Lichfield v. Kubler

Opinion

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.

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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.

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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]

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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

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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.

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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.

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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.

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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

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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

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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

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.

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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).

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

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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

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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).

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

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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

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“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.

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 difference between being a suspected participant in a

heinous bombing and being a material witness in the investigation” of that

bombing, a defamation action cannot proceed on such a distinction. Bustos v.

A & E Television Networks, 646 F.3d 762, 768 (10th Cir. 2011) (citing Nichols

v. Moore, 477 F.3d 396, 398, 401 (6th Cir. 2007)). So, to the extent that a

“respectable community member” would find the difference between an arrest

and a conviction “significant enough to make the misstatement actionable,” id.,

we doubt that same viewer would reason in the first instance that Lichfield’s

arrest was tantamount to his guilt and subsequent criminal conviction. That

is, we do not see how the reasonable viewer could be ignorant of the difference

between arrest and conviction but knowledgeable enough to credit a dismissal

25 Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 26

for lack of evidence. Even assuming away ad arguendo the inherent tension in

Lichfield’s theory, his argument has a bigger problem.

That problem is context. “Trying to focus on the defamatory words alone

would be like trying to appreciate a pointillist painting by Seurat with a

magnifying glass—the telling pattern would be lost in a maze of dots.” Hogan,

762 F.3d at 1106 (quoting Dobbs at § 526 (2d ed. 2014)). The relevant context

here is that throughout the series Kubler calls for law enforcement and

government officials to investigate and punish executives in the troubled-teen

industry. See, e.g., The Program, Part 3 at 49:30. Indeed, the very thesis of

Kubler’s policy stance in the third episode is that executives like Lichfield have

evaded liability for their mistreatment of children. And just after the

challenged segment, Kubler narrates that Lichfield re-opened the Costa Rican

facility seven months after the raid and his arrest. See The Program, Part 3 at

30:53. Thus, if the series had included the additional facts pleaded in the

Amended Complaint – that charges “were voluntarily dropped by the public

prosecutor,” which is “a nearly unprecedented outcome given the severity of

the underlying allegations,” Aplt. App. at 24 – the gist of the challenged

statement would remain the same. Or, in other words, the inclusion of this

additional information would produce no “different effect,” Schwartz, 215 F.3d

at 1146, than that already conveyed: executives in the troubled-teen industry

tend to avoid legal liability for what the speaker argues to be misconduct.

26 Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 27

Additionally, a series such as The Program will always be subject to an

editing process that “obviously entails professional judgment. In this process

material that is flattering or critical of a particular person may be included or

eliminated.” Machleder v. Diaz, 801 F.2d 46, 54 (2d Cir. 1986). A person who

is the subject of the speech is not entitled to hold the editor’s pen or exercise a

producer’s review merely because he is the subject of a given segment or article.

Just as a state legislature may not require newspapers to publish the

responses of political candidates to unfavorable stories, Miami Herald Pub. Co.

v. Tornillo, 418 U.S. 241, 258 (1974), a private plaintiff is not entitled to the

publication of every fact that might cast him “in a more favorable or balanced

light,” Brokers’ Choice, 861 F.3d at 1108 (quotation omitted). So long as there

is no statement of material falsehood – implied or otherwise – the director,

editor, and producer must be free to exercise their collective editorial

discretion.

Here, the “substance,” “gist,” and “sting” of the challenged statement

“can be justified.” Masson, 501 U.S. at 516–17. In other words, Lichfield has

not shown this speech contained material falsehood. And without material

falsity, there has been no defamation. Brokers’ Choice, 861 F.3d at 1108. The

district court correctly found that the purported omission cannot render the

truth of this segment defamatory. We agree that the second challenged

segment is also not susceptible to defamatory meaning as a matter of law.

27 Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 28

We turn now to the third challenged segment to determine whether it is

susceptible to a defamatory meaning. The scene in question begins at a Utah

karaoke bar, where Kubler drinks from a pint glass and Lichfield performs a

song first recorded by Frank Sinatra. The Program, Part 3 at 47:39. While

Lichfield dances, Kubler narrates:

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. Once Lichfield has returned to his seat, Kubler takes a drink

from a shot glass chased with lime before performing Blondie’s “One Way

or Another” with two friends. Id. at 48:30.

On appeal, Lichfield contends that Kubler’s narrative statement is

defamatory because it makes provably false assertions of facts. This is the

closest call of the three challenged segments. But, ultimately, like the

statements associated with the first two segments, Kubler’s statements are

not defamatory as a matter of law.

The inquiry again centers on whether the “statements were false,

defamatory, and not subject to any privilege.” Hogan, 762 F.3d at 1105

(quoting West, 872 P.2d at 1007–08). When determining whether a

28 Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 29

statement is defamatory, the inquiry consists of “a context-driven

assessment of the alleged defamatory statement.” O’Connor, 165 P.3d at

1222. And our contextual analysis relies on the four factors discussed above:

“(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.” Hogan, 762 F.3d at 1106.

Also relevant is a question of privilege. Article I of the Utah

Constitution protects expression of opinion even where that opinion might

otherwise be defamatory. West, 872 P.2d at 1017. And the Utah Supreme

Court has provided a non-exhaustive four factor test to discern whether a

given statement is either factual – and thus potentially susceptible to

defamatory meaning – or privileged opinion. See id. at 1018. The factors

include:

29 Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 30

1) “[T]he common usage or meaning of the words used;”

2) “whether the statement is capable of being objectively verified as

true or false;”

3) “the full context of the statement – for example, the entire article

or column – in which the defamatory statement is made; and”

4) “the broader setting in which the statement appears.”

Id. (citing Ollman v. Evans, 750 F.2d 970, 979 (D.C. Cir. 1984) (en banc)). 6

The First Amendment does not provide “a wholesale defamation

exemption for anything that might be labeled ‘opinion.’” Milkovich v. Lorain J.

Co., 497 U.S. 1, 18 (1990). But similar principles as those applicable under the

Utah Constitution are operative, including a requirement that the plaintiff

show proof of both fault and falsity, Philadelphia Newspapers, Inc. v. Hepps,

475 U.S. 767, 776 (1986), thus exempting from liability statements made by

media defendants on matters of public concern that constitute only “rhetorical

6 This non-exhaustive list of factors bears some resemblance to the

factors relevant to determining whether a statement’s context renders it non-defamatory despite its literal words. Cf. Hogan, 762 F.3d at 1106 (citing Dobbs at § 526 (2d ed. 2014)). The partial overlap makes sense: there, the inquiry is whether, in context, a statement is defamatory and “convey[s] a false representation of fact.” Id. (quotation omitted). Here, the inquiry is whether the statement is a privileged opinion rather than a factual assertion. We recognize, as a general matter, that opinions privileged by the Utah Constitution might also (though not always) independently fail to constitute defamation in the first instance because they convey no objectively verifiable fact. 30 Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 31

hyperbole,” Greenbelt Co-op. Pub. Ass’n v. Bresler, 398 U.S. 6, 14 (1970). And

statements that may not “‘reasonably be interpreted as stating actual facts’

about an individual” are protected. Milkovich, 497 U.S. at 20 (alteration

adopted) (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50 (1988)).

These First Amendment principles can reasonably be said to protect at least

“evaluative opinions.” Moody’s Investor’s Servs., 175 F.3d at 853. This means

that statements that are “too indefinite to be proven true or false,” that are not

subject to proof of falsity by objective evidence, or that are based on factual

premises that have already been “fully disclosed” are exempt from liability

under the First Amendment. Id. at 853–54 (collecting cases).

Kubler argues on appeal that her statements made at the karaoke bar

are protected by the constitutions of both the United States and Utah. We

agree. In this posture, we determine whether the First Amendment protects

Kubler’s statements by looking to whether they are mere evaluative opinions

constituting “rhetorical hyperbole” or “imaginative expression[]” rather than

“stating actual facts” about Lichfield. Mink v. Knox, 613 F.3d 995, 1005 (10th

Cir. 2010) (quotation omitted). Because this analysis overlaps heavily with

Utah’s constitutional analysis, see West, 872 P.2d at 1018, we will discuss the

doctrines in parallel.

Begin with the introductory clause: “It was surreal to see Narvin in

person[.]” The Program, Part 3 at 48:04. Because it describes the experience of

31 Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 32

seeing Lichfield in person, we can infer that the clause is drawn from the

speaker’s personal experience. This conclusion is further reinforced by the

word “surreal,” which itself is a subjective, qualitative descriptive term.

Because there is nothing inherently surreal about seeing a person singing

karaoke, we can easily infer that Kubler is describing her personal and

subjective experience in this segment.

And, in the next portion of the sentence, the narrator makes explicit the

reason for her experience of sur-reality: her personal knowledge. She

continues: “knowing everything I know about this guy: the children he abused,

the parents he conned, all the crimes he’s gotten away with.” Id. at 48:07. Here,

in referencing what she knows, Kubler ties the subjectivity of her experience

to purportedly real-world occurrences. But the question remains whether these

occurrences are “capable of being objectively verified as true or false.” West,

872 P.2d at 1018. Or, in the language of the First Amendment, whether they

are “evaluative opinions,” that are “too indefinite to be proven true or false,”

Moody’s Investor’s Servs., 175 F.3d at 853, or “rhetorical hyperbole” that falls

short of “stating actual facts” about Lichfield. Mink, 613 F.3d at 1005.

Kubler makes three allegations that she presents as personal knowledge.

The first is that there are children whom Lichfield “abused.” This could be

understood in a certain context to mean specific types of abuse. For instance,

if a prosecutor at a criminal hearing in a Utah courtroom represented to a judge

32 Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 33

that a particular person abused children, a reasonable listener would

understand that to be an accusation of violating the state’s prohibition on child

abuse. See Utah Code Ann. § 76-5-109. But there are other meanings that the

relevant term “abused” can and does take in common speech. Elsewhere in the

series, the term “abuse” is used to refer to Ivy Ridge staff members’ use of

physical restraints that seem to at least border on assault. See, e.g., The

Program, Part 1 at 33:20. This term is also used to refer to an adult’s sexual

exploitation of juveniles. See id. at 41:45; The Program, Part 2 at 59:20. But it

is additionally used to refer to allegations of “isolation” and “brainwashing.”

The Program, Part 2 at 14:44.

In the Amended Complaint, Lichfield concedes that the term may be

used malleably. He alleges:

The [s]eries presented allegations of “abuse” that conflate loose definitions of abuse with actual claims of legal abuse, characterizing the military academy-style discipline of grossly troubled and criminally convicted teenagers (such as by turning ninety degrees at corners) as abuse while then accusing youth programs it claims Narvin was involved with of legitimate abuse, such as assault.

Aplt. App. at 18.

Dictionaries confirm that the term can take a broad range of meanings.

People have been abused when they are “treat[ed] without consideration or

fairness,” Abuse, Webster’s Third New International Dictionary 8 (2002),

“treat[ed] . . . with cruelty or violence,” Abuse, New Oxford American

33 Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 34

Dictionary 7 (3d ed. 2010), or “hurt or injure[d] by maltreatment,” Abuse,

American Heritage Dictionary of the English Language 8 (5th ed. 2016). These

broader definitions surely capture conduct that would fall outside the scope of

criminal statutes. So, we will need to reference more than just the literal words

that are challenged. Here, again, context is critical.

Turning back briefly to our hypothetical criminal proceeding, we would

say that the “full context” of a prosecutor’s statement would incorporate the

“common usage” of the words in that setting to mean that the prosecutor

referred to a violation of Utah’s criminal law. See West, 872 P.2d at 1018. And

such a statement would be “capable of being objectively verified,” presumably

by a jury or other factfinder responsible for adjudicating guilt. See id. But when

looking to the “full context” of Kubler’s statement and the “broader setting in

which [it] appears,” West, 872 P.2d at 1018, we reach a different conclusion.

To begin with, Kubler is not a prosecutor, and she did not speak in the

context of a criminal hearing. She spoke, instead, in a narrative dubbed over

top of video showing people drinking, dancing, and singing karaoke. Shortly

after the challenged segment, Kubler, speaking to the camera from a front

porch, underlines her lack of legal training. During this monologue she

concedes that she does not know if a law enforcement agency will investigate

Lichfield, whether he will be subject to prison time, or whether he will be

subject to “whatever punishment is due for people who abuse children.” The

34 Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 35

Program, Part 3 at 49:45. After all, Kubler concedes, “I’m not a law

enforcement agency, I’m just a kid trying to expose the truth. And it really just

started out just to show my dad because he didn’t believe me.” Id. at 50:05.

Indeed, Kubler is the quintessential unreliable narrator. She admits that

she is “not a real journalist” and more of an “amateur gumshoe.” Id. at 3:11.

Elsewhere in the series she compares herself to the wrongly-imprisoned

protagonist in The Count of Monte Cristo and acknowledges that she returned

to Ivy Ridge to get “revenge.” The Program, Part 1 at 27:47. And this story of

revenge is expressly personal. In the series’ early segments, she describes

“look[ing] back at” her home videos “and try[ing] to pinpoint where things went

wrong.” Id. at 5:05. She describes her mother’s death from cancer, id. at 5:32,

and her father’s re-marriage to her “evil stepmother,” id. at 6:08. Kubler

recounts that when things “got really bad at home,” she began “beg[ging] her

dad to go somewhere, anywhere, as long as [Kubler] didn’t have to stay with”

the stepmother. Id. at 6:46. The series explains that Kubler enrolled in a

religious boarding school, and then, upon getting expelled, was taken to Ivy

Ridge.

This is not only an origin story but a personal narrative framework

around which the series is built. It is interspersed with clips from Kubler’s

childhood home videos, see, e.g., id. at 4:31; The Program, Part 3 at 51:58, and

she repeatedly cries while discussing the effect of her experience at Ivy Ridge

35 Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 36

on her familial relationships, see, e.g., The Program, Part 2 at 21:40

(conversation with sisters); id. at 53:10 (conversation with father); The

Program, Part 3 at 50:05 (monologue to camera). While interviewing a

purported “cult expert,” Kubler says that she’s “been going through a years-

long process to try to deprogram” her father from what she believes to be a cult.

The Program, Part 2 at 42:25. She cuts off in-person communication with him

and reproduces images of his emails on screen. See, e.g., id. at 43:11. When

they meet in person for the first time in years, she records it. Id. at 54:20. The

meeting is not exactly mutually amicable. When he arrives, he is apparently

unaware that he was going to be recorded. The first thing she asks him is:

“What do you have to say for yourself?” Id. at 54:50.

In addition to centering her familial relationships in the narrative,

Kubler also discusses the effects of her childhood experiences in the troubled-

teen facility on her mental health. When burning files apparently taken from

Ivy Ridge’s abandoned campus, she tells her friends: “[T]his is therapy.” The

Program, Part 3 at 59:40. She is also shown apparently engaging in literal talk

therapy, id. at 57:34, and discusses her symptoms of complex post-traumatic

stress disorder, id. at 56:58, and anxiety, which she attributes to her time at

Ivy Ridge, The Program, Part 2 at 57:45.

Kubler does not just articulate these negative experiences and outcomes

and attribute them to the troubled-teen industry, she also advocates for public

36 Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 37

policy changes and law enforcement intervention. When interviewing a Utah

state senator, she asks him to watch the series to determine if Robert Lichfield

– the Plaintiff-Appellant’s brother – should be put on a “blacklist.” The

Program, Part 3 at 46:40. In a different segment, she calls for law enforcement

“get their shit together and investigate.” Id. at 49:45. And in the concluding

minutes of the series, she broadens her demand for change: “There are

thousands of children still trapped in these programs . . . the abuse of a child

is the business of anyone who knows about it. And now you know.” Id. at

1:03:35.

This is all to say that, contrary to the operative complaint, the series does

not “present[] itself as an objective documentary” as a reasonable viewer would

understand it. Contra Aplt. App. at 16. Kubler admits that she has an axe to

grind and that her films are intended to be a piquant commentary on boarding

schools for troubled teens. The series Kubler created is, at times, highly

personal. It seeks to convince her father that her complaints are non-frivolous.

And, simultaneously, it seeks to motivate law enforcement, legislators, and the

public to modify their positions on the troubled-teen industry. Given this

operative context and the broad range of meanings that the word “abused” can

take, it is impossible to objectively verify whether or not Lichfield abused

children in the meaning expressed by this segment.

37 Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 38

In fact, a reasonable viewer would understand that Kubler refers to

abuse in this context not to accuse Lichfield of some discrete act never aired,

but to argue that he is responsible for conduct facilitated by WWASP that – in

her view, and described elsewhere in the series – should be considered abuse,

whether or not it is violative of a particular criminal statute. As Lichfield

concedes on video, he’s “either a sinner or a saint based on whatever argument

you want to believe.” The Program, Part 3 at 24:01. Kubler wants you to believe

Lichfield is a sinner, not a saint. That is precisely the sort of subjective view

that the Utah Constitution protects as privileged opinion. See West, 872 P.2d

at 1018. And, similarly, under the First Amendment, she has stated

“evaluative opinions,” Moody’s Investor’s Servs., 175 F.3d at 853, consisting of

– at most – “rhetorical hyperbole,” Greenbelt, 398 U.S. at 14.

Kubler’s references to “the parents [Lichfield] conned,” and “all the

crimes he’s gotten away with” do nothing to change this conclusion. See The

Program, Part 3 at 48:04. Like “abused,” the term “conned” takes a broad range

of meanings. And it is used earlier in the episode to refer to WWASP’s business

model of “holding children hostage in remote locations with unqualified staff,

while they con parents with cult-like seminars and collect the checks.” Id. at

22:20. So, again, the context shows that Kubler is not accusing Lichfield of

some separate criminal fraud but instead critiquing a business model that she

views and presents as illegitimate.

38 Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 39

This court has previously credited the proposition that “lying” may be

nonactionable hyperbole because it applies to a “spectrum of untruths.” See

Brokers’ Choice, 861 F.3d at 1136 n.92 (citing Underwager v. Channel 9

Australia, 69 F.3d 361, 367 (9th Cir. 1995). And we have also recognized that

the First Amendment protected a news broadcast’s opinion that a particular

product was a “scam,” Moody’s Investor’s Servs., 175 F.3d at 854 (citing NBC

Subsidiary (KCNC-TV), Inc. v. Living Will Ctr., 879 P.2d 6, 11–12 (Colo. 1994)

(en banc)), because the statement expressed “nothing more than his judgment

that people need not pay for a [certain product] because they can get [the most

valuable portion] free,” Living Will Ctr., 879 P.2d at 11. The same principle

applies here. Indeed, its application is even more powerful where it is

presented not by a traditional broadcast journalist but by a self-admitted

“amateur gumshoe” who thinks of herself as a “kid” and admits she is out for

“revenge.”

For its part, “crime[]” can reasonably be said to refer to conduct

prohibited by the broad scope of the criminal law. To the extent that Kubler

could be alleging that Lichfield violated some already extant criminal statutes

(and is not merely arguing for a shift in public policy to create new substantive

crimes), her amorphous allegations are untethered from specific allegations of

criminal activity that could be actionable under defamation laws. This sort of

general reference to criminal activity is the sort of thing that is not “capable of

39 Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 40

being objectively verified as true or false,” West, 872 P.2d at 1018, because

“there is simply no objective evidence that could prove that [it is] false,”

Moody’s Investor’s Servs., 175 F.3d at 854.

The broad-sweeping and inherently subjective language of Kubler’s

statements, in conjunction with context that exacerbates their subjectivity,

render her speech protected as privileged opinion under the Utah Constitution

and as evaluative opinion under the First Amendment. The district court

correctly held that Lichfield failed to allege a statement capable of defamatory

meaning in this third contested segment.

C

We next turn to Lichfield’s anti-SLAPP arguments made on appeal,

which differ from the argument he made before the district court. On appeal,

Lichfield argues that “state anti-SLAPP laws do not apply in federal diversity

actions under Erie.” Op. Br. at 48 (bolding and capitalization omitted).

Additionally, he argues that the district court independently erred by treating

the anti-SLAPP standard as equivalent to Rule 12(b)(6) and “impos[ing] a

consequence (fee-shifting) that would not normally attach” to dismissal under

that Rule. Id. at 53. But Lichfield made neither of these arguments in the

district court. In fact, his district court arguments were directly contrary to the

arguments now made on appeal.

40 Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 41

The invited error doctrine “prevents a party who induces an erroneous

ruling from being able to have it set aside on appeal.” United States v. Burson,

952 F.2d 1196, 1203 (10th Cir. 1991). Or, stated otherwise, it “precludes a party

from arguing that the district court erred in adopting a proposition that the

party had urged the district court to adopt.” Peterson v. Martinez, 707 F.3d

1197, 1208 (10th Cir. 2013) (quoting United States v. DeBerry, 430 F.3d 1294,

1302 (10th Cir. 2005)). Because the doctrine only applies when the party has

decided to argue a particular point, it is treated as a species of waiver, rather

than forfeiture. Id. (citing United States v. Zubia-Torres, 550 F.3d 1202, 1206

(10th Cir. 2008)).

The doctrine applies here. In the district court, Kubler filed an omnibus

motion to dismiss under Rule 12(b)(6) and to strike pursuant to state anti-

SLAPP laws. In the motion, she argued that Utah and California anti-SLAPP

laws are identical for the purposes of this case, and – in the alternative – that

the district court should apply California’s law. Lichfield filed a brief in

opposition. On the first page of his brief, he included a footnote stating:

“Lichfield argues that the Utah [anti-SLAPP law] should be applied to all

claims in this matter.” Aplt. App. at 225 n.1. Then, he headed the relevant

subsection of his brief, in bold: “The Utah [Anti-SLAPP Law] Applies.” Id. at

239. In support of this argument he cited to Erie Railroad Co. v. Tompkins for

the proposition that “federal courts sitting in diversity apply the forum state’s

41 Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 42

substantive law.” Id. at 240 (citing 304 U.S. 64 (1938)). He went on to argue

that application of the Utah law “does not automatically dismiss [his] claims.

The court must still conduct a claim-by-claim analysis under the Rule 12(b)(6)

standard.” Id.

So, when Lichfield now argues on appeal that “under binding Tenth

Circuit precedent, the district court should have denied the anti-SLAPP motion

outright on Erie grounds,” Op. Br. at 52, his audience is unreceptive. Lichfield

made precisely the opposite argument in district court: that Erie should lead

to application of Utah anti-SLAPP law and that his claims survived the motion.

Lichfield could have argued to the district court that state anti-SLAPP laws

are categorically inapplicable in federal court, and – in the alternative – that

Utah law would be the appropriate choice of law if application of such laws did

comport with Erie. Cf. Peterson, 707 F.3d at 1208. But Lichfield made no such

argument. Thus, on appeal, he “cannot be heard to complain of any [such]

alleged error.” Id.

The same principle applies to Lichfield’s argument that the district court

erred by treating the anti-SLAPP standard as equivalent to Rule 12(b)(6). He

asked the district court to follow that procedure. Now, unhappy with the result,

he complains that the district court accepted his argument. He has invited

these errors, and so he must live with them. We treat Lichfield’s anti-SLAPP

arguments as waived.

42 Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 43

D

Lichfield additionally argues that the district court erred by dismissing

his suit without granting him leave to amend the complaint. But he also

implicitly concedes that he did not move for leave to amend in the manner

contemplated by our caselaw. See Reply Br. at 24–25. And he is right to

concede, because his opposition to dismissal in the district court contained only

one line requesting leave to amend, and only if Kubler’s motion was granted.

This court has said that a “single sentence, lacking a statement for the grounds

for amendment and dangling at the end of [a] memorandum [does] not rise to

the level of a motion for leave to amend.” Calderon v. Kansas Dep’t of Soc. &

Rehab. Servs., 181 F.3d 1180, 1187 (10th Cir. 1999). We think it makes no

difference for purposes of this rule that Lichfield’s single sentence appeared on

the first, rather than last, page of his opposition briefing. Because he did not

move for leave to amend in the manner required, the district court “did not

abuse its discretion in failing to address [his] request.” Id.

E

Finally, we address an issue that only became operative on appeal. In

his Opening Brief, Lichfield included citation to a legal authority that does not

exist, see Op. Br. at 39, and characterized two cases in manners wholly

unsupported by the text of the opinions, see Op. Br. at 43, 45. Kubler pointed

out these errors in response, see Resp. Br. at 48–49, and although Lichfield

43 Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 44

conceded in reply that his Opening Brief “contained several citation errors”

and contended that the errors “h[ad] been corrected,” he did not file a corrected

brief, see Reply Br. at 6. When questioned at oral argument, counsel offered to

file a notice directly correcting the statements at issue. And, indeed, the

authoring attorney filed the next day a Notice of Errata, identifying the specific

errors in the opening brief and providing actual, existing authority that could

support the arguments made.

The rules of this court provide that when an attorney presents a brief to

the court, they certify, inter alia, that they have undertaken a reasonable

inquiry to ensure that “the issues presented are warranted by existing law or

by a nonfrivolous argument for extending, modifying, or reversing existing

law.” 10th Cir. R. 46.5(B)(2). It should go without saying that a bare-minimum

reasonable inquiry will ensure legal authorities cited in papers submitted to

the court actually exist, and the quotations or propositions attributed to them

also exist. The Opening Brief in this case therefore failed to fully comply with

Rule 46.5.

The filing of this non-compliant brief is conduct sanctionable at our

discretion. 10th Cir. R. 46.5(C). Our rules empower us to issue sua sponte

sanctions, which may include: dismissal of the appeal, an order of monetary

payments, initiation of disciplinary proceedings, and an order to pay the

44 Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 45

opposing party’s reasonable expenses that resulted from the paper in question.

This court has recently issued sanctions for the use of generative

artificial intelligence that resulted in the filing of a brief with citations to seven

cases that do not exist and two cases that do exist but do not contain the

quotations that the briefing alleged. Amarsingh v. Frontier Airlines, Inc., No.

24-1391, 2026 WL 352016, at *5 (10th Cir. Feb. 9, 2026) (unpublished). 7 There,

the filer – who is a barred attorney but was litigating the case pro se –

addressed the issue with “candor,” and we stated that we “appreciate that she

is willing to try to do better” and “may have taken steps in that direction.” Id.

at *6. But this was ultimately not sufficient to wholly mitigate her frivolous

argument. Id. at *7. We thus ordered the attorney to pay $1,000 to offset

opposing counsel’s fees and costs and directed the Clerk’s Office to refer the

matter to the relevant disciplinary body. Id. at *7–8.

Here, the errors are not as egregious. Although we assume the use of

generative artificial intelligence led to the misrepresentations of legal

authority, the brief here had significantly fewer errors than in Amarsingh. But,

on the other hand, generative artificial intelligence is no longer a novel tool.

Attorneys who choose to use it must be willing to also apply “actual intelligence

7 We cite unpublished decisions for their persuasive value only and do

not treat them as binding precedent. 10th Cir. R. 32.1(A). 45 Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 46

in its execution.” Id. at *6 (quotation omitted). We are further concerned that

the Reply Brief did not appropriately remedy the misstatements of law. After

briefly acknowledging “several citation errors” and contending that they “have

been corrected,” counsel went on to attack the opposing party. Reply Br. at 6.

He contended that “[t]he more significant issue” was “mischaracterizations of

controlling authority” in the Response Brief. Id. But those purported

mischaracterizations were grounded in the words of cases that indeed exist. It

is the court that decides which issues are “more significant.” And the errors in

the Opening Brief are more significant in this case.

We appreciate that counsel filed a Notice of Errata the day after oral

argument. But it should not have taken questioning at argument to elicit such

a response. Submission of a brief containing fabricated or hallucinated

citations is a divergence from the standards expected of attorneys appearing

before this court. Any such error should be corrected explicitly and without

prompting.

The missteps in this case do not merit sanctions. However, counsel

should take note that although generative artificial intelligence may attract

with the promise of less laborious brief writing, its use may result in

hallucinated falsities. Counsel is responsible for ensuring briefs and

46 Appellate Case: 25-4135 Document: 44-1 Date Filed: 07/27/2026 Page: 47

representations made to the court are warranted by the law and supported by

the record, no matter the technology used to create them.

AFFIRMED.