montgomery Circuit
Court's dismissal of her complaint asserting claims of
defamation, invasion of privacy, the tort of outrage,
negligence and wantonness, and conspiracy against Cameron
Smith, Advance Local Media, LLC ("ALM"), and the R
Street Institute ("R Street"). We affirm.
I.
Facts
On June
21, 2017, Bell attended a special-called meeting of the ASBE
concerning elementary- and secondary-education matters. Among
other matters, the ASBE decided during the meeting not to
renew the Alabama State Department of Education's
contract with ACT Spire Solutions, which provided ACT Spire
Assessments for the purpose of tracking academic progress of
Alabama's public-school students in kindergarten through
12th grade. In the course of the discussion between ASBE
members about that contract, Bell made some comments
regarding special-education students and their effect on the
aggregate test scores of public-school students throughout
the state.
On
August 24, 2017, AL.com published an article written by
Cameron Smith in which he addressed some of Bell's
comments in the June 21, 2017, ASBE meeting. The headline of
the article stated: "Alabama School Board Member
Considers Institutionalization for Special Ed Students."
Because the article is central to Bell's claims and to
the defendants' motion to dismiss, we quote the article
in its entirety.
"Alabama State Board of Education (SBOE) member Ella
Bell wants to know why we can't force special needs
children into an institution in an effort to help improve
test scores in Alabama's public schools.
"That might be a reasonable question ... from someone
who hasn't served on the SBOE for more than a decade and
a half.
"Under federal law, students with disabilities should
have the opportunity to be educated in the same environment
as their peers to the greatest extent appropriate. It's a
practice commonly referred to as 'least restrictive
environment' (LRE).
"'Is it against the law for us to establish perhaps
an academy on special education or something on that
order,' asked Bell, 'so that our scores that already
are not that good would not be further cut down by
special-ed's test scores involved?'
"When Bell's colleagues mentioned LRE, she
didn't seem to understand. 'It doesn't matter
about that. You can make it the least restrictive
environment,' she said, 'I'm trying to see if you
can move them out.'
"When a SBOE member doesn't seem to have a real
grasp for such an important aspect of public education, we
have a problem. I looked up the Alabama State Department of
Education's comprehensive FAQ on the issue in about two
seconds.
"If Bell had bothered to be even a little bit curious,
she would have discovered the answers including how
individualized education plans (IEP) for students approach
assessments. She clearly didn't bother to look for
answers before attending the meeting.
"State Superintendent Michael Sentance[1] noted that even
students with challenges similar to theoretical physicist
Stephen Hawking would be considered 'special needs.'
Bell responded, 'I'm just saying those who have
special needs are truly not folks like [Hawking].'
"She even said, 'It's almost not fair for LAMP
(Loveless Academic Magnet Program in Montgomery) and them not
to have special-ed folk to bring them down.' "Bell
doesn't seem to have a clue about Alabama's public
education system for special needs students, but she is
pretty concerned that those students 'bring down' the
rest.
"Alabama has a process for building out IEPs consistent
with LRE requirements. The underlying idea is that our
students are better off in the classroom together. The idea
that a SBOE member would even seriously ask the question
about returning to a practice of institutionalization
demonstrates a tragic lack of knowledge and thoughtfulness.
"The way we balance the needs of students isn't
easy, but it's a testament about the kind of state we
want to be. We've decided to include people who face
challenges that many of us might not. That's the right
answer. We have a tragic history of exclusion in Alabama that
we can't allow to make a comeback.
"Either we don't have enough information about our
SBOE members to hold them accountable, or we simply don't
care about the people shaping our state's education
environment. Bell's jarring perspectives are right in
front of us on video. We just need to decide whether
Alabama's future matters enough for us to do anything
about it."
At the
conclusion of the article, AL.com included the following
tagline: "Cameron Smith is a regular columnist for
AL.com and vice president for the R Street Institute, a think
tank in Washington, D.C." Immediately after the tagline,
AL.com included the following statement: "Ella
Bell's contact information may be found on the [ASBE]
website" and contained an embedded link to the Web site
of the ASBE. Following that statement, AL.com embedded a
video of the discussion by ASBE members, which included
Bell's comments that Smith addressed in the article. The
"desktop" version of the article had a sidebar on
the right side of the page that listed pictures and names of
other AL.com columnists: John Archibald, Kyle Whitmire, and
Roy S. Johnson. Bell asserts that the version of the article
accessible on smart phones did not contain this sidebar.
According
to Smith and ALM, the version of the article originally
posted on AL.com contained a caption above the headline that
stated: "Alabama Opinion." Bell asserts that the
caption was not posted with the original version of the
article and that it was added at a later date.
R
Street republished the article on its Web site on the same
date as the ...