State v. Carpenter

171 P.3d 41, 2007 WL 3121658

Opinions

OPINION

EASTAUGH, Justice.

I. INTRODUCTION

Juneau resident Karen Carpenter wrote a letter to a Juneau radio station complaining about the Tom Leykis Show, a national radio talk show broadcast locally by the station. The station forwarded her letter to Tom Leykis, who read it on the air while making derogatory and sexually explicit remarks about Carpenter and making other comments that allegedly inflamed listeners and encouraged them to contact or confront Carpenter. Carpenter sued Leykis and his producer, Westwood One, for defamation, intentional and negligent infliction of emotional distress, and invasion of privacy. She also sued for spoliation of evidence, claiming Westwood One and Leykis intentionally destroyed the tape of part of the show. The superior court granted summary judgment against Carpenter on her defamation, negligent infliction of emotional distress, and false light privacy claims, but submitted her spoliation, intentional infliction of emotional distress (IED), and "intrusion upon seclusion" claims to a jury. The jury found for Leykis and West-wood One on the IIED and intrusion claims and found for Carpenter against Westwood One on the spoliation claim and awarded her compensatory and punitive damages against Westwood One. The parties appeal rulings concerning the defamation, privacy, and IIED claims. Westwood One challenges the spoliation verdict and the damage awards. Carpenter disputes the constitutionality of allocating part of the punitive damages award to the State of Alaska, and she and the state raise questions about how that allocation should have been calculated. We reverse in part and remand because we conclude that Instruction No. 17 erroneously limited the jury's consideration of Carpenter's IIED claim. With a minor exception relating to costs, we otherwise affirm the superior court's rulings.

II. FACTS AND PROCEEDINGS

Tom Leykis is a "radio personality"; in 1998 he hosted the Tom Leykis Show, a four-hour radio talk show. Sex-related topics were a common feature of the program. Westwood One, Inc. produced and distributed the show as a live radio program broadcast five days a week by radio stations nationwide. Juneau AM radio station KJNO broadcast the show weekdays from two to six p.m. in the Juneau area between June 8 and July 24, 1998.

Karen Carpenter, a Juneau resident, first heard the show on July 20, 1998. Carpenter testified at trial that she was concerned about its content, and expressed her concerns to a City and Borough of Juneau assembly member on July 21 and also made or tried to make various inquiries to other government officials asking about decency laws. Carpenter testified that she contacted "three or four" KJNO advertisers on July 22 and asked them if they knew their ads. were being run during the Tom Leykis Show and whether they wanted their advertising dollars to support the content of the show. Carpenter then faxed KJNO a letter stating that she found "the majority" of the show "very offensive" and that she thought it was unsuitable to air when children might be listening. Her letter informed KJNO that she had contacted and would continue to contact Juneau radio advertisers whose ads ran during the Tom Leykis Show and that she would "do everything in [her] power to have the show taken off the air as soon as possible." The station placed the letter, which displayed Carpenter's fax number, in its "public file." Someone at KINO faxed a copy of the letter to the Tom Leykis Show in California with a handwritten note, "Have fun." Carpenter testified that she was unaware that, as required by federal regulations, the letter would be placed in the station's public file.¹

Around that time, Steve Rhyner, KJNO's station manager, decided to take the Tom Leykis Show off the air because major advertisers had complained about the program and Rhyner objected to the content of one particular show. July 24, 1998 was the last day the Tom Leykis Show was broadcast in Juneau.

During the July 24 broadcast, Leykis made several remarks about KJNO's cancellation of the show and Carpenter's letter. He de-seribed those who objected to the show as "some small band of old prunes and old blue-hairs, nut cases and all these cretins." He said: "[Alfter we go, keep an eye on our web site. I'm going to find out who these people are [who cancelled the show], and we'll put it up on the web site." He complained "I hate those-those old biddies who sit out there and have nothing better to do than to write in to radio stations." He also said: "Maybe if this woman had gotten laid in the last 50 years, who writes into the station and started making all these waves, maybe she wouldn't be complaining so much. I'm not kidding." After reading Carpenter's letter on the air, Leykis commented:

And it's signed, the woman who wrote the letter-it's signed: Karen Carpenter. Well Karen, I have a little something that you could use right about now. [buzzing sound intended to simulate the sound of a vibrator]

Sit on this, you old prune. Come on, get close to the radio. Get right on top of the speaker, baby. You moron. You jerk. You and your little band of nut cases out there, trying to decide what's going to be on the radio in Juneau, Alaska. You know, maybe you ought to go out and get laid once in awhile, huh? [buzzing sound]

You eretin. Are your nipples getting hard yet, baby? Feel the power. You can't stop this show. Oh, you can stop Juneau, Alaska. But you can't stop me....

You and your stupid-your stupid church and your stupid religion, and you and your stupid god damned bunch of marauders. You morons. Jerks.

I'm enjoying this. I'm sporting wood right now, just thinking about it. Woo hoo....

[[Image here]]

Oh, Karen Carpenter. Karen Carpenter wanted our show off the air. No, not that Karen Carpenter. But Karen, sit on it, baby. [buzzing sound]

Oh, yeah. See, if you got more of this, you wouldn't be writing complaint letters to the station.

Later in the show, a Juneau caller attempted to broadcast Carpenter's home telephone and fax numbers, which were listed in the local telephone directory under "KL. Carpenter," and expressed the hope that people would "send her faxes." The telephone number was partially bleeped out. Around this time, according to the trial testimony of one of Carpenter's friends, Leykis also encouraged his listeners to make Carpenter's telephone "ring off the hook." Later in the program a Juneau fan called in to praise the show. Leykis responded: "Well, we hate to lose you, but like I say, stay tuned, 'cause we're going to get back on in Juneau.... And we're going to make that woman's life a living hell." According to the trial testimony of another of Carpenter's friends, this "living hell" comment was "used repeatedly throughout the broadcast."

Carpenter heard the first part of the broadcast and learned about other parts of the show from friends who had heard it. She testified later that she felt humiliated and sexually violated. She testified that she received a telephone message at her home that repeated part of what Leykis had said about her. She also received several "threatening" faxes at her home. Carpenter was later diagnosed with post-traumatic stress syndrome and an anxiety disorder.

The Tom Leykis Show was recorded in the studio on VHS videotapes as the show aired. These tapes were stored in a drawer in the studio; as soon as the drawer was full, the tapes were recycled, erasing the recordings. There were various estimates of how long the tapes stayed in the drawer. A Westwood One executive estimated they stayed there four to six months, while the show's producer testified that "judging by the size of the drawer, [the tapes] go back six to eight months, or approximately a year."

Carpenter wrote in an affidavit that she "believe[d]" she requested a copy of the July 24, 1998 tape from Westwood One and never received a response, and at trial she testified with certainty to having requested a copy. She also made several requests through her lawyers. Attorney Robert Reges testified that he sent an email to KJNO requesting a tape "soon after" the July 24 broadcast. An affidavit from KJNO employee Justin McDonald indicates that Reges did not identify himself as a lawyer, and did not admit the true purpose of his request.

On December 24, 1998, five months after the broadcast, another Carpenter attorney, Jim Douglas, wrote a letter to KJNO and Westwood One, requesting a tape and making it clear that legal action might be forthcoming. No address was given for West-wood One, just the name of the company and its street address in California. Westwood One employees testified that they had not seen the letter, but the show's producer testified to a general recollection that the company's legal department had requested the tape and that upon receiving such a request he would have made a copy of the tape and sent it to the legal department. He recalled that a copy "was found." He also testified that he "would not intentionally have altered or destroyed a tape of thle] show, and that he did not do so." Douglas testified that he never received a response from Westwood One, and that KJNO told him that the station had forwarded the letter to Westwood One. The only copy of the July 24 show ever found was a cassette of the first two hours; KJNO's Justin McDonald provided this tape and recalled in an affidavit that Westwood One had sent him the tape "possibly before the end of 1998." He kept the cassette with his personal tapes and forgot about it until Steve Rhyner requested it in 2001. There was no evidence that a recording of the second half of the four-hour show ever surfaced.

Carpenter filed a superior court complaint against Tom Leykis, Westwood One, KJNO, Alaska Broadcast Communications, Inc., and Steve Rhyner. She alleged that Leykis's comments about her on his July 24, 1998 broadcast were defamatory, caused negligent and intentional infliction of emotional distress, and placed her in a false light. She also alleged that Leykis and Westwood One spoliated evidence.

Alaska Broadcast Communications, West-wood One, and Leykis filed summary judgment motions on all of Carpenter's claims on grounds that Leykis's comments were protected by the First Amendment and that Carpenter was "a limited public figure on the issue of obscenity in the mass media." Carpenter filed a motion for partial summary judgment on her claims of intentional infliction of emotional distress (IIED), negligent infliction of emotional distress, invasion of privacy by way of false light publicity and intrusion upon seclusion, and spoliation of evidence. The trial court issued an order granting in part and denying in part the parties' eross-motions for summary judgment. It dismissed Carpenter's claims of defamation, negligent infliction of emotional distress, and false light invasion of privacy. The court declined to grant summary judgment to either side on Carpenter's claims of IIED, intrusion upon seclusion, and intentional spoliation of evidence.

A jury trial was held on those claims. Leykis and Westwood One moved for a directed verdict at the close of evidence and the trial court took their motion under advisement. The jury found that Westwood One had engaged in intentional spoliation of evidence and awarded Carpenter $5,042 in compensatory damages and $150,000 in punitive damages. The jury also returned a verdict for Leykis and Westwood One on Carpenter's claims of IIED and intrusion upon seclusion and for Leykis on her spoliation claim. As to the spoliation claim, Westwood One's directed verdict motion was converted to a motion for judgment notwithstanding the verdict. The trial court ruled that the directed verdiet motions were moot as to the invasion of privacy and IIED claims; it denied the JNOV motion as to the spoliation claim.

Carpenter moved after trial for an order declaring AS 09.17.010(b) and AS 09.17.020(J) unconstitutional. Alaska Statute 09.17.010(b) imposes a cap on non-economic damages awards in personal injury and wrongful death cases. Because the jury's award did not include non-economic damages, the trial court dismissed as moot the portion of Carpenter's motion addressing AS 09.17.010(b). Alaska Statute 09.17.020(J) requires payment of fifty percent of a plaintiff's punitive damages award to the State of Alaska.² The trial court ruled that AS 09.17.020(J) was constitutional. Carpenter also objected to the form of the judgment proposed by the defendants; she argued that the court should deduct from the punitive damage award the contingent fee (including her costs) she owed her attorneys before the court awarded one-half of the remainder to the state. The State of Alaska intervened to protect its interest in the punitive damages award. The trial court ruled that it would deduct the contingent fee from the punitive damages award before distributing one-half of the balance of the award to the state. The trial court issued a final judgment on June 27, 2002. On September 20, 2002, it denied Carpenter's motion to deduct fifty percent of her costs from the state's portion of the punitive damages award.

Leykis, Westwood One, and Carpenter all moved for attorney's fees. The trial court denied all fees motions and ordered the parties to bear their own fees and costs.

In Case No. S-10709 Carpenter appeals the trial court's grant of summary judgment against her on her defamation and false light claims. She also appeals two jury instructions, two evidentiary rulings, the ruling on the constitutionality of AS 09.17.020(J), and the denial of her motion to deduct costs from the state's share of the punitive damages award.

In Case No. S-10789 Westwood One appeals the denial of its JNOV motion on the spoliation claim, and also appeals the constitutionality and amount of the punitive damages award; Westwood One and Leykis appeal the denial of their motion for prevailing party attorney's fees and costs.

In Case No. S-10700 the state appeals the pro rata deduction of Carpenter's attorney's contingency fee from the state's share of the punitive damages award.

IH. DISCUSSION

A. The Superior Court Did Not Err in Granting Summary Judgment Against Carpenter on Her Defamation Claim.

Carpenter appeals the superior court's grant of summary judgment to Leyk- is and Westwood One on Carpenter's defamation claim.³ We review grants of summary judgment de novo,⁴ considering the facts presented in a light most favorable to the non-movant to determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law.⁵ We apply our independent judgment to constitutional law issues.⁶

The elements of a defamation claim are: (1) a false and defamatory statement; (2) unprivileged publication to a third party; (3) fault amounting at least to negligence; and (4) either per se actionability or special damages.⁷ A defamatory statement " 'tends to harm the reputation of another so as to lower [her] in the estimation of the community or deter third persons from associating or dealing with [her].'" ⁸ An expression of opinion is defamatory if the expression contains an implied assertion of false fact and is sufficiently derogatory as to cause harm to the subject's reputation.⁹ It is not necessary that the communication actually cause harm to another's reputation; its character depends upon its general tendency to do so.¹⁰ "If the context demonstrates to the audience that the speaker is not purporting to state or imply actual, known facts, the speech cannot be the basis for a defamation claim." ¹¹

The common law rule that a pure expression of opinion may serve as the basis for a defamation action was rendered unconstitutional by recent United States Supreme Court decisions. The Supreme Court has held that the First Amendment bars defamation actions if the allegedly defamatory statements are pure expressions of opinion, not implied or stated assertions of false fact.¹² The Court recognized that "[the freedom to speak one's mind is not only an aspect of individual liberty-and thus a good unto itself-but also is essential to the common quest for truth and the vitality of society as a whole." ¹³

The superior court granted summary judgment against Carpenter on her defamation claim, reasoning that Leykis's statements "about Ms. Carpenter ... [were] opinionated insults" protected by the First Amendment. The court held that Leykis's statements were "hyperbole, used only for shock value, and d[id] not state or imply any factual basis." We agree.

In Sands v. Living Word Fellowship, we explained: "[tlo ascertain whether a statement is factual, courts consider 'the type of language used, the meaning of the statement in context, whether the statement is verifiable, and the broader social cireumstances in which the statement was made.'" ¹⁴ Many of Leykis's remarks about Carpenter were pure insults that were not factually verifiable. Even those statements that could constitute implied factual assertions, such as those about Carpenter's sexual habits, were not "factual" under the cireumstances. No listener would understand Leykis's remarks about Carpenter's sexual habits to imply actual facts about Carpenter. Sex-related jokes were a common feature of the show. Even if Leykis's remarks implied that Carpenter was in fact sexually frustrated and deprived, no reasonable listener would believe that Leykis was purporting to reveal actual, known facts about Carpenter.¹⁵ While Leykis's statements were offensive to any rational person, they were not defamatory.¹⁶

On appeal, Carpenter argues that the distinction between fact and opinion is inappo-site because Leykis's statements fell within categories of speech that are not protected by the First Amendment. She offers three grounds on which to hold that the speech was unprotected: (1) it was indecent speech broadcast when children would likely hear it; (2) it was obscene; and (8) it constituted fighting words.

For her first argument she relies on the United States Supreme Court's decision in FCC v. Pacifica Foundation.¹⁷ That decision does not support her claim, however, as it only decided whether the government has the power to regulate indecent speech that is broadcast by radio at times when children are likely to overhear it.¹⁸ Pacifica held that indecent speech is not entitled to absolute constitutional protection and that under limited cireumstances, the Federal Communications Commission may constitutionally regulate it. The ageney may not prohibit the speech entirely, however; it may only channel the communication. Thus the speech is unprotected only insofar as it subject to the agency's time, place, and manner restrictions. The decision is therefore inapplicable to Carpenter's defamation claim.

Carpenter's other two arguments also fail. Leykis's statements, however offensive, do not satisfy the three-pronged test for obscenity set out in Miller v. California.¹⁹ Likewise, they do not fall within the classic "fighting words" category of unprotected speech. The "fighting words" exception is limited to words that "by their very utterance ... tend to incite an immediate breach of the peace."²⁰ Leykis's statements, uttered over the radio, were unlikely to achieve "an immediate breach of the peace." They may have encouraged listeners to retaliate against Carpenter, presumably by telephoning or faxing her at home. An exhortation for action of that sort is relevant to Carpenter's IIED claim. See Part IIIC. But his words are insufficient to be the basis for a defamation claim based on a theory that Leykis uttered "fighting words."

B. The Superior Court Did Not Err in Granting Summary Judgment Against Carpenter on Her False Light Invasion of Privacy Claim.

Carpenter argues that the superior court erred in granting summary judg ment to Leykis on her claim of false light invasion of privacy. A false light invasion of privacy claim arises when the defendant publicizes a matter that places the plaintiff before the public in a false light.²¹ In many cases, the publicity is defamatory, although a plaintiff need not show injury to reputation to prevail on a false light claim.²² An action for false light invasion of privacy differs from an action for defamation because a defamation claim redresses damage to reputation while a false light privacy claim redresses mental distress from exposure to public view.²³ Like defamation liability, however, false light lability requires at least knowing or reckless disregard of the falsity of the assertion of fact.²⁴ Because opinions cannot be proved false, they cannot give rise to false light liability.²⁵ Carpenter's false light invasion of privacy claim relies on the same statements that formed the basis for her defamation claim. It therefore fails. As we explained in Part IIIA, Leykis's statements purportedly describing Carpenter were opinions, not false statements of fact.

C. Jury Instruction No. 17 Potentially Prevented the Jury from Considering Carpenter's IED Claim Against Leykis.

1. The claimed error

Instruction No. 18 expressly instructed the jury on the elements of Carpenter's intentional infliction of emotional distress (IIED) claim. But Carpenter argues that Instruction No. 17 erroneously restricted the jury's consideration of her IIED claim.

The text of Instruction No. 17 effectively prevented the jury from finding Leykis liable for words "spoken to or about" Carpenter unless the speech fell within either one of two narrow exceptions. Carpenter asserts that it was error to give that instruction because she was not a "public figure" and because even if Leykis's speech was entitled to some protection, the instruction erroneously stated the law as to her IIED claim.²⁶

Carpenter contends that the jury must or could have applied Instruction No. 17 to her IIED claim, and that Special Interrogatory 1 also misdirected the jury as to that claim. That special interrogatory asked the jury to determine whether Leykis's remarks about Carpenter were "intended to provoke a hostile reaction under cireumstances where a clear and present danger of immediate violence existed." Because the jury answered "No" to that interrogatory, Carpenter reasons that Instruction No. 17 and Special Interrogatory 1 "must have" caused the jury to believe that it "had no choice but to conclude that nothing Leykis said about Carpenter could support her IIED claim." She concludes that the instructional error was prejudicial and that a properly instructed jury could have found that Leykis's outrageous conduct caused Carpenter severe emotional distress. "That outcome is entirely likely," she reasons, given that in answering Special Verdict Form Question (11), the jury found Leykis's conduct to be "outrageous."

Leykis argues that Instruction No. 17 correctly stated the law and did not prejudice the jury's consideration of the IIED claim. Citing Alaska cases²⁷ he argues that speech may be punished in only "the most limited circumstances," and, citing Hustler Magazine, Inc. v. Falwell,²⁸ he argues that the First Amendment forecloses an IIED claim that is based on the same facts as a defective defamation claim. He contends that because Carpenter claimed "emotional distress inflicted through media speech," it was appropriate to instruct the jury on constitutional speech protections.

The propriety of jury instructions generally raises questions of law that are subject to the independent judgment standard of review.²⁹ Jury instructions to which timely objections were made are therefore reviewed de novo.³⁰ Special verdict forms are subject to the same standard of review as other jury instructions.³¹ Errors in jury instructions are not grounds for reversal unless the errors are prejudicial.³² An erroneous instruction is prejudicial if it can be said that the verdict may have been different had the instruction not been given.³³

2. The jury instructions, special interrogatory, and special verdict form

This claim of error requires us to consider the effect of Instruction No. 17, Instruction No. 18, Special Interrogatory 1, and parts of the special verdiet form.

Instruction No. 17 told the jury it could not "consider" as a basis for liability "words spoken to or about" Carpenter unless the speech was unprotected for either of two reasons. It stated:

The law protects most speech. By example, statements of opinion, even if insulting or distasteful, are generally protected speech. -It is only in limited cireumstances that speech can be punished or be the basis of liability for damages. Therefore, you shall not consider words spoken to or about Karen Carpenter unless you find that the speech is not protected because of either of the following reasons:

(1) Speech that is intended to provoke a hostile reaction under cireumstances where a clear and present danger of immediate violence exists is not protected speech.

(2) Publication of private factual information about an individual with knowledge or in reckless disregard that disclosure of the factual information would be highly offensive to a person of ordinary sensibilities is not protected speech. A fact is "private" if (2) it is not known to the public, that is, not a public record and not information legally available to the public or the media; and (b) the private fact is of a kind that, if publicized, would be highly offensive to a reasonable person; and (c) the private fact is not newsworthy, that is, of legitimate concern or' interest to the public or an appreciable percentage of the public.

Instruction No. 18 explained the elements of Carpenter's IIED claim:

Karen Carpenter claims that Tom Leykis or Westwood One or its employees or agents intentionally inflicted emotional distress on her by virtue of a radio broadcast on July 24, 1998.

For Karen Carpenter to recover for this claim of intentional infliction of emotional distress, you must decide that it is more likely true than not true that Tom Leyk- is'[s] or Westwood One['s] or its employee's conduct was extreme and outrageous and that he/they intentionally or recklessly caused Karen Carpenter severe emotional distress.

I will now define "extreme and outrageous conduct", "intentional", "reckless", "legal cause", and "severe emotional distress" for you.

There is no contention that this instruction was erroneous (although Leykis and West-wood One argue here, as they did below, that Carpenter's IIED claim should not have been submitted to the jury).

The superior court gave the jury special interrogatories with an instruction that it was to answer them before turning to the special verdict form. Special Interrogatory 1 asked: "Did Tom Leykis engage in speech related to Karen Carpenter that was intended to provoke a hostile reaction under circumstances where a clear and present danger of immediate violence existed?" The jury answered "No."

The court also gave the jury a special verdict form asking specific questions, including this question: "(1) Did Tom Leykis, by extreme and outrageous conduct, intentionally or recklessly inflict severe emotional distress on plaintiff Karen Carpenter?" The jury answered "No." The special verdict form also asked whether the jury found by clear and convincing evidence that "the conduct of Tom Leykis and/or Westwood One (or its employees or agents) was outrageous and thus subject to an award of punitive damages?" As to Leykis the jury answered "Yes."

3. Distinguishing between Carpenter's defamation/false-light claims and her IIED claims

The question we must decide here is whether, by prohibiting the jury from basing liability on "words spoken to or about" Carpenter unless it found the speech was unprotected for one of the two specified reasons, Instruction No. 17 may have prevented the jury from fully considering Carpenter's IED claim.³⁴ The question is important because the conduct that she asserts was outrageous consists largely of Leykis's conduct in speaking words "to or about" Carpenter during the broadcast. The instructions did not define the phrase "words spoken to or about." The literal and common-sense meaning of that phrase encompasses all words spoken "to" Carpenter, and all words spoken "about" her. This meaning renders the instruction applicable to all words Carpenter alleges were actionable. Some of those words described Carpenter in derogatory and humiliating terms and were central to the defamation and false-light claims that we held above were properly dismissed. But other words did not purport to describe Carpenter. A jury might interpret these other words as having been intended to invite listeners to contact her and make her life a "living hell." We are concerned here with determining whether the instruction potentially prevented the jury from fairly considering whether broadcasting these latter words was outrageous conduct that could be the basis for TIED lability.

We assume that an IIED claim that turns on the truth or falsity of speech is subject to the same limitations that protect speech from claims of defamation. Thus, just as actual malice must be proved by a public figure who is claiming defamation, actual malice must also be proved by a public figure who is claiming IIED based on the same speech that gives rise to a defamation claim.³⁵ Likewise, we assume that just as actual malice must be proved by a plaintiff claiming defamation that arises out of speech on a matter of public concern in Alaska,³⁶ actual malice must be proved by a plaintiff who bases a claim of IIED on the same speech.³⁷

Carpenter argues that the superior court erroneously considered her to be a public figure and that Hustler Magazine, Inc. v. Falwell,³⁸ which applied actual-malice defamation standards to an IIED claim brought by a public figure, consequently does not control Carpenter's IIED claim. The United States Supreme Court has identified two bases on which to find public figure status:

In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.

Footnotes

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[39]

A person in this second category is often referred to as a "limited-purpose public figure." ⁴⁰

We assume that whether Carpenter was a limited purpose public figure would be important to her IIED claim if that claim, like her defamation claim, turned on the truth or falsity of Leykis's words about Carpenter. If the falsity of those words were a necessary element of her IIED claim, whether she was a limited purpose public figure would determine whether under federal law she had to prove actual malice to prevail on her IIED claim.⁴¹ Likewise, if the falsity of those words were a necessary element of her IIED claim, we assume that Alaska law also would have required her to prove actual malice if Leykis's on-air comments to or about her forming the basis of her IIED claim were about a matter of public concern.⁴²

But because her only viable claim is not based on the truth or falsity of Leyk-is's words about Carpenter and is not based on harm to her reputational interest, we conclude that the heightened protections due speech about public figures and matters of public concern do not altogether foreclose Carpenter's TIED claims. We therefore do not need to decide whether Carpenter was a public figure. In Falwell, the United States Supreme Court held that the First Amendment affords heightened protection to speech in the "area of public debate about public figures," regardless of whether the speaker's motivation was ill will, hatred, or mere desire to inflict emotional distress.⁴³ Heightened First Amendment protection does not extend to IIED elaims based on speech that is not about a public figure or about a matter of public concern.⁴⁴ We distinguish between speech, however erude, somehow contributing to the public debate about a public figure or a matter of public concern or directed at persuading the ultimate target to change her mind about a matter of public concern, and speech intended merely to harass or cause others to harass the target. Speech of the latter sort is not entitled to First Amendment protection. A defendant's conduct in uttering words is therefore not invariably constitutionally protected from claims alleging the tort of outrage. Not all words are entitled to First Amendment protection. Instruction No. 17 implicitly, but incompletely, recognized the distinction in telling the jury of two limited examples of unprotected speech.

Unlike her defamation claim, Carpenter's IIED claim was not dependent on the truth or falsity of Leykis's words. Although her IIED claim as she presented it was based in part on what Leykis said in describing her, it was also based on what he seemed to urge his listeners to do and on related on-air statements directed at Carpenter that a jury might interpret as threats to organize an ongoing campaign of harassment against her. Her defamation and IIED claims both arose out of words Leykis allegedly spoke (or allegedly permitted others to speak) during the July 24 broadcast, and Leykis's conduct allegedly included the act of uttering or condoning those words.⁴⁵ But the essence of her defamation claim was the alleged falsity of Leykis's words purportedly describing Carpenter, whereas the essence of the viable part of her IIED claim was the alleged out-rageousness of his conduct in provoking his listeners and inviting them, some of whom, like Carpenter, lived in Juneau, to harass Carpenter and, with him, make her life a "living hell." This was what the trial court characterized as Leykis's "call to arms." Likewise, Leykis's conduct allegedly included disclosing or allowing the disclosure or partial disclosure of Carpenter's home telephone and fax numbers to make it easier for audience members to contact her at home. Leykis's Brief of Appellee recognizes this distinction between the two claims in stating that her IIED claim was based on Leykis's conduct: "Ms. Carpenter's emotional distress claim was based on the allegation that Mr. Leykis provoked members of his radio listening audience to harass her and make her life 'a living hell' and disclosed her home telephone and fax numbers to facilitate their doing so."

As we will see in discussing what is to be done on remand, that does not mean that what Leykis said "about" her was totally irrelevant to her IIED claim. But it does mean that it was essential that the jury be told accurately what consideration it could give to Leykis's words "to or about" Carpenter in deciding her IIED claim.

Such distinctions were drawn appropriately in Esposito-Hilder v. SFX Broadcasting, Inc.⁴⁶ A radio station there conducted an "Ugliest Bride" contest that disparaged plaintiff's appearance. The court allowed an TIED claim even though it recognized that no defamation claim could stand. It also observed:

We are not unmindful of the constitutional issues implicated in this case and in our resolution thereof. In the quest for the proper accommodation between the right of redress for infliction of injury and the freedoms of speech and expression protected by the Ist Amendment, we have determined that the State's relatively strong interest in compensating individuals for harm outweighs the relatively weak lst Amendment protection to be accorded defendants. It is elementary that not all speech or expression is to be accorded equal 1st Amendment protection; the most jealously protected speech is that which advances the free, uninhibited flow of ideas and opinions on matters of public interest and concern; that which is addressed to matters of private concern, or focuses upon persons who are not "public figures", is less stringently protected [citing Falwell, 485 U.S. 46, 108 S.Ct. 876; Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 LEd.2d 598 (1985); Gertz, 418 U.S. 323, 94 S.Ct. 2997]. Moreover, among the forms of communication, broadcasting enjoys the most limited lst Amendment protection [citing FCC v. Pacifica Found., 438 U.S. 726, 98 S.Ct. 3026, 57 LEd.2d 1073 (1978) [47]

Likewise, there was sufficient evidence to permit a jury to find that Leykis's words in issuing his so-called "call-to-arms" departed from the bounds of protected speech. We assume that a broadcaster seeking to avoid cancellation in a local market may ridicule local crities, because debate about a show's cancellation is a matter of public interest and that those sorts of words are therefore protected at least qualifiedly by the First Amendment. But Leykis did not stop after speaking words that ridiculed or humiliated the person he claimed he thought responsible for the show's cancellation in Juneau. A reasonable jury could permissibly find that his "call-to-arms" words were "extreme and outrageous" within the meaning of the instruction defining "extreme and outrageous" conduct, because it could permissibly find that he intended those words to provoke listeners to harass her. We also note that his words were devoid of any express or implicit message that a jury might deem an attempt to persuade Carpenter, except perhaps out of fear of harassment, to withdraw her objections to broadcasting the show in Juneau.

We are unconvinced that submitting an IIED claim to a jury in such a case will unduly chill protected speech. To recover for intentional infliction of emotional distress, an IIED claimant must prove that there was "extreme and outrageous conduct" that intentionally or recklessly inflicted severe emotional distress.⁴⁸ As the jury was instructed here, conduct gives rise to an IIED claim only if it is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." ⁴⁹ Therefore, as the jury was also instructed, "mere insults, indignities, threats, annoyances, petty oppressions or other trivialities" cannot form the basis of an IIED claim.⁵⁰ We have previously noted, and the jury was instructed here, that even harmful conduct "characterized by 'malice'" is insufficient to make out an IIED claim if the conduct is not "extreme and outrageous." ⁵¹ An IIED claim is therefore arguably no easier to prove than a defamation claim, even a defamation claim that must satisfy the "actual malice" standard. In addition, because IIED requires proof of an intentional or reckless mental state, an TIED plaintiff must show that "the defendant acted in deliberate disregard of a high degree of probability that the emotional distress will follow." ⁵²

IIED claims must also satisfy other hurdles beyond those applicable to defamation claims. Injury is presumed from the fact of publication under defamation law.⁵³ In comparison, an IIED plaintiff must prove that she suffered severe emotional distress,⁵⁴ i.e., "distress of such substantial quality or enduring quantity that no reasonable person in a civilized society should be expected to endure it." ⁵⁵ The requirements for an IIED claim are therefore inherently protective of most conduct; liability is allowed only if intentional or reckless conduct is extreme and outrageous and causes severe emotional distress. Claiming intentional infliction of emotional distress is consequently not a functional means of circumventing the restrictions on defamation claims.⁵⁶ This is particularly so since those IIED claims that are mere "clones" of defamation claims-because both turn on the words' falsity-will have to satisfy the actual malice standard if the plaintiff is a public figure or the speech concerns a matter of public interest.⁵⁷

Finally, we are also confident that our trial courts can craft instructions that tell juries considering IIED claims how to distinguish between speech that can permissibly be the basis for finding outrageous conduct and speech that is protected. Even speech that relates to a matter of public interest loses its protection and can give rise to an IIED claim if, in addition to meeting the other requirements for an IED claim, it is uttered with an intent merely to harass and with no intent to persuade, inform, or communicate.

So far, we have focused on state law. Because Leykis claims Carpenter is a limited purpose public figure under federal law, we must consider whether permitting the IED claim to go forward may be contrary to the First Amendment.⁵⁸ We therefore consider whether the limitations applicable to Carpenter's IIED claim satisfy federal law.

The dissent characterizes Leykis's speech as opinion statements. Dissent at 79. Certainly some of Leykis's words purporting to describe Carpenter consisted of opinion statements. As we have recognized, those words cannot be the basis for defamation or IIED claims. But the dissent's characterization fails to recognize that jurors might fairly find that other words Leykis spoke or allowed to be broadcast were not statements expressing opinions, but statements intended to harass. As discussed above, the heightened intent we require here prevents the IIED claim from chilling protected speech, because we distinguish unprotected speech from speech expressing opinions or addressing matters of public concern. Even if the two types of speech are uttered contemporaneously, permitting a claim as to the unprotected speech will not chill protected speech. A speaker is not privileged to speak with an intent to harass even if she has just commented on important public issues.

Is harassing speech of the kind de-seribed above unprotected under federal law? Four kinds of speech have been recognized to date by the United States Supreme Court as wholly unprotected: obscenity,⁵⁹ fighting words,⁶⁰ true threats,⁶¹ and words that create a "clear and present danger" ⁶² of "imminent lawless action." ⁶³ Defamatory falsehood is also unprotected as to private figures, and is only protected as to public figures absent actual malice.⁶⁴ Leykis's comments do not fit into any of the first four categories, nor are they actionable as defamatory. But these five categories are useful guideposts to mark the boundary between words that comprise protected speech and words that comprise unprotected speech. With the possible exception of obscenity, words falling into one of the five categories are arguably unprotected speech not because of their informative content, but because they do more than merely disseminate information. They instead have an operative effect that would be actionable, and in some cases criminally punishable, whether that effect was accomplished by word or deed.

Thus, uttering fighting words has the same impact as striking the first blow in an affray; uttering true threats is a form of assault that is purely verbal; and creating a clear and present danger of imminent lawless action is the verbal form of starting a riot or insurrection. Defamation requires damage to another's reputation, a legally protected interest.⁶⁵ The tort of IIED protects one's interest in her physical and psychological integrity, a different legally protected interest.⁶⁶

The United States Supreme Court dealt with the issue of harassment when it upheld an ordinance banning residential picketing.⁶⁷ In that case and several others, the Court expressed a special solicitude for the home, holding that "[olue important aspect of residential privacy is protection of the unwilling listener. Although in many locations, we expect individuals simply to avoid speech they do not want to hear, [citations omitted] the home is different." ⁶⁸ The Court concluded, "(there simply is no right to force speech into the home of an unwilling listener."⁶⁹ Here, Carpenter claimed that her home telephone and fax numbers were disseminated.⁷⁰

Decisions of the federal courts of appeals have held or recognized that telephonic harassment-whether effected by the conduct of making a telephone call with the intent to harass and hanging up or saying nothing, or by speaking to the viectim-may be criminally punished.⁷¹ These opinions suggest that a law must cover both harassing speech and conduct to withstand constitutional serutiny. The tort of IIED clearly pertains to both speech and conduct, and our ruling is consistent with the D.C. Circuit's statement in United States v. Popa, that harassing speech made with no intent to contribute to the "public or political discourse" may be criminally punished.⁷²

We therefore conclude that our holding here is consistent with current First Amendment precedent.

4. Effect of Instruction No. 17

Instruction No. 18 properly instructed the jury on the elements of an IIED claim. But the jury was not informed that Instruction No. 17 did not apply to Carpenter's claim that Leykis's conduct was outrageous, or that in considering the IIED claim the jury might or should distinguish between his merely derogatory words about Carpenter and his words that arguably were intended to invite harassment. In essence Leykis argued that everything he said was protected "speech," and that Special Interrogatory 1 used "speech" as a synonym for conduct or acts "intended to provoke a hostile reaction." Special Interrogatory 1 similarly treated the claim of provoking a hostile reaction as falling within paragraph (1) (the "hostile reaction" exeeption) of Instruction No. 17. Special Interrogatory 2 likewise equated the conduct of disclosing private factual information with the other exception, contained in paragraph (2) of Jury Instruction No. 17. Because the IIED claim arose out of words that Leykis spoke or allowed to be spoken on the air and because those words were "to or about" Carpenter, the jury was unable to consider the IIED claim without applying Instruction No. 17.

Leykis argues that Instruction No. 17 correctly stated the law and did not prejudice the jury's consideration of the IIED claim. We are unconvinced that the jury must have understood that Instruction No. 17 did not apply to the IIED claim. Given the breadth of Instruction No. 17, it is probable the jury thought it did apply to that claim.

We are also unconvinced that Carpenter, to prevail on her IIED claim, should have been required to prove that Leykis's speech fell under one of the two categories of unprotected speech described in Instruction No. 17. Instruction No. 17s "hostile reaction" exception restates the classic "fighting words" exception.⁷³ But conduct consisting of speech can be found to be outrageous if a jury finds that the speaker intended to harass by provoking a widespread audience to react with hostility toward the target of humiliating and demeaning comments. A jury could reasonably determine that Leykis encouraged his listeners to be angry with Carpenter and to contact her and harass her. There is no reason why an IIED plaintiff under such cireumstances must prove that there is in fact a clear and present danger of immediate violence; so long as Leykis acted with the requisite intent to harass, it is enough that a reasonable person could think that his comments were likely to prompt listeners to contact or communicate with Carpenter in a hostile fashion, thus accomplishing his objective. In short, the "hostile reaction" exception did not accurately describe Carpenter's IIED claim, and made it more difficult for her to prevail on that claim. The instruction's exception for publication of private factual information was equally inapplicable, and equally potentially prejudicial.

There is no basis for thinking the verdict would have been the same if it had been clear to the jury that Carpenter's IIED claim only had to satisfy Instruction No. 18 and did not also have to satisfy Instruction No. 17, at least as to that part of the IIED claim based on broadcasting the "call to arms." The evidence fairly described in a manner favoring Carpenter would have permitted reasonable jurors to find that Leykis's conduct was extreme and outrageous. In allowing the IIED issue to go to the jury, the trial court apparently assessed the evidence the same way, even though the trial court had post-trial qualms about the claim.

Furthermore, as Carpenter argues, the jury's answers to the special verdict form may imply that Instruction No. 17 and Special Interrogatory 1 actually affected the IIED verdict. In answering Special Verdict Form Question (11), the jury found by clear and convincing evidence that Leykis's conduct was "outrageous and thus subject to an award of punitive damages." But in answering Special Verdict Form Question (10) the jury found that Leykis had no responsibility for the spoliation of the July 24 tape. Taken together, these answers may indicate that the jury found that Leykis's on-air conduct was outrageous. This in turn may indicate that the jury rejected Carpenter's IIED claim only because his conduct did not satisfy the "immediate violence" element that was discussed in Instruction No. 17, expressly required by Special Interrogatory 1, and impliedly required by Special Verdict Form Question (1).

We therefore hold that Instruction No. 17 potentially prevented the jury from giving fair consideration to Carpenter's IIED claim. Remand for a new trial on the IIED claim is consequently necessary. The jury on remand should consider whether Leykis's conduct, when viewed in its entirety: "(1) was extreme and outrageous, (2) was intentional or reckless, and (8) caused [Carpenter] severe emotional distress." ⁷⁴

5. Instructions on Remand

Conduct in broadcasting the "call to arms" and encouraging listeners to take harassing action against Carpenter was not protected speech and may be the basis for IIED lHability. Nonetheless, some of Leykis's comments about Carpenter and her actions in trying to have his show taken off the air in Juneau cannot be the sole basis for her IIED claim. There are two reasons why: First, the derogatory comments are entitled to some speech protections because debate about whether a nationally broadcast radio show should no longer be aired in Juneau is potentially a matter of public importance in Alaska. Offensive as the derogatory comments about Carpenter would be to persons of normal sensibilities, they arguably challenge the credibility of the person Leykis identified as being responsible for the cancellation. They attacked the wisdom and need for cancellation by attacking that person and her values. Under Alaska law, therefore, they addressed a matter of public interest and are qualifiedly privileged.⁷⁵ They consequently cannot themselves be the sole basis for her IIED claim unless Leykis abused the privilege.⁷⁶ Second, to the extent the derogatory words were arguably germane to the show's cancellation, a topic of public interest, speaking them cannot be considered outrageous conduct.

But the derogatory comments remain potentially relevant to Carpenter's IIED claim. As to that claim, the jury on remand may consider how Leykis's derogatory comments bore on whether it was extreme and outrageous to encourage listeners to contact Carpenter or harass her. It might think his comments were intended to incite listeners to act on his arguable invitation to take harassing action against her and increased the foreseeability and likelihood that some would do so. In this, the comments bear on whether Leykis acted with the mental state required for an IIED claim. Finally, the words may also be relevant to the question whether Carpenter suffered severe emotional distress.

Instructions on remand should therefore distinguish between those aspects of the July 24 broadcast that may not be the basis for an IIED claim and those that may. We will not try to draw that distinction here. It is fact-intensive and the trial court is in the best position to assess the words' probative value and the potential for undue prejudice. Moreover, the parties have not really tried to distinguish between comments that might legitimately be the basis for finding outrageous conduct, comments that may not themselves be the basis for an IIED claim but may nonetheless be relevant to that claim, and any comments that the jury cannot be allowed to consider on the issue of TIED liability. We recognize the potential difficulty of drawing the line accurately. But we are also confidant the trial court will be able to make clear to the jury on remand the extent to which it may or may not consider such comments in deciding the IIED claim.⁷⁷

D. The Superior Court's Refusal To Admit into Evidence Carpenter's Compendium of Broadcast Excerpts and Evidence of Leykis's Salary Was Not an Abuse of Discretion.

Carpenter argues that the trial court abused its discretion in refusing to admit into evidence a one-hour compendium of excerpts from broadcasts of Leykis's show between May 2000 and August 2001. All of the excerpts in the compendium were from shows broadcast after the July 24, 1998 program at issue. The compendium consists of segments from twenty-four taped broadcasts.

Carpenter contends that the exhibit "established that Leykis intentionally and routinely denigrated and attacked women." She asserts that the compendium demonstrates that Leykis intended to inflict emotional distress on Carpenter and that he intentionally disseminated Carpenter's personal information. She argues that the broadcasts establish Leykis's intent to injure her by revealing his antipathy toward women and, by extension, her.

The trial court refused to admit the entire compendium. It ruled that while the compendium might tend to show Leykis's attitudes toward women, its prejudicial effect outweighed its probative value.

We review evidentiary rulings for abuse of discretion, although whether the trial court applied the correct legal standard presents a question of law that we review de novo.⁷⁸

Alaska Rule of Evidence 408 permits exclusion of relevant evidence if its probative value is outweighed by the danger of unfair prejudice. Evidence that Leykis hated wom en may lend support to Carpenter's claim that Leykis intentionally or recklessly caused her to suffer emotional distress, but its probative value is slight. The prejudicial effect, on the other hand, is potentially great. As the trial court pointed out, the compendium included distasteful and offensive remarks that were likely to prejudice the jury against Leykis, particularly because it was composed of "snippets" (as the trial court characterized them) taken out of context. The court did not preclude Carpenter from playing particular passages to impeach Leykis if he denied ever having said particular things or ever having acted in a particular fashion while broadcasting. We conclude that the trial court did not abuse its discretion in denying admission of the entire compendium.

Carpenter also argues that the trial court's refusal to allow cross-examination of Leykis on the terms and amount of his annual compensation as host of the show was an abuse of discretion. The trial court granted Leykis's motion for a protective order because the evidence was not relevant to the core issues of the case:

At best, the fact that Mr. Leykis receives compensation for his work is relevant to show that he wants to go on making a salary. In contrast, the Leykis compensation could be misused or misunderstood by the jury as a potential yardstick for damages. In this particular case, there is already risk that the jury could impose liability based on their dislike of the content of the radio show in general as opposed to determining the narrow liability issues presented. 'The probative value of this salary information is outweighed by the potential for undue prejudice.

Carpenter has not persuaded us that the trial court abused its discretion in granting the protective order.

E. The Superior Court Did Not Err in Denying Westwood One's Motion for a Directed Verdict on the Spoliation of Evidence Claim.

The jury found that Westwood One (but not Leykis) committed the tort of spoliation of evidence by destroying the tape of the show and awarded Carpenter $5,042 in compensatory damages and $150,000 in punitive damages against Westwood One. The act of "-'[slpoliation' is the destruction or alteration of evidence,⁷⁹ or its "intentional concealment ... until it is destroyed by natural causes." ⁸⁰ Although this court has not laid out the exact elements of the spoliation tort, it is clear that a viable underlying cause of action must accompany a spoliation claim,⁸¹ that a plaintiff must show that the spoliation occurred "with the intent to disrupt [the plaintiff's] prospective civil action," ⁸² and that the spoliation must have prejudiced the prosecution of the action.⁸³ Westwood One argues that it should have received a directed verdict on the spoliation claim because there was no viable underlying cause of action and because there was insufficient evidence of intent.

In reviewing a trial court's denial of a motion for directed verdict, we "determine whether the evidence, when viewed in the Tight most favorable to the non-moving party, is such that reasonable persons could not differ in their judgment as to the facts." ⁸⁴ "'If there is room for diversity of opinion among reasonable people, the question is one for the jury.) " ⁸⁵

1. The IED claim was viable.

"An action based on the tort of spoliation is meritless unless it can be shown that a party's underlying cause of action has been prejudiced by the spoliation.... Therefore, in order for [a plaintiff] to prevail on [her] spoliation claim, [her] underlying cause of action ... must be viable." ⁸⁶ We have not articulated what is required for a cause of action to be considered "viable" in this context. Only once have we encountered the "viability" element of the claim, in Estate of Day v. Willis.⁸⁷ We there determined that the underlying claim was not viable because it relied on a duty that we concluded did not exist.⁸⁸ Because a jury could reasonably find that the uncontested evidence of Leykis's conduct satisfies the elements of an IIED claim, that claim was viable.

Carpenter's intentional infliction of emotional distress claim had three elements. She was required to prove that Leykis's broadcast "(1) was extreme and outrageous, (2) was intentional or reckless, and (8) caused [Carpenter] severe emotional distress." ⁸⁹ Westwood One challenges only the first element. Leykis's action was sufficiently outrageous to make out an IIED claim if it was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." ⁹⁰ Although "mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities" cannot be the basis of an IIED claim,⁹¹ a properly instruct, ed jury could find that Leykis's conduct discussed above in Part IILC was sufficiently outrageous for IIED liability. Similarly, a jury could find that it was foreseeable that a citizen, allegedly targeted and humiliated by Leykis on national radio before admiring listeners who seemed predictably inflamed by his comments, would suffer emotional distress upon realizing that Leykis had probably caused thousands of strangers to loathe her and that some of them might act on his seeming invitation to harass and confront her.

2. There was sufficient evidence of Westwood One's intent to disrupt Carpenter's claim.

A reasonable jury could find that Westwood One spoiled the tape with the "intent to disrupt the underlying litigation." ⁹² Attorney Jim Douglas's letter to KJNO and Westwood One informed the company of the potential for legal action. West-wood One was thereafter on notice of the potential claim.⁹³ If credited, there was testimony that implied that the tape was handed over to the legal department. The evidence could therefore establish the requisite intent.⁹⁴ It was not error to submit the claim to the jury.

F. The Punitive Damages Award for the Spoliation Claim Was Not Excessive.

Westwood One challenges the $150,000 punitive damages award, claiming it is "grossly excessive." We "review de novo the question of whether punitive damages are grossly excessive and thus unconstitutional under the due process clause of the Fourteenth Amendment." ⁹⁵

Westwood One argues that the award is outside the vague boundaries set out by the United States Supreme Court in BMW of North America, Inc. v. Gore⁹⁶ and State Farm Mutual Automobile Insurance Co. v. Campbell.⁹⁷ These cases hold that a "grossly excessive" punitive damages award violates the Due Process Clause.⁹⁸ Gore provides three "guideposts" for determining when an award is unconstitutional: (1) the "degree of reprehensibility" of the tortious conduct; (2) "the disparity between the harm or potential harm suffered by [the plaintiff] and [the] punitive damages award"; and (8) "the difference between [the punitive damages award] and the civil penalties authorized or imposed in comparable cases." ⁹⁹

We do not find that the first factor-reprehensibility-is met.¹⁰⁰ The next factor is the ratio between the punitive damages award and the harm caused by the tortious conduct (generally measured by the compensatory damages awarded). While the Supreme Court is reluctant to actually draw a line, it has said that a ratio of four to one is "close to the line" of constitutionality.¹⁰¹ The ratio between Carpenter's punitive damages award of $150,000 and her compensatory award of $5,042 is nearly thirty to one, off the allowable scale. Nonetheless, the relatively low compensable damages on the spoliation claim would potentially justify a high ratio.

The third factor is the difference between the punitive damages award and the civil penalties authorized or imposed in comparable cases. Carpenter argues that a comparison between the punitive damages award and the eriminal penalty for evidence tampering under AS 11.56.610(a)(1) supports the constitutionality of the award. While Westwood One correctly points out that it probably could not have been convicted of tampering on such limited evidence of intent, the Supreme Court's comparison between punitive damages and statutory penalties has not depended on a finding that the exact conduct subject to punitive damages would be subject to the other penalties. Instead, the Supreme Court has considered the penalties "imposed in comparable cases." ¹⁰² Similarly, the Supreme Court in Pacific Mutual Life Insurance Co. v. Haslip looked to the fines that could be levied for insurance fraud in general, without considering whether the defendant's particular conduct would warrant such a fine.¹⁰³ Thus, it is appropriate to consider the fines for evidence tampering. The fines can be as much as $1,000,000, a figure well above the punitive damages award here.¹⁰⁴ This factor therefore weighs in favor of the constitutionality of the award.

Finally, we note that punitive damages may sometimes be the only appropriate damages recoverable for spoliation, especially when the jury finds no liability for the underlying claims. It is difficult to see how spoliation can cause harm other than by denying the plaintiff the opportunity to fully prosecute the underlying claims. Compensatory damages cannot reflect much besides speculation as to how the underlying elaims would have turned out if the evidence had not been spoiled. Punitive damages, providing retribution and deterrence, are particularly appropriate for this tort.¹⁰⁵ We hold, therefore, that the punitive damages award for Carpenter's spoliation claim was not excessive.

On remand, Carpenter's TIED claim may provide an independent ground for a punitive damages claim. If punitive damages are sought on retrial of that claim, any award must not result in double recovery, i.e., must not twice punish the same defendant for the same conduct.

G. Alaska Statute 09.17.020() Is Constitutional.

Carpenter appeals the superior court's denial of her motion seeking a declaration that AS 09.17.020(J) is unconstitutional. Alaska Statute 09.17.020(J) provides:

If a person receives an award of punitive damages, the court shall require that 50 percent of the award be deposited into the general fund of the state. This subsection does not grant the state the right to file or join a civil action to recover punitive damages.

We review the issue de novo.¹⁰⁶

Carpenter challenges the constitutionality of AS 09.10.020(j) on two grounds. First, she argues that it violates the separation of powers doctrine. She theorizes that the legislature exceeds the power granted it under the Alaska Constitution when it compels a judge to issue a judgment that contradicts a reasonable jury verdict. She argues that the content of a final judgment is the exclusive concern of the courts.

We addressed a similar issue in Evans ex rel. Kutch v. State, in which we held that the statutory caps on noneconomic and punitive damages did not amount to a remittitur that violated the separation of powers doctrine.¹⁰⁷ Although the dispositional opinion's separation of powers analysis did not discuss the validity of the allocation statute, we adopt that analysis today in rejecting Carpenter's separation of powers challenge to AS 09.10.020(). In Evans, the dispositional opinion reasoned that because they applied generally to all cases and were not case- or fact-specific, the damage caps did not amount to a remittitur.¹⁰⁸ The dispositional opinion concluded that the damages caps therefore did not violate the separation of powers, and stated that "the power of the legislature to modify or abolish the common law 'necessarily includes the power to set reasonable limits on recoverable damages in causes of action the legislature chooses to recognize.' "¹⁰⁹

Likewise, it is within the legislature's power to mandate the award of a portion of the punitive damages to the state. Just as the legislature may require the trial court to cap the jury's damages awards, it may require the court to allocate half of the punitive damages award to the state.

Carpenter next argues that AS 09.10.020(j) results in an unconstitutional taking.¹¹⁰ We rejected an identical argument in Reust v. Alaska Petroleum Contractors, Inc. ¹¹¹ We there held that an unlitigated claim does not become "property" until after it accrues.¹¹² Because claims are defined by the law that exists when they accrue, any claim accruing after the August 7, 1997 effective date of AS 09.17.020(J) may constitution ally be limited by the terms of the statute; here, the claim is limited to one-half of any punitive damages award.¹¹³ We stated in Reust that parties whose claims accrued after the effective date of the allocation statute cannot have a reasonable expectation of receiving more than half of their punitive damages award.¹¹⁴

Carpenter's claim acerued on July 24, 1998, nearly a year after AS 09.17.020(j) became effective. Her claim that the statute works an unconstitutional taking therefore fails.

H. Pro Rata Attorney's Fees Should Be Deducted from the State's Fifty Percent Share of the Punitive Damages Award.

Carpenter's contingent fee agreement required her to pay forty percent of her punitive damages award to her attorney. The state argues that it was error for the superior court to deduct a pro rata share of Carpenter's contingent fee from its portion of the punitive damages award. The state argues that the language and legislative history of AS 09.17.020(J) and AS 09.60.080 support its position.¹¹⁵ Alaska Statute 09.60.080 provides:

If an attorney contracts for or collects a contingency fee in connection with an action for personal injury, death, or property damage and the damages awarded by a court or jury include an award of punitive damages, the contingent fee due the attorney shall be calculated before that portion of punitive damages due to the state under AS 09.17.020(j) has been deducted from the total award of damages.

The state raises arguments similar to those it raised in Anderson II. In that case, we unanimously held that the statute requires that the superior court deduct pro rata the contingent fee from the state's portion of the punitive damages award.¹¹⁶ Although section .080 only directly addresses how fees are to be "calculated," we construed the language of the section to "impl[y] that half of the calculated fee should be deducted from the portion of damages due the state." ¹¹⁷ We explained:

Section .080 clearly is concerned with when the calculation of fees takes place, yet timing of the calculation is unimportant unless a deduction is meant to occur. Otherwise calculation of fees would be just as appropriate after the state's portion was deducted, so long as it was clear that the fees should be based on the entirety of the award. Further, if section .080 means that no deduction for fees can be taken from the state's share, its purpose would be to ensure full compensation of plaintiffs' attorneys while imposing a double burden on their clients. This seems like an unlikely objective.[118]

We determined that the statute's legislative history supported our interpretation.¹¹⁹ An early version of the bill that became the Tort Reform Act of 1997 provided that "the contingent fee due the attorney shall be calculated after that portion of punitive dam ages due the state under [AS 09.17.020() ] has been deducted from the total award of damages." ¹²⁰ We concluded that a later amendment that changed the word "after" to "before" "was meant to require the state to pay its share of a plaintiff's attorney's contingent fee." ¹²¹

The state also argues that the House of Representatives' rejection of a proposed amendment that would have allocated punitive damages to the state only after payment of all costs and fees incurred in obtaining the award supports its position. It points to House Majority Leader Brian Porter's statement that the amendment "was determined to be unacceptable in the main, because [its] punitive damages section ... removed the disincentive to settle found in returning a full 50% of these fines to the state."¹²² We addressed that argument in Anderson II, explaining that it was more likely that the reference to "'a full fifty percent of these fines is to the fact that under the amendment the state would only receive a graduated percentage of punitive damages awards, up to forty percent for awards greater than $10 million, rather than fifty percent of any punitive damages award no matter what its size."¹²³ Because Anderson II squarely resolved the issue, we conclude that the superior court did not err by deducting a pro rata share of Carpenter's contingent fee from the state's portion of Carpenter's punitive damages award.

I. Pro Rata Costs Incurred in Obtaining the Punitive Damages Award Should Be Deducted from the State's Fifty Percent Share.

The superior court declined to deduct a pro rata share of Carpenter's costs from the state's portion of her punitive damages award. Carpenter argues that the phrase "contingent fee" as used in AS 09.60.080 includes costs and expenses. The state challenges Carpenter's interpretation of the statute, pointing to a rejected amendment package to the bill that became the Tort Reform Act of 1997. The amendment explicitly required payment of both costs and fees before calculation of the state's share of the award. It provided: "All amounts to State, after payment of all costs and fees incurred in connection with securing the award." ¹²⁴ The state argues that the deletion of any reference to costs in the final version of the bill implies that only fees are deducted from the state's share.¹²⁵ As Anderson II noted, however, the amendment package covered many subjects,¹²⁶ precluding us from inferring that the deletion indicates a legislative intention to prevent pro rata deduction of costs from the state's portion of punitive damages.

Because the statutory language is ambiguous, we apply equitable considerations to determine whether to apply a pro rata deduction of costs to the state's share of the award.¹²⁷ If the state is not required to pay its pro rata share of the litigation costs, it effectively receives the windfall of a judgment in its favor without incurring any costs. In order to ensure that the state is not unjustly enriched at the expense of litigants, we read AS 09.60.080 to require a pro rata deduction of costs from the state's share of the punitive damages award.

The superior court found that it was unable to differentiate between Carpenter's costs attributable to her punitive damages award and those costs associated with her unsuccessful claims. If Carpenter prevails on her IIED claim on remand and additional punitive damages are awarded, the superior court may find it easier to make that determination. If not, the court should apply to Carpenter's total costs application a straight ratio of Carpenter's compensatory damages award to her punitive damages award.

J. Whether the Superior Court Abused Its Discretion in Refusing To Deem Leykis a Prevailing Party Is Not Yet Determinable.

Under Alaska Rule of Civil Procedure 82(a), a prevailing party "shall be awarded attorney's fees." The superior court ordered the parties to bear their own costs and fees. Leykis appeals this order, arguing that because he was not found liable for any claim, he was a prevailing party and should receive a fee award. We need not decide this issue now, given the possibility Leykis will be found Hable on remand for intentional infliction of emotional distress. If he is found liable, he will not be a prevailing party. If he is not found liable, the trial court should award attorney's fees to Leykis if it can distinguish the fees incurred in defending Leykis from those incurred in defending Westwood One.

IV. CONCLUSION

For these reasons, we AFFIRM the grant of summary judgment dismissing Carpenter's defamation and false light invasion of privacy claims. We also AFFIRM the evi-dentiary rulings and the ruling on Carpenter's proposed Jury Instruction No. 15. We REMAND Carpenter's IIED claim for a new trial. On remand, the jury must be instructed to consider whether Leykis's statements, when examined in their entirety, satisfy the elements of an IIED claim. The trial court should give other instructions to inform the jury how to distinguish between speech-based conduct that could be found to be sufficiently outrageous for IIED lability, and speech that is qualifiedly privileged but that might also be relevant to the IIED claim.

We AFFIRM the denial of Leykis's motion for a directed verdict on Carpenter's spoliation claim. We also AFFIRM the constitutionality of both the punitive damages award and AS 09.17.020(j), and AFFIRM the deduction of a pro rata share of Carpenter's attorney's fees from the state's portion of the punitive damages award, but REMAND for a pro rata reduction of costs from the state's portion of the award.

1

. 47 Code of Federal Regulations 73.1202 (2004) provides that

All written comments and suggestions received from the public by licensees of commercial AM, FM, TV and Class A TV broadcast stations regarding operation of their station shall be maintained in the local public inspection file, unless the letter writer has requested that the letter not be made public or when the licensee feels that it should be excluded from the public inspection file because of the nature of its content, such as a defamatory or obscene letter.

Carpenter has not contended that the public's right to comment about broadcast licensees is relevant to her claims, including her IIED claim.

2

. AS 09.17.020(G).

3

. We refer to Tom Leykis and Westwood One collectively as "Leykis" unless context requires otherwise. On issues that Westwood One alone appeals, we refer to it by name.

4

. Treacy v. Municipality of Anchorage, 91 P.3d 252, 260 (Alaska 2004).

5

. Botelho v. Griffin, 25 P.3d 689, 692 (Alaska 2001).

6

. Alaska Legislative Council v. Knowles, 21 P.3d 367, 370 (Alaska 2001).

7

. French v. Jadon Inc., 911 P.2d 20, 32 (Alaska 1996); see also Restatement (SEcomp) or Torts § 558 (1977).

8

. Briggs v. Newton, 984 P.2d 1113, 1120-21 (Alaska 1999) (quoting French, 911 P.2d at 32); see also RestatemENT (SEcomp) or Torts § 559 (1977).

9

. Restatement (SEeconp) or Torts § 566 cmt. a (1977); see also Milkovich v. Lorain Journal Co., 497 U.S. 1, 13, 110 S.Ct. 2695, 111 LEd.2d 1 (1990).

10

. See Restatement (Second) or Torts § 559 cmt. d (1977).

11

. Sands v. Living Word Fellowship, 34 P.3d 955, 960 (Alaska 2001).

12

. See, eg., Milkovich, 497 U.S. at 19, 110 S.Ct. 2695 (rejecting wholesale defamation exemption of all statements in form of opinion, but holding that "statement on matters of public concern must be provable as false before there can be liability under state defamation law""); see also Sands, 34 P.3d at 960.

13

. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50-51, 108 S.Ct 876, 99 LEd.2d 41 (1988) (quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 503-04, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984)).

14

. Sands, 34 P.3d at 960 (quoting Milkovich, 497 U.S. at 24, 110 S.Ct. 2695 (Brennan, J., dissenting)).

15

. See Wilson v. Grant, 297 N.J.Super. 128, 687 A.2d 1009 (App.Div.1996) (holding radio broadcaster's description of plaintiff as "stalker," "some little weasel," "a vicious swine," "a sick cookie," and "sick, no good, pot smoking, wife beating skunk" was not defamatory).

16

. See, eg., Leidholdt v. L.F.P., Inc., 860 F.2d 890 (9th Cir.1988) (holding article describing Leid-holdt and members of her organization as "pus bloated," "sexually repressed," "[hJating men, hating sex, and hating themselves," and "frustrated group of sexual fascists" was not defamatory).

17

. FCC v. Pacifica Found., 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978).

18

. Id. at 749-51, 98 S.Ct. 3026.

19

. The three prongs of the Miller test are:

(a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole lacks serious literary, artistic, political, or scientific value.

Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) (citation omitted).

20

. Gooding v. Wilson, 405 U.S. 518, 525, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942)).

21

. The Restatement (Second) of Torts provides:

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of privacy, if

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

Restatement (SEconp) or Torts § 652E (1977).

22

. Restatement (SEconp) or Torts § 652E cmt. b (1977).

23

. See Time, Inc. v. Hill, 385 U.S. 374, 384 n. 9, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967).

24

. Id. at 387-88, 87 S.Ct. 534; Flowers v. Carville, 310 F.3d 1118, 1132 (9th Cir.2002) (citing Restatement (SEconp) or Torts § 652E cmt. b (19779).

25

. See White v. Fraternal Order of Police, 909 F.2d 512, 518 (D.C.Cir.1990); Leidholdt v. L.F.P. Inc., 860 F.2d 890, 893 (9th Cir.1988); Rinsley v. Brandt, 700 F.2d 1304, 1307 (10th Cir.1983).

26

. Plaintiff's counsel objected at trial to Instruction No. 17's discussion of speech "intended to provoke a hostile reaction under circumstances where a clear and present danger of immediate violence existed."

27

. He cites Turney v. State, 936 P.2d 533, 541 (Alaska 1997), Marks v. City of Anchorage, 500 P.2d 644, 647 (Alaska 1972), and Anniskette v. State, 489 P.2d 1012, 1013 (Alaska 1971), for the proposition "that speech may be punished only in the most limited circumstances."

28

. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988).

29

. City of Kodiak v. Samaniego, 83 P.3d 1077, 1082 (Alaska 2004).

30

. Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 2001).

31

. Coulson v. Marsh & McLennan, Inc., 973 P.2d 1142, 1150 n. 21 (Alaska 1999) (citations omitted).

32

. Id.

33

. Beck v. State, Dep't of Transp. & Pub. Facilities, 837 P.2d 105, 114 (Alaska 1992); see also State, Dep't of Corr. v. Johnson, 2 P.3d 56, 61 (Alaska 2000) (reversing for new trial where erroneous instruction made verdict for plaintiff more likely).

34

. The dissenting opinion never addresses the adequacy of Instruction No. 17.

35

. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 52-53, 55-56, 108 S.Ct 876, 99 LEd.2d 41 (1988).

36

. Pearson v. Fairbanks Publ'g Co., 413 P.2d 711, 715 (Alaska 1966).

37

. Cf. Falwell, 485 U.S. at 52-53, 55-56, 108 S.Ct. 876 (holding under federal law that public figure claiming IIED based on defamatory nature of speech must prove actual malice).

38

. 485 U.S. 46, 108 S.Ct. 876, 99 LEd.2d 41 (1988).

39. Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S.Ct. 2997, 41 LEd.2d 789 (1974) (emphasis added).