Nicole Kemp, Appellant-Defendant v. LLC (2025)

MEMORANDUM DECISION

Case Summary

[1] In a private Facebook group called Indiana Dynamic Women of Johnson County (the Group), Nicole Kemp made an anonymous post about Amanda Johnson, owner of Bay Horse Inn, LLC (BHI), an event center in Greenwood that hosts weddings, fundraisers, and other events. Kemp's post urged members of the Group to boycott BHI, giving several reasons why she believed Johnson did not “stand with” the liberal values of the Group. The post generated many comments and, though deleted by Kemp within about forty-eight hours, it was screenshotted by others and shared in other Facebook groups in the community.

[2] Johnson and BHI (collectively, Johnson) sued Kemp in small claims court for defamation. The trial court determined that, while most of the post was not defamatory, Kemp's statement that Johnson was anti-LGBTQ constituted defamation per se. The court ordered Kemp to pay $5,001 in damages. On appeal, Kemp contends that her post did not constitute defamation per se and that Johnson failed to establish by clear and convincing evidence that the anti-LGBTQ statement was made with actual malice.

[3] We reverse.

Facts & Procedural History

[4] The Group, originally called Nasty Women, was developed as “a liberal women's organization․meant to support liberal women's causes[.]” Transcript at 49. Such causes included LGBTQ rights. The Group is private, meaning only members can see who is in the group and what is posted. As of November 2023, the Group had about 800 members and several administrators, including Charrie Stambaugh and Lucy Bartley.

[5] On the morning of November 5, 2023, Kemp, a member of the Group, submitted the following to be posted anonymously:

There is a business owner in the area who host[s] events for lots of different business and causes in the area. This owner does not stand with our values. Today I'm naming [BHI]. The owner Amanda Johnson is a far right detriment to our goal. She is given community money and with that money comes power. She has donated to Trump and kept a giant sign in her yard at the front of her business supporting him. She was the top donor of signs and stickers to the unmask our kids campaign. She lined Stones Crossing with these signs. She placed them at the schools, and confused our children as they got on and off the bus. She supports school board candidates like Joe Hubbard and others who stand in the way of public education and have Purple Parent and Moms for Liberty values. She supported Joe Hubbard for mayor. She uses the fact she served on an education foundation as a tool to pretend she knows what is best for the CG community. She uses her financial gain to hurt the community and is anti LGBTQ. I beg of you, if you are asked to attend an event there no matter the cause let them know you will not be coming and why. CG district hosts lots of events there and the money is used to go against what should be their very values, and the values this group fights so hard to protect.

Exhibits at 7 (emphasis added).

[6] Stambaugh initially approved and published Kemp's anonymous post but took it down minutes later after having a chance to read it in full. Stambaugh, a small business owner in the wedding industry herself, believed the post “didn't seem like a positive thing to put on a women's group to help support women of change.” Transcript at 18. Shortly thereafter, however, Bartley approved and republished Kemp's post at 11:11 that morning. The post garnered many Facebook comments by members and spawned other related posts, including screenshots posted in other Facebook groups such as Center Grove Chatter.

[7] Johnson, who was not a member of the Group, learned of the social media buzz from others, and she began hearing that people were planning to boycott BHI. On November 7, 2023, outside of a polling location, Johnson approached Kemp and a woman named Blythe, who was an administrator of the Group. Johnson wanted to know the identity of the anonymous poster, expressed displeasure that the post had been approved, and noted that she had spoken with a lawyer. Johnson explained that nobody could claim that she did not support the LGBTQ community, explaining that she has a gay uncle and hosts gay weddings at BHI. Kemp, who did not identify herself as the author of the post, suggested that Johnson could change the narrative by donating to Greenwood Indiana Pride, for which Kemp was the fundraising director. Johnson “scoffed” at that suggestion. Id. at 67.

[8] The same day as the encounter with Johnson, Kemp deleted her post from the Group. This did not end the controversy though given the other social media posts relating to the matter. Further, on November 9, Johnson made a post on her own personal and business Facebook pages in which she indicated that “some very negative and derogatory lies” had been spread about her and her business. Exhibits at 13. She emphasized that all are welcome at BHI and stated, “Our goal has been and continues to be to serve the public and be a friend to all in our community.” Id.

[9] Around this same time, someone made a Facebook comment in the Group asking, “Does all this welcoming include LGBTQ+ people?” Id. at 17. Kemp responded by stating that BHI does, in fact, allow such weddings at the venue. But Kemp explained that BHI had a history of refusing to work with Greenwood Indiana Pride and that Johnson was a Trump supporter. Kemp continued:

[W]hen you vote for people who are anti-LGBTQ, you cannot say that you are LGBTQ friendly[1]․. [The original poster] was just making us aware who are in this group specifically to fight against extreme beliefs that spending money there goes places that we don't want it to go. But also, like Jane said[,] it goes to places that we do want it to go. I say we drop it and move on․.

Id. at 17-18.

[10] In February 2024, Johnson, individually and on behalf of BHI, filed a small claims action against Kemp for defamation, and the matter was heard on May 22, 2024. During her brief testimony, Johnson alleged that there was “incorrect information” in Kemp's post, but she did not specifically identify what statements were false. Transcript at 39. Similarly, Johnson submitted into evidence her own Facebook post from November 9, in which Johnson generally referred to “very negative and derogatory lies” that had been circulated about her and BHI. Exhibits at 13. Johnson also called two witnesses who were supportive of her and disagreed with Kemp's post.

[11] Kemp then testified on her own behalf about her bases for the statements made in her post. She explained that she knew Johnson had been a Trump supporter, having seen signs in front of BHI during the 2020 presidential campaign and a picture on Facebook of Johnson in a Trump hat and “Let's go Brandon” t-shirt. Transcript at 52; Exhibits at 14. Kemp also testified that during the pandemic she saw Facebook posts where Johnson “helped push forward the unmask our kids [campaign]” and was told by school employees that Johnson posted signs for this campaign along the roads near the school. Further, noting that Johnson has friends who “constantly posted about trans people,” Kemp opined, “I just think that you don't surround yourself with people you don't agree with that closely.” Transcript at 50. And Kemp noted her own belief that the Trump/Pence platform was generally not friendly to the LGBTQ community.

[12] On cross examination, Kemp acknowledged that she and Johnson have differing opinions on certain matters and that Johnson is entitled to her opinions. But Kemp explained that it was not uncommon for people to post in the Group about “businesses that we don't want to support for these reasons.” Transcript at 59. The trial court eventually interjected that its focus was on the anti-LGBTQ statement:

The rest of this stuff, your client never denied it, you know. I don't care if she's a Trump supporter[. W]hat some of this stuff is to me is just protected. So, to me what I'm focused on is this anti LGBTQ stuff․. To me, the issue is within the forty-eight hours that this post was up, was there damages and those kind of things. So that's what I want to stay on right here. That's, I don't even know what a purple parent, and mom for liberty values are. I have no clue what those are. I don't know if that's disparaging or not. I don't know. So let's move on.

Id. at 63. Thereafter, Johnson's counsel did not ask Kemp about the basis of her anti-LGBTQ statement. On re-direct examination, however, Kemp testified that Greenwood Indiana Pride had unsuccessfully tried to enlist the involvement of BHI prior to November 2023, and that she had inferred from this that BHI was not supportive of LGBTQ policies.

[13] At the conclusion of the hearing, the trial court took the matter under advisement. It then issued a written decision a week later, finding that Kemp had defamed Johnson and BHI and ordering Kemp to pay $5,001 in damages. [14] Kemp now appeals. Additional information will be provided below as needed.

Discussion & Decision

[15] Initially, we note that Johnson did not file an appellee's brief. Accordingly, we will not develop arguments for her, and we apply a less stringent standard of review. State v. Miracle, 75 N.E.3d 1106, 1108 (Ind. Ct. App. 2017). “We may reverse if the appellant is able to establish prima facie error, which is error at first sight, on first appearance, or on the face of it.” Id. (quoting Wharton v. State, 42 N.E.3d 539, 541 (Ind. Ct. App. 2015)). Her failure to provide argument, however, does not relieve us of our obligation to correctly apply the law to the facts in the record to determine whether reversal is required. Id.

[16] Kemp challenges the trial court's order on two primary grounds claiming: (1) her statement about Johnson being anti-LGBTQ did not constitute defamation per se and (2) Johnson did not establish by clear and convincing evidence that the statement was made with actual malice. As will be discussed below, Kemp has established prima facie error in both respects.

1. Defamation Per Se

[17] Defamation per se arises when the language of a statement, without reference to extrinsic evidence, constitutes an imputation of (1) criminal conduct, (2) a loathsome disease, (3) misconduct in a person's trade, profession, office, or occupation, or (4) sexual misconduct. Dugan v. Mittal Steel USA Inc., 929 N.E.2d 184, 186 (Ind. 2010). That is, the words used must have defamatory imputation on their face, and the circumstances in which a statement is made have no bearing on whether the statement constitutes defamation per se. Wartell v. Lee, 47 N.E.3d 381, 385 (Ind. Ct. App. 2015), trans. denied. Where defamation per se is established, damages are presumed.² Dugan, 929 N.E.2d at 186.

[18] Here, the trial court determined that Kemps's statement that Johnson is anti-LGBTQ constituted defamation per se. The court explained:

[A]ttributing an anti-LQBTQ bias to Johnson's trade, profession, or occupation where the LGBTQ community is and has been a significant source of revenue for that trade, profession or business simply because of a perceived political support of a single candidate by the owner is defamation per se under these facts. Kemp failed to produce any evidence demonstrating anti-LGBTQ bias by Ms. Johnson or [BHI]. Kemp did state that Johnson scoffed when Kemp asked her to contribute to a Pride event, but Kemp's solicitation was after Kemp had already posted the anti-LGBTQ message․. The only evidence before the court is that [BHI] has hosted numerous same-sex marriages and has served clients regardless of their sexual orientation.

Appendix at 14.

[19] The trial court improperly considered extrinsic evidence when determining that the statement constituted defamation per se. On its face, Kemp's statement that Johnson is anti-LGBTQ is a generalized statement that does not allege any actual misconduct by Johnson (or BHI) in her business ³ and thus cannot constitute defamation per se. See Sheets v. Birky, 54 N.E.3d 1064, 1071 (Ind. Ct. App. 2016) (“Recent Indiana decisions clarify that defamation per se as to one's profession involves actual misconduct as opposed to a generalized opinion.”); see also Baker v. Tremco, 917 N.E.2d 650, 658 (Ind. 2009) (holding that supervisor's statement that plaintiff, a former employee with his own business, had “engaged in inappropriate sales practices” was “far too vague” to conclude that the statement was “so obviously and naturally harmful that proof of [its] injurious character c[ould] be dispensed with”); cf. Dugan, 929 N.E.2d at 187 (holding that statements by supervisor to other employees that plaintiff was stealing time, working on a scheme to defraud the company, and stealing air compressors from the company “imput[ed] criminal conduct or occupational misconduct” and thus “clearly qualif[ied] for consideration as defamation per se”). The trial court erred in finding otherwise.

2. Actual Malice

[20] Regardless of whether the claim was for defamation per se or per quod, Kemp consistently argued below that Johnson was required to establish actual malice because Kemp's Facebook post concerned a matter of public or general concern. See Journal-Gazette Co. v. Bandido's, Inc., 712 N.E.2d 446, 449 (Ind. 1999) (holding that “the actual malice standard of proof required in defamation cases involving matters of public or general concern applies not only to public figures, but to private individuals as well”).⁴ Johnson never disputed that actual malice was required, and the trial court so found. Accordingly, we will proceed on that premise.

[21] Our Supreme Court has described actual malice as a “steep constitutional” standard to overcome. Brewington v. State, 7 N.E.3d 946, 953 (Ind. 2014). A plaintiff must establish actual malice by clear and convincing evidence. Bandido's, 712 N.E.2d at 456.

Actual malice exists when the defendant publishes a defamatory statement with knowledge that it was false or with reckless disregard of whether it was false or not. Reckless conduct is not measured by whether a reasonably prudent man would have published or would have investigated before publishing. To demonstrate reckless disregard, there must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication, or proof that the false publication was made with a high degree of awareness of their probable falsity. Hence, a defendant's actual state of mind is a critical factor in the analysis. A defendant's state of mind is a subjective fact and may be shown by indirect or circumstantial evidence.

Id. (cleaned up). In sum, a determination regarding actual malice does not turn on whether a statement was true or false, motivated by ill will, or lacking in objective reasonableness; it is solely a matter of the defendant's subjective sincerity when making the statement. See Brewington, 7 N.E.3d 960.

[22] In determining that Kemp acted with actual malice, the trial court made several observations:

Kemp testified that she attributed an anti LGBTQ bias to Johnson and [BHI] because Johnson supported former President Trump. Kemp submitted a photo of Johnson wearing Trump apparel as well as a “Let's Go Brandon” t-shirt. Kemp did not present any evidence about any investigation or inquiry or any other independent basis for her anti-LGBTQ accusation that she possessed prior to publishing her message.

* * *

Kemp failed to produce any evidence demonstrating anti-LGBTQ bias by Ms. Johnson or [BHI]. Kemp did state that Johnson scoffed when Kemp asked her to contribute to a Pride event, but Kemp's solicitation was after Kemp had already posted the anti-LGBTQ message. One doesn't have to wonder why Johnson wasn't interested in giving Kemp any money at that point. The only evidence before the court is that [BHI] has hosted numerous same-sex marriages and has served clients regardless of their sexual orientation.

Appendix at 13-14 (emphases added).

[23] The trial court's analysis misses the mark. It was Johnson's burden to show actual malice by clear and convincing evidence, not Kemp's burden to disprove it. And it is irrelevant, for purposes of establishing actual malice, whether Kemp could produce evidence demonstrating that Johnson is actually anti-LGBTQ or whether she should have investigated further before making the statement.

[24] At trial, Johnson failed to present any evidence that Kemp “in fact subjectively doubted h[er] accusation – regardless of whether an objectively reasonable person would have.” Brewington, 7 N.E.3d at 962. The only evidence of Kemp's state of mind at the time she made the statement showed that Kemp believed Johnson to be anti-LGBTQ.⁵ Her belief, misguided though it may have been, was based on political candidates that Johnson had supported ⁶ and the fact that Johnson had rebuffed past invitations for BHI to support Greenwood Indiana Pride, an organization with which Kemp was closely involved. Further, upon later learning that BHI had a history of hosting LGBTQ weddings, Kemp promptly deleted her post and publicly acknowledged this fact about BHI in a Facebook comment in the Group.

[25] While Kemp may have been careless in stating that Johnson was anti-LGBTQ, Kemp has made a prima facie showing on appeal that Johnson failed to present clear and convincing evidence of actual malice. Accordingly, we reverse. [26] Judgment reversed.

FOOTNOTES

1.   Kemp added within another lengthy comment in the Group: “Also, I'm gonna state the obvious, taking money from gay people to pay you for your venue does not mean that you support the gay community. It means you're willing to take their money.” Id. at 26.

2.   In contrast, a plaintiff must establish damages in a defamation per quod case, which is where the words used are not defamatory in themselves but become so when understood in the context of extrinsic evidence. Id.

3.   As Kemp notes, she never stated that Johnson or BHI had engaged in any acts of discrimination against the LGBTQ community.

4.   In so holding, the Supreme court stated a belief that “in most cases there is little disparity in the ability of private versus public individuals to obtain access to the channels of effective communication in order to counteract false statements.” Id. at 452. Twenty-five years later, this has become even more true with the proliferation of social media.

5.   The trial court found that Kemp, by posting anonymously, “demonstrated a serious doubt as to the truth of her publication.” Appendix at 14. But Johnson did not inquire during cross examination of Kemp as to why she chose to post anonymously, and we agree with Kemp on appeal that anonymity alone does not establish actual malice.

6.   During her testimony, Johnson did not deny supporting the candidates or causes that Kemp identified in her post.

Altice, Chief Judge.

Judge Vaidik and Senior Judge Crone concur. Vaidik, J. and Crone, Sr.J., concur.