Defamation Claim Against University-Owned Public Radio Station Dismissed on State Sovereign Immunity Grounds

From Eby v. Bd. of Curators, decided today by the Missouri Court of Appeals (Chief Judge John P. Torbitzky, joined by Judges Angela Turner Quigless and Thomas C. Clark II); the opinion doesn’t preclude a defamation lawsuit against the actual authors of the articles, though presumably they don’t have much money to compensate the plaintiff even if he prevails:

St. Louis Public Radio (“KWMU”) is owned and operated by the University. KWMU hired Eby in 2009. He eventually became KWMU’s general manager. In September 2020, KWMU removed Eby as general manager after he was accused of racism.

In the wake of his termination, Eby filed a defamation action alleging the University repeated and/or republished defamatory statements. Eby alleged an anonymous group of KWMU’s staffers published an article on Medium.com accusing him of upholding “white supremacy at the station by remaining complacent with the status quo.” KWMU published two online articles that quoted and hyperlinked the Medium.com article’s accusations. Eby also alleged KWMU falsely reported that he mismanaged KWMU’s finances.

Finally, Eby alleged that sovereign immunity did not apply to this suit because KWMU performed a propriety function for the University …. The University filed a motion to dismiss or for summary judgment asserting that Eby’s claims were barred by sovereign immunity….

“Sovereign immunity is a common law judicial doctrine barring suit against a government or public entity.” Unless sovereign immunity is waived, abrogated, or consented to, sovereign immunity applies to the state and its entities.

Eby’s assertion that the circuit court must first determine whether the state entity’s actions are governmental or proprietary in all cases is incorrect. “The traditional rule … permits the application of the governmental-proprietary distinction (and the preclusion of immunity in the latter circumstance) only as to municipalities.” A municipality has immunity for its governmental functions but not for proprietary functions. “Proprietary functions ‘are those performed by the municipality for profit or for the special benefit of the municipality.'” “Full common law sovereign immunity belongs only to state entities.”

Eby admitted the University is a state entity, existing pursuant to article IX, section 9(a) and (b) of the Missouri Constitution, and section 172.200. The University is an acknowledged “public entity with the status of a governmental body.” As a result, the circuit court correctly declined to apply the governmental-proprietary analysis to the University.

Because the University is a state entity, it is entitled to sovereign immunity. There is no need to invoke the governmental-proprietary function analysis….

It appears that under Missouri law, sovereign immunity may be waived “when a public entity maintains liability insurance without a sovereign immunity exception,” but the trial court concluded that the university’s insurance policies did have such an exception, and the appellate court upheld that decision.