Lichfield v. Kubler

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. _________________________________  Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 2 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. 2  Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 3 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). 3  Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 4 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. 4  Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 5 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] 5  Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 6 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 6  Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 7 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. 7  Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 8 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. 8  Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 9 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. 9  Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 10 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. 10  Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 11 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 11  Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 12 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 Amendment- protected 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. 12  Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 13 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 13  Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 14 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. 14  Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 15 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. 15  Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 16 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 16  Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 17 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 17  Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 18 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 18  Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 19 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). 19  Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 20 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, Merriam- Webster.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 20  Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 21 “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. 21  Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 22 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 22  Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 23 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 23  Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 24 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, 24  Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 25 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 dif