## Facts

- William Janklow, then Governor of South Dakota and formerly Attorney General, sued Newsweek, Inc. for defamation arising from a February 21, 1983 *Newsweek* article about AIM activist Dennis Banks.
- The article recounted Banks’s South Dakota felony convictions, his flight from the state, and Janklow’s efforts (as Attorney General and later Governor) to prosecute Banks and seek his extradition.
- The article also described Banks’s 1974 initiation of tribal-court charges against Janklow tied to a rape accusation later acknowledged to be false.
- Janklow challenged a paragraph that, through its sequencing and phrasing, linked Banks’s 1974 tribal action to Janklow’s later prosecution of Banks.
- Janklow alleged the article implied (1) he began prosecuting Banks only after Banks tried to bring him “to justice” for the rape allegation, and (2) his actions were motivated by revenge.
- Newsweek maintained it accurately reported the underlying events and that any suggestion of revenge reflected interpretive commentary rather than an actionable factual assertion.

## Issues

1. Whether the article’s implication that Janklow pursued Banks in retaliation for Banks’s tribal-court action was a provably false statement of fact or protected opinion under the First Amendment.
2. Whether Newsweek accurately reported the rape allegation and avoided implying the allegation was true.

## Decision

- The district court granted summary judgment to Newsweek, concluding the rape-allegation reporting was accurate, the article did not endorse the allegation, and the revenge implication was nonactionable opinion.
- A divided Eighth Circuit panel agreed on accuracy and non-endorsement regarding the rape allegation but treated the revenge implication as factual and potentially actionable.
- Sitting en banc on the fact/opinion question only, the Eighth Circuit held the revenge implication was opinion “absolutely protected by the First Amendment” and affirmed dismissal with prejudice.
- The panel’s determinations on accuracy and non-endorsement of the rape allegation were left undisturbed.

## Legal Principles

- In defamation actions, courts determine whether the challenged language would reasonably be understood as asserting objective, verifiable facts or as expressing interpretation and commentary.
- An inference about a public official’s motive (e.g., revenge or retaliation), drawn from disclosed or essentially undisputed facts, is generally treated as opinion rather than an independently verifiable factual assertion.
- When the speaker discloses the facts forming the basis for a critical inference, readers can evaluate the inference for themselves, strengthening First Amendment protection for the commentary.
- Defamation liability cannot rest on a critical narrative about a public official’s motives absent a materially false factual assertion or an implication that the publisher is asserting undisclosed defamatory facts.

## Conclusion

The en banc Eighth Circuit held that the article’s suggested inference that Janklow prosecuted Banks out of revenge was protected opinion based on disclosed facts, leaving no actionable defamatory statement and requiring dismissal of the defamation claim with prejudice.


Janklow v. Newsweek, Inc., 788 F.2d 1300 (8th Cir. 1986) (en banc)