An Oklahoma Court of Civil Appeals panel affirmed a libel verdict Wednesday against The Oklahoman for the publication’s false identification of former football coach Scott Sapulpa as the broadcast announcer who uttered a racial slur in 2021 when a high school basketball team kneeled during the national anthem.
However, the judges’ majority opinion said Sapulpa must agree to drop a Muskogee County jury’s award of punitive damages from $20 million to $2.5 million or send his case back to district court for reconsideration of how much Gannett Co. — The Oklahoman’s parent company — should be made to pay to dissuade other outlets from such “reckless” and “outrageous” journalistic malpractice in the future.
“The decision by Gannett to identify Sapulpa as the ‘announcer’ of the racist comments was made in a hasty and impulsive fashion, thereby showing, clearly and convincingly, that Gannett exhibited reckless disregard as to whether it was false or not,” Judge Thomas E. Prince wrote in the 79-page ruling. “Based upon our review of the appellate record, we find that Sapulpa presented sufficient evidence, if believed, (that) would cause a reasonable person in the community to find Gannett’s conduct was ‘reckless,’ ‘extreme’ and ‘outrageous.'”
Joined by Judge Brian Goree, Prince affirmed the jury’s $5 million award for compensatory damages to Sapulpa’s reputation, but the court cut the total trial costs awarded to Sapulpa’s legal team from $257,300 to $42,755.42 in a companion ruling.
Regarding the verdict and damages, Judge Barbara Swinton concurred with Prince and Goree that The Oklahoman committed libel and that the $5 million figure for actual damages was appropriate. But she dissented from the majority’s recommended remittitur reducing punitive damages from $20 million to $2.5 million, stating that Sapulpa’s legal team had adequately proven “intentional” harm was inflicted upon Sapulpa with “actual malice” and suggesting a $10 million punitive award instead.
“For example, the intentional conduct evidence showed that the reporter had multiple emails and voicemails noting the speaker was not Sapulpa, but the reporter chose to ignore those messages,” Swinton wrote. “Nevertheless, the majority concludes that the record does not show that Gannett acted intentionally and with malice for purposes of Category II punitive damages. The jury awarded $20 million in punitive damages. The majority disproportionately reduces that award by nearly 90 percent.”
Scott Sapulpa received hate messages, suicide suggestions
Wednesday’s Court of Civil Appeals ruling presents a bevy of options when it comes to next steps in the case, which offers insight into the American public’s tolerance for injurious journalistic mistakes in a digital age where a lie can travel halfway around the world while the truth is still working through two-factor authentication.
The case also carries major financial implications for Gannett Co., which owns more than 200 local publications as part of the USA Today network. Purchased by New Media Investment Group in 2019, Gannett Co. is the largest owner of newspapers in America.
It’s unclear whether Gannett will appeal the Court of Civil Appeals’ decision to the Oklahoma Supreme Court. Attorney Bob Nelon, who has represented Gannett throughout the case, did not respond to a message seeking comment about Wednesday’s decision prior to the publication of this article.
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Rusty Smith, one of several attorneys who representing Sapulpa in the case, said his client’s legal team was reviewing the new ruling Thursday afternoon. While the appellate court gave Sapulpa 30 days to decide whether to accept the $2.5 million figure for punitive damages or head back to trial on that topic in Muskogee County, it’s also possible that Sapulpa could ask the Supreme Court to review the matter.
Meanwhile, Cameron Jourdan, the former sports reporter for The Oklahoman whose error spurred the lawsuit, is now an assistant editor for GolfWeek, a Gannett brand. According to social media, Jourdan was playing in the Oklahoma Golf Association’s “Four-Ball” tournament Wednesday when the appellate decision was published. Jourdan and a partner shot a 71 for par.
On March 12, 2021, Jourdan was covering the state high school girls basketball tournament in the city of Sapulpa when word spread on social media that a broadcast announcer had referred to members of the Norman High School team with a racial slur when they kneeled during the playing of the national anthem. Athletes kneeling during the song had become a matter of political debate following the 2020 murder of George Floyd by a Minneapolis police officer.
While former youth pastor and broadcast company owner Matt Rowan ultimately admitted to being the announcer who uttered the slur ahead of the March 11 game, Jourdan told his editors the next day that he had “two” sources identifying Sapulpa as the offender. The Oklahoman’s article had originally been published without identification of the speaker around 11 a.m., but it was updated at 12:37 p.m. to name Sapulpa.
Within a matter of minutes, some readers commented that they believed someone else had made the remarks, but Jourdan and The Oklahoman’s editors did not remove his name until 3:05 p.m. At 5:35 p.m., the article was updated to identify Rowan, who released a statement claiming that blood sugar issues had prompted his racist outburst.
Eight minutes after The Oklahoman updated its online story falsely naming Sapulpa, a barrage of hate-filled text messages began to reach Sapulpa’s phone. More than 70 text messages and social media messages were introduced as evidence during the January 2024 libel trial. With Sapulpa on the stand, some messages were read aloud for the jury, including:
- “Racist fucker”
- “Racist trash. Pls kill yourself.”
- “You a fucking loser.”
- “You racist piece of shit fuck you I hope your kids get als.”
- “Your parents raised a bitch.”
One text referenced Sapulpa’s job at Hulbert Public Schools: “You need to be fired and never accepted into any job again.”
Sapulpa replied: “It wasn’t me. I wasn’t the only one there.”
“Well, the Oklahoman seems to think it was you,” the texter responded. “Good enough for me you dumb ass country bumpkin.”
Court notes ‘a hubristic attitude’ about sourcing the story
In Wednesday’s majority appellate opinion, Prince outlined how The Oklahoman’s actions fell short of journalistic best practices. Prince quoted the expert testimony of Syracuse University journalism professor Joe Kaplan, who excoriated Jourdan and his editors at The Oklahoman during the trial.
“In my 44 years as a journalist and a journalist educator, I have not seen a case as egregious in terms of journalistic malpractice, in terms of recklessness, in terms of just, basically, ignoring all ethical standards of being a journalist, from not taking notes to granting anonymity to people who didn’t ask for it to intentionally lying to the readers and to the people who are trying to set them straight,” Kaplan testified.
Prince outlined specific facts that he said supported the finding of libel and that the publication had acted with “actual malice,” a heightened standard of abuse required to libel a “public figure.” In its appeal, Gannett argued that simply being a high school teacher — with access to a microphone — constituted public figure status, a position the appellate court roundly rejected.
“While Gannett alleges in its reply brief that ‘a report that Sapulpa made a racial slur about a high school girls’ basketball team surely touches on Sapulpa’s fitness to serve as a public-school teacher and coach’, we find this interpretation would transform all government employees into ‘public officials’ and would extend to the employee’s conduct far outside the course and scope of their employment,” Prince wrote. “Gannett’s broad interpretation directly contravenes the U.S. Supreme Court’s holding that the ‘public official’ status encompasses only those serving in ‘position[s] in government ha[ving] such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees’.”
Nonetheless, Prince said Sapulpa’s legal team had provided enough evidence to establish The Oklahoman acted with “actual malice” during the trial. On Pages 41 and 42 of the ruling, Prince outlined four elements of “clear and convincing” evidence of The Oklahoman’s “reckless” actions that constituted “actual malice” toward Sapulpa:
• No reporter or editor at The Oklahoman took time to watch the video of the incident that was available on social media prior to 12:37, p.m., on March 12, 2021, which would have easily revealed that Sapulpa was not the person using racist language.
• Jourdan did not take any notes of his phone conversations with either (Tahlequah Public Schools Superintendent) Matt Cloud or (OSSAA executive director) David Jackson.
• Ryan Sharp (the news director for The Oklahoman) made the decision to publish Sapulpa’s name at 12:37, p.m., within just a matter of minutes after his phone call with Jourdan who, from his perspective, had spoken with Matt Cloud a mere eight minutes earlier — at 12:29, p.m. In that context, both Jourdan and Sharp testified about their phone call and both stated that Jourdan told Sharp that he (Jourdan) had two sources. That is the only information in the record to support Gannett’s claim that the paper had two sources. Sharp, however, was unable to recall any other details of the call, including whether he interrogated Jourdan in any respect to determine what those two sources allegedly told Jourdan. Ironically, Sharp had, just minutes before his phone call with Jourdan, twice instructed his staff that the paper needed two sources before it could release the name of a person (with those directives having occurred at 12:18, p.m. & 12:28, p.m.). In light of the fast turnaround connected with the decision to publish the 12:37, p.m., update and the scant evidence that Sharp truly was advised that there were, in fact two sources, it is reasonable to conclude either that: the jury did not believe Sharp’s testimony and concluded that Gannett did not have two sources to support the 12:37, p.m., update; or, alternatively, that Sharp’s admonition about needing two sources was mere “window dressing” and had been disingenuously stated.
• Senior editor, Don MeCoy, sent Jourdan a text at 8:13, p.m., on March 12, 2021, in which he wrote, in part, “you did nothing wrong today. You worked your tail off to get the news, and then your editors – particularly me – did you a disservice. We got in too much of a hurry in a competitive situation. But it was clear that we were going to eventually know exactly who said those vile things. ‘What’ was the big news; not so much the ‘who’…”.
On Page 47, Prince outlined other examples of how The Oklahoman had acted in an “extreme” manner that harmed Sapulpa. Prince referenced the testimony of Jourdan, who had told the jury a text message he sent claiming to have “three” sources naming Sapulpa was afflicted with a typo and that it should have said “two.” Jackson, the head of OSSAA identified as Jourdan’s second source, testified he had not told Jourdan that Sapulpa was the speaker.
“When Jourdan was asked at trial if he believed the story was properly sourced, he answered ‘I do,'” Prince wrote. “This position by Jourdan arguably revealed a hubristic attitude and that he did not appreciate the terrible reputational injury that he could possibly cause, his reliance on the brief telephonic interview with Matt Cloud, the rapid pace at which he was working, and that he did not take notes of any conversations that day.”
Ultimately, however, Prince and Goree found that Muskogee County District Court Judge Jeffrey Payton had “erred in lifting the cap on punitive damages” and that the jury’s award of $20 million in punitive damages “was grossly excessive.” The court found that use of the phrase “and/or” on the jury form regarding a finding of intentionality of “actual malice” was “reversible error” that “represented a substantial violation of Gannett’s statutory rights.”
“We specifically find that the evidence did not show that Gannett acted ‘intentionally and with malice’ for purposes of Category II & III punitive damages,” Prince wrote.
Swinton disagreed in her dissent.
“The clear and convincing evidence supports a finding that Gannett acted intentionally and with malice,” Swinton wrote. “Accordingly, the record supports an award of Category II punitive damages of twice the actual damages awarded. Therefore, based on the record here, I would order a remittitur of all but $10 million of the punitive damages award, representing twice the actual damages award.”
