UNPUBLISHED
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`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
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`No. 19-1880
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`KRISTINA G. MCMICHAEL; WILSON MCMICHAEL,
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`JAMES ISLAND CHARTER SCHOOL; CITY OF CHARLESTON; OFFICER
`THEODORE RYAN BROWN, individually, and acting in his Official Capacity,
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`Plaintiff − Appellants,
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`v.
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`Defendant – Appellees.
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`Appeal from the United States District Court for the District of South Carolina, at
`Charleston. Richard Mark Gergel, District Judge. (2:18−cv−00816−RMG)
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`Submitted: November 2, 2020
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`Decided: December 31, 2020
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`Before KING and DIAZ, Circuit Judges, and Stephanie A. GALLAGHER, United States
`District Judge for the District of Maryland, sitting by designation.
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`Affirmed by unpublished opinion. Judge Diaz wrote the opinion, in which Judge King and
`Judge Gallagher joined.
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`William E. Hopkins, Jr., Joseph C. Hopkins, HOPKINS LAW FIRM, LLC, Pawleys Island,
`South Carolina, for Appellants. Christopher T. Dorsel, SENN LEGAL, LLC, Charleston,
`South Carolina; Jonathan J. Anderson, Jonathan L. Anderson, ANDERSON REYNOLDS
`& STEPHENS, LLC, Charleston, South Carolina, for Appellees.
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`Unpublished opinions are not binding precedent in this circuit.
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`DIAZ, Circuit Judge:
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`James Island Charter High School (“JICHS”) terminated Kristina McMichael when
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`it eliminated the finance department where she worked. At JICHS’s principal’s request,
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`Officer Theodore Ryan Brown arranged for continued security to prevent any retaliation
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`by former employees against the school. Brown obtained photos of Kristina and her
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`husband, Wilson McMichael, from the South Carolina Department of Motor Vehicles
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`(“DMV”) so security officers could recognize them if they returned to campus uninvited.
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`The McMichaels sued JICHS, the City of Charleston, South Carolina, and Brown, and the
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`district court granted summary judgment to the Defendants. We affirm.
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`We review a district court’s summary judgment order de novo. Reyazuddin v.
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`I.
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`Montgomery County, 789 F.3d 407, 413 (4th Cir. 2015). In doing so, we apply the same
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`legal standards as the district court, viewing all facts and drawing all reasonable inferences
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`in favor of the non-moving party—in this case, the McMichaels. Dulaney v. Packaging
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`Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012). We do not, however, weigh conflicting
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`evidence or make credibility determinations. Reyazuddin, 789 F.3d at 413. If the
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`nonmoving party can demonstrate the existence of genuine issues of material fact that can
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`only be resolved by a factfinder, those issues must proceed to trial. Id. Genuine questions
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`of material fact exist “where, after reviewing the record as a whole, a court finds that a
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`reasonable jury could return a verdict for the nonmoving party.” Dulaney, 673 F.3d at 330.
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`2
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`II.
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`A.
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`On July 6, 2017, JICHS eliminated its finance department for budgetary reasons and
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`terminated the department’s three employees, including Kristina McMichael. Since it was
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`July, and the students were on summer vacation, JICHS had no regular security staff on
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`campus that day. As a safety precaution, JICHS’s principal, Tim Thorn, asked Brown,
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`JICHS’s school resource officer, to report to campus to supervise the finance department’s
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`termination.1
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`Kristina’s termination letter stated that JICHS would no longer allow her on campus
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`without an appointment and school escort. After she received the letter, she called her
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`husband, Wilson McMichael, to help take her belongings home. Wilson, who wasn’t a
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`school employee, eventually arrived to help his wife clear out her desk. Brown recalled
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`that the McMichaels were “hostile” and “angry” while they were leaving campus. He
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`remembered Kristina being “verbally abusive” to school staff and Wilson saying that the
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`school “would be sorry” for terminating Kristina. J.A. 384:10–387:9.
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`Thorn asked Brown to coordinate off-duty officers to remain at the school for the
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`duration of the summer to guard against any retaliation by angry former employees.
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`Brown testified that, at the time, he wasn’t aware that the McMichaels posed any specific
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`or imminent threat to campus safety, but he also made clear that his “number one job” is
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`1 The McMichaels object to this and other evidence as hearsay. We address their
`objections as necessary below.
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`3
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`to prevent violence at the school and that, “with the trend in workplace violence, you don’t
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`know who is going to do what when you let somebody go.” J.A. 413:3–414:16.
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`Because the off-duty officers were not familiar with the school, its students, or its
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`employees, Brown created an information packet that identified and described individuals
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`not allowed on campus. It summarized the finance department’s elimination, the
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`McMichaels’ response to Kristina’s termination, and the fact that their son T.M. was also
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`banned from campus after his recent expulsion and arrest for marijuana possession. The
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`packet also noted that other “students have disclosed that [T.M.] sells narcotics at JICHS”
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`and that “allegedly [T.M.] in June 2017 attempted to purchase a firearm but due to currently
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`being out on [b]ond for the [marijuana] charges,” the “purchase was denied.” J.A. 144–
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`45.
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`But names and narratives alone wouldn’t give the officers all the information they
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`needed. Brown also included pictures of the McMichaels and the other former finance
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`department employees in the information packet so that the officers could identify them.
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`He obtained each photo (except for T.M’s) from the South Carolina DMV website.2 Brown
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`placed the photos on a desk in the security officers’ makeshift office inside the school.3
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`2 Brown obtained T.M.’s photo from the website of a juvenile detention center.
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`3 The McMichaels argued before the district court that a sign saying “do not let these
`people in” accompanied the photos on the desk. But the district court ruled that only
`inadmissible hearsay supported that claim, whereas admissible evidence showed that no
`such sign existed. The McMichaels don’t dispute that ruling on appeal.
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`4
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`Several days after Kristina’s termination, Marty Monette, JICHS’s facilities
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`director, was repairing an air conditioning unit in the security office when he spotted the
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`photographs. He took a picture of the photos with his phone and sent the picture to his
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`wife, Celeste Monette (also a JICHS employee), and Bill Koll (a former finance department
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`employee). Marty then asked Brown about the pictures, and he explained that they were
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`there so security officers could identify anyone on campus without permission.
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`News of the photographs reached the McMichaels through the gossip grapevine.
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`Marty told Celeste about his conversation with Brown, and then Celeste showed Kristina
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`the picture of the photographs while Celeste and Kristina were out at dinner shortly after
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`Kristina’s termination.
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`B.
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`The operative Second Amended Complaint, which abandoned Kristina’s 18 U.S.C.
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`§ 1983 claim and added Wilson McMichael as a plaintiff, alleges claims against: (1)
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`Brown, JICHS, and the City of Charleston for violating the federal Driver’s Privacy
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`Protection Act; (2) JICHS for defamation; and (3) Brown, JICHS, and the City for invasion
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`of privacy. The Defendants filed separate motions for summary judgment, which the
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`district court granted in full.
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`This appeal followed.
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`5
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`III.
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`A.
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`We begin by addressing the McMichaels’ claim that the Defendants violated the
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`Driver’s Privacy Protection Act when Officer Brown obtained their DMV photos without
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`permission. The Act provides that it “shall be unlawful for any person knowingly to obtain
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`or disclose personal information,” including photographs, “from a motor vehicle record,
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`for any use” that doesn’t fall within one of 14 statutory exceptions.4 18 U.S.C. § 2722(a).
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`The exception relevant to this case appears in 18 U.S.C. § 2721(b)(1), which states that
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`drivers’ “[p]ersonal information” “may be disclosed . . . [f]or use by any government
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`agency, including any court or law enforcement agency, in carrying out its functions, or
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`any private person or entity acting on behalf of a Federal, State, or local agency in carrying
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`out its functions.”
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`The district court found no dispute of material fact that Principal Thorn engaged
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`Brown’s services for a “law enforcement purpose in anticipation of a potential safety
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`threat.” J.A. 585–86. The court also concluded, as a matter of federal law, that Brown’s
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`actions qualified as a “use” of the DMV photos by a law enforcement agency in carrying
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`out the law enforcement “function” of maintaining school safety. J.A. 586–87. Based on
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`those conclusions, the court ruled that a “reasonable factfinder would conclude Defendants
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`did not obtain [the McMichaels’] driver’s license photos in an unpermitted manner under
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`the [Act].” Id.
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`4 Section 2724(a) gives individuals a private right of action under the Act.
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`6
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`The McMichaels argue that the district court made several errors in reaching that
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`conclusion. We address each in turn.
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`1.
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`The McMichaels first contend that Brown wasn’t carrying out the “function” of a
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`law enforcement officer when he obtained the DMV photographs. The Defendants counter
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`that maintaining school safety is a law enforcement function, and that Brown acted to carry
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`out that function. We must therefore determine: (1) whether, as a matter of law,
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`maintaining school safety constitutes a valid law enforcement function under § 2721(b)(1)
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`and (2) if there is any genuine dispute of material fact about whether Brown used the photos
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`to carry out that function.
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`Since the Driver’s Privacy Protection Act doesn’t define the word “function,” we
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`must give it its “ordinary meaning.” See Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560,
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`566 (2012). In this context, the ordinary meaning of “function” is akin to “purpose” or
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`“intended role,” such that we read the statute to allow law enforcement agencies to obtain
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`DMV photos to carry out their purpose or intended role. Function, Oxford English
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`Dictionary
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`(3d
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`ed.
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`2017),
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`https://www.oed.com/view/Entry/75476?rskey=uJR7to&result=1#eid
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`(last
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`visited
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`December 30, 2020) (“An activity or mode of operation that is proper or natural to a person
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`or thing; the purpose or intended role of a thing.”); Function, Merriam-Webster’s
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`Dictionary, https://www.merriam-webster.com/dictionary/function?src=search-dict-hed
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`7
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`(last visited December 30, 2020) (“The action for which a person or thing is specially fitted
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`or used or for which a thing exists.”).
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`While at least one other federal appellate court analyzing the Act has looked to state
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`law to determine the scope of a state agency’s “function,” Rine v. Imagitas, Inc., 590 F.3d
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`1215, 1223 (11th Cir. 2009), it doesn’t matter in this case whether we must consult federal
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`or South Carolina law on the subject. Under either, a law enforcement agency’s purpose
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`or intended role is to maintain public safety. United States v. Chappell, 691 F.3d 388, 399
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`(4th Cir. 2012) (“The police function serves a significant salutary purpose in protecting
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`public safety . . . .”); Arthurs ex rel. Estate of Munn v. Aiken Cty., 525 S.E.2d 542, 548
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`(S.C. Ct. App. 1999), aff’d as modified 551 S.E.2d 579 (S.C. 2001) (describing
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`presumption under South Carolina law that statutes governing the duties of public officials,
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`including police officers, “have the essential purpose of providing for the structure and
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`operation of government or for securing the general welfare and safety of the public.”).
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`Common sense tells us that maintaining safety in the school system is part and parcel of
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`maintaining public safety overall. See News & Observer Publ’g Co. v. Raleigh-Durham
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`Airport Auth., 597 F.3d 570, 580 n.7 (4th Cir. 2010) (“[S]ummary judgment does not
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`require ignoring logic or common sense to favor the nonmoving party.”).
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`The McMichaels’ argument to the contrary misses the mark. They contend that,
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`because Brown was JICHS’s school resource officer during the school year, we should
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`analyze § 2721(b)(1)’s law enforcement exception in this case in tandem with the South
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`8
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`Carolina law that sets out a school resource officer’s duties. That statute states that a school
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`resource officer is:
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`a person who is a sworn law enforcement officer pursuant to the requirements
`of any jurisdiction of this State, who has completed the basic course of
`instruction for School Resource Officers as provided or recognized by the
`National Association of School Resource Officers or the South Carolina
`Criminal Justice Academy, and who is assigned to one or more school
`districts within this State to have as a primary duty the responsibility to act
`as a law enforcement officer, advisor, and teacher for that school district.
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`S.C. Code Ann. § 5-7-12(B). The McMichaels contend that if we read § 2721(b)(1) to
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`cover school resource officers’ actions, we would allow all school advisors or teachers to
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`obtain DMV photos without permission because section 5-7-12 includes “advis[ing]” and
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`“teach[ing]” among school resource officers’ primary duties.
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`That argument misunderstands section 5-7-12. Since the statute’s own terms require
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`that school resource officers act as “law enforcement officers” as well as advisors and
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`teachers, it simply doesn’t apply to any school advisor or teacher. Rather, it applies only
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`to teachers and advisors who are also “sworn law enforcement officers,” have completed
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`the requisite training, and are assigned to a school district to act in part as law enforcement
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`officers. See id. (listing a school resource officer’s duties and required training in the
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`conjunctive). Thus, using section 5-7-12 to color § 2721(b)(1)’s law enforcement
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`exception wouldn’t permit a school’s non-law-enforcement personnel to take advantage of
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`the exception.
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`In short, we agree with the district court’s conclusion that maintaining public and
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`school safety is a valid law enforcement function that justifies access to DMV records.
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`9
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`2.
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`We next consider whether Officer Brown’s actions constituted a “use” of the DMV
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`photos to “carry out” the law enforcement function of maintaining school safety. In Senne
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`v. Village of Palatine, the Seventh Circuit carefully considered how courts should
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`determine whether a defendant used DMV information for a purpose consistent with the
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`Driver’s Privacy Protection Act. 695 F.3d 597, 606 (7th Cir. 2012). The Senne court
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`focused on the words “for use” in § 2721(b)(1) to reason that a defendant falls within the
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`law enforcement exception only if he actually makes use of the information he obtained,
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`uses it “for the identified purpose,” and does not “exceed the scope of the . . . exception.”
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`Id. We agree with our sister circuit’s understanding of the Act’s requirements.
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`It’s undisputed that Brown used the DMV photos. Both sides agree that he printed
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`them, left them on the desk in the school’s security office, and included them in the
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`information packet that he distributed to the off-duty officers.
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`The McMichaels primarily argue that Brown didn’t use the photos for his identified
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`purpose—maintaining school safety—or that if he did, his actions exceeded that purpose.
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`They first assert that, since Brown admitted that the McMichaels likely posed no immediate
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`threat on the day of Kristina’s termination, his use of the DMV photos couldn’t have been
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`related to law enforcement. But the McMichaels cite no authority suggesting that law
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`enforcement officers may act only to address imminent or ongoing emergencies, as
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`opposed to potential future threats. Indeed, while Principal Thorn called Brown to campus
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`on July 6 in part to secure the campus that day, Brown understood Thorn to be equally
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`10
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`concerned with preventing future retaliation from aggrieved former employees and the
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`McMichael family.
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`The McMichaels argue that Thorn’s statements, which Brown relayed in his
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`deposition, constitute inadmissible hearsay. But the material issue here is not whether the
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`McMichaels in fact posed a threat to the school at some point during the summer—it’s
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`whether Thorn’s concerns gave Brown a reason to act to ensure the school’s safety. The
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`Defendants therefore rely on Thorn’s statements for their effect on the listener, not for their
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`truth, and they are admissible for that purpose. Graves v. Lioi, 930 F.3d 307, 325 n.15 (4th
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`Cir. 2019), cert. denied sub nom. Robinson v. Lioi, 140 S. Ct. 1118 (2020) (citing United
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`States v. Safari, 849 F.2d 891, 894 (4th Cir. 1988), for the proposition that “a statement is
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`not hearsay if it is offered . . . to show the effect on the listener”).
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`Thus, Brown’s understanding of the McMichaels’ history and relationship with
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`JICHS support the Defendants’ concern that the McMichaels could have posed a future
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`threat to the school. Kristina told Brown before her termination that her family had “guns
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`in the[ir] house.” J.A. 386:1–6. Brown had also heard that T.M. asked his father to buy
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`him a shotgun because T.M. could no longer legally buy one after his arrest.5 And Brown
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`5 Brown heard this from Celeste Monette, who in turn heard it from Kristina.
`Though that chain of statements may appear at first glance to be triple-hearsay, every link
`is admissible. Celeste’s statement to Brown is admissible for its effect on Brown as the
`listener. Lioi, 930 F.3d at 325 n.15. Kristina’s statement to Celeste is admissible as a
`statement by a party opponent. Fed. R. Evid. 801(d)(2). And T.M.’s request that his father
`buy him a gun isn’t hearsay at all. United States v. Sinclair, 301 F. App’x 251, 253 (4th
`Cir. 2008) (“A question or inquiry is not a statement, and therefore is not hearsay unless it
`can be construed as an intended assertion.”).
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`11
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`knew that JICHS had recently expelled T.M., and heard Wilson threaten that the school
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`would “be sorry” for terminating his wife. J.A. 386:21–387:9.
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`The McMichaels say that Brown wasn’t legitimately concerned about school safety
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`because he never reported any concerns to other law enforcement agencies or opened an
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`official police investigation into the McMichaels. But there’s no evidence that Brown
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`usually took such actions when school-safety concerns arose or that any policy or
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`regulation required him to do so. To the contrary, Brown testified that, while he obtained
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`a DMV photo once before in connection with an official investigation, he has also obtained
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`DMV photos “multiple times” in response to circumstances that didn’t result in criminal
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`charges. J.A. 396:21–397:19. Brown’s failure to open a criminal investigation before
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`obtaining the photos in this case is therefore consistent with his past practice and doesn’t
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`suggest that his concerns were insincere or unfounded. The McMichaels’ speculation that
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`a truly concerned school resource officer would have opened an investigation before
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`obtaining DMV photos can’t stave off summary judgment. See Emmett v. Johnson, 532
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`F.3d 291, 297 (4th Cir. 2008).
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`The McMichaels next argue that the Defendants could not have had any valid safety
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`concern about them in particular because Brown’s information packet also included
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`information about, and photos of, the other two terminated finance department employees.
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`But that evidence is consistent with the Defendants’ position that Brown obtained the
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`photos to identify every individual who wasn’t allowed back on campus. Indeed, the
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`termination letter that all three finance department employees received stated that they no
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`longer had permission to be on campus without an appointment. Similarly, the record
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`reflects that Brown “was told by somebody at the school” that the school had issued a “no
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`trespass” notice to Wilson McMichael.6 The fact that JICHS may have had safety concerns
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`about other individuals as well doesn’t discredit or diminish the school’s concerns about
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`the McMichaels.
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`3.
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`Finally, the McMichaels make a few misguided credibility arguments. They first
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`appear to assert that the district court should have discounted Brown’s testimony based on
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`a years-old, unrelated disciplinary action against him for entering a civilian’s room without
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`permission or a warrant. Brown’s disciplinary history doesn’t help the McMichaels. For
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`one thing, litigants can’t avoid summary judgment by merely calling into question the
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`credibility of witnesses testifying against them—they must introduce some affirmative
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`evidence that creates a genuine factual dispute. Crawford-El v. Britton, 523 U.S. 574, 600
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`(1998) (“[I]f the [moving party] has made a properly supported motion, the [nonmoving
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`party] may not respond simply with general attacks upon the [moving party’s] credibility,
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`but rather must identify affirmative evidence from which a jury could find that the
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`[nonmoving party] has carried his or her burden[.]”). As discussed above, the McMichaels
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`haven’t identified such evidence.
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`For another, the disciplinary report isn’t admissible in the way that the McMichaels
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`rely on it. While parties may dig into a witness’s prior acts for the purpose of establishing
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`6 The McMichaels contend that this statement is hearsay, but it is admissible for its
`effect on Brown, not to show that Wilson actually received a no trespass notice.
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`13
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`his character for truthfulness or untruthfulness, Fed. R. Evid. 608(b), we fail to see what
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`impact Brown’s disciplinary report has on that character. In essence, the McMichaels
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`contend that the district court should have used Brown’s prior conduct to draw an inference
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`that he acted improperly to obtain the DMV photos in this case. But that’s a textbook
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`example of inadmissible “other acts” evidence. Fed. R. Evid. 404(b)(1) (“Evidence of [a]
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`crime, wrong, or [other] act is not admissible to prove a person’s character in order to show
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`that on a particular occasion the person acted in accordance with the character.”).
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`The McMichaels also claim that the district court viewed as less credible Celeste
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`Monette’s testimony that Brown didn’t act to ensure the school’s safety. But even taking
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`Celeste’s testimony at face value, it doesn’t create a factual dispute. Celeste testified that
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`Brown’s use of the photos was offensive and embarrassing, and that other people may have
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`been able to see the photos on the security desk. But those facts don’t contradict Brown’s
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`testimony that he used the photos to help secure the school. Brown’s use of the photos
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`could be related to law enforcement, offensive and embarrassing to the McMichaels, and
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`potentially visible to others all at the same time.
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`In sum, the uncontroverted evidence demonstrates that Brown used the DMV photos
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`for a law enforcement purpose. The district court therefore properly granted summary
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`judgment to the Defendants on the Driver’s Privacy Protection Act claim.
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`B.
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`We next consider the McMichaels’ claim that JICHS defamed them. To prove a
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`defamation claim in South Carolina, a plaintiff must demonstrate: “(1) a false and
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`defamatory statement was [published]; (2) the unprivileged publication was made to a third
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`party; (3) the publisher was at fault; and (4) either actionability of the statement irrespective
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`of special harm or the existence of special harm caused by the publication.” Argoe v. Three
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`Rivers Behavioral Health, L.L.C., 710 S.E.2d 67, 74 (S.C. 2011). South Carolina courts
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`have also long held that a plaintiff can’t prove a defamation claim without evidence that
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`the defamatory statement harmed the plaintiff’s reputation in her community. Capps v.
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`Watts, 246 S.E.2d 606, 610 (S.C. 1978) (“The very essence of an action for defamation is
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`that the plaintiff has suffered damage as a result of the injurious effect of the defamation
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`upon his reputation.”); Argoe, 710 S.E.2d at 74 (“The publication of a statement is
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`defamatory if it tends to harm the reputation of another as to lower him in the estimation
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`of the community or to deter third persons from associating or dealing with him.”).
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`The district court rejected this claim primarily because the McMichaels submitted
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`no evidence showing that JICHS published any defamatory statement. On appeal, the
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`McMichaels argue that JICHS defamed them per se and through insinuation. We disagree.
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`Statements may be defamatory per se when they “charge the plaintiff with one of
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`five types of acts or characteristics: (1) commission of a crime of moral turpitude; (2)
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`contraction of a loathsome disease; (3) adultery; (4) unchastity; or (5) unfitness in one’s
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`business or profession.” Fountain v. First Reliance Bank, 730 S.E.2d 305, 309 (S.C. 2012).
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`To qualify as defamation per se, the “defamatory meaning of a message or statement” must
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`be “obvious on the face of the statement.” Holtzscheiter v. Thomson Newspapers, Inc.,
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`506 S.E.2d 497, 501 (S.C. 1998) (using as an example of a defamatory per se statement
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`“[Person] A is a thief.”).
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`15
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`It isn’t entirely clear what statements the McMichaels contend are defamatory per
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`se. To the extent they argue that JICHS’s termination letter addressed to Kristina was
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`defamatory, their argument fails because that letter doesn’t state that Kristina is unfit for
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`her profession—it says that the school has eliminated her position for budgetary reasons.
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`Moreover, there’s no evidence in the record to suggest that JICHS’s stated reason for
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`terminating Kristina was untrue, and true statements can’t defame. A Fisherman’s Best,
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`Inc. v. Recreational Fishing All., 310 F.3d 183, 196 (4th Cir. 2002) (citing WeSav Fin.
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`Corp. v. Lingefelt, 450 S.E.2d 580, 582 (S.C. 1994)).
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`The McMichaels cite Johnson v. Dillard’s Inc., 2007 WL 2792232, at *18 (D.S.C.
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`Sept. 24, 2007), for the proposition that “it is possible for an act of termination to be
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`actionable defamation under South Carolina law.” Appellants’ Br. at 22. That may be true
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`as a general statement, but the McMichaels both ignore the Johnson court’s ultimate
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`decision and extend that court’s reasoning too far.
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`The Johnson court granted summary judgment against the plaintiff on her
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`defamation claim when the facts showed that a uniformed officer escorted her out of a retail
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`store after her termination. Johnson, 2007 WL 2792232 at *18. While the court recognized
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`that escorting an employee off the premises can constitute a defamatory statement when
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`additional evidence shows that other people thought the employee was terminated for some
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`“type of criminal or unlawful activity,” the court found that the plaintiff had presented no
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`such evidence. Id.
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`The same is true here. Officer Brown escorted Kristina off campus when JICHS
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`terminated her, and there’s no admissible evidence that her former colleagues thought that
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`JICHS did so because of any criminal or unlawful conduct. To the contrary, as discussed
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`above, Kristina’s termination letter plainly states that JICHS eliminated her position for
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`budgetary reasons, and the district court properly ruled inadmissible the McMichaels’
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`hearsay evidence about her former colleagues’ opinions of her termination.
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`Moreover, after distinguishing the plaintiff’s circumstances from cases in which
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`South Carolina courts have let juries decide defamation claims, the Johnson court cited
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`several cases to support its conclusion that, “where a terminated employee was merely
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`walked off the premises . . . by a uniformed officer, the [employer’s] conduct was not
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`defamatory as a matter of law.” Id. Johnson therefore helps JICHS more than the
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`McMichaels.
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`To the extent that the McMichaels claim that Brown’s placement of their photos on
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`the security desk was a defamatory “statement,” it would not be defamation per se because
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`its meaning is far from obvious. Even if it could mean that JICHS thought that Kristina
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`was unfit for her profession, it could also mean any number of other things, including what
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`the JICHS argues it means: that security officers simply needed the McMichaels’ pictures
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`to identify them in the future.7
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`7 The McMichaels also argue in passing that Kristina’s termination and Brown’s
`placement of the DMV photos on the security desk constituted defamation per se because,
`through those events, Defendants conveyed that Kristina and Wilson had “done something
`illegal or committed a crime.” Appellants’ Br. at 23. Even if the Defendants’ conduct
`could be interpreted as a statement that the McMichaels committed a crime, their argument
`fails because, as discussed above, the Defendants’ conduct could also reasonably mean
`other things. Moreover, statements accusing a plaintiff of having committed a crime are
`defamatory per se only when the crime charged is one of “moral turpitude.” Fountain,
`730 S.E.2d at 309; see also Green v. Hewett, 407 S.E.2d 651, 652 (S.C. 1991) (“Crimes of
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`Nor did the combination of JICHS’s termination letter and Brown’s actions
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`constitute defamation through insinuation. An insinuation can be defamatory if “it is false
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`and malicious,” its “meaning is plain,” Eubanks v. Smith, 354 S.E.2d 898, 901 (S.C. 1987),
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`and it harms the plaintiff’s reputation, see Kennedy v. Richland Cty. Sch. Dist. Two, 833
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`S.E.2d 414, 423 (S.C. Ct. App. 2019), petitions for rev. dismissed No. 5669, 2020 S.C.
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`LEXIS 34 (Mar. 9, 2020) (explaining the reputational harm requirement in a case involving
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`defamation through insinuation).
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`Kennedy, on which the McMichaels rely heavily, illustrates why the defamation-by-
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`insinuation claim alleged here fails. The Kennedy court held that an intra-school-district
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`email about a security guard created a triable issue of material fact on his defamation claim,
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`even though no one outside the district saw the email. 833 S.E.2d at 423–24. But, contrary
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`to this case, the Kennedy plaintiff presented substantial evidence that the email harmed his
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`reputation. Another security guard testified that the insinuation in the email—that the
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`plaintiff could no longer be trusted with keys to the school—rendered him “worthless” as
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`a security guard and may have cost him a promotion for which he was otherwise eligible.
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`Id. at 423, 423 n.7. And the plaintiff “demonstrated his reputation in his community was
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`damaged when he testified that his role as a mentor in his church significantly decreased
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`following the publication of the email.” Id. at 423.
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`moral turpitude involve acts of baseness, vileness, or depravity in private and social duties
`. . . contrary to the customary and accepted rule of right and duty between man and man.”).
`The McMichaels do not allege the crime that they believe the Defendants accused them of,
`much less show that it is one of moral turpitude.
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`There’s no such evidence in the record here. The McMichaels point to
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`conversations during social gatherings in which they, the Monettes, and another part-time
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`school employee “laughed” and “joked” about the McMichaels being “James Island’s
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`[M]ost [W]anted.” J.A. 432:9–433:2, 434:20–435:6, 443:25–444:11, 449:18–450:2. But
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`no reasonable juror would compare jokes between friends to the Kennedy plaintiff’s
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`reputational harm.
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`The McMichaels also point to statements about the photos made to Kristina by other
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`school staff outside of school. According to Kristina, several staff members mentioned
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`that her photo was in the office and said things like “I can’t believe they did that to you”
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`and “they are making you out to be a monster.” But the district court ruled that these
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`statements were inadmissible hearsay and the McMichaels don’t dispute that ruling on
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`appeal—they simply reference the statements again without addressing their admissibility.
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`Even if the statements were admissible, however, they don’t show any damage to Kristina’s
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`reputation. If anything, they show that members of her community were sympathetic to
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`her position. That stands in contrast to Kennedy, where members of the plaintiff’s
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`community became suspicious of him because they were concerned that he was a thief.
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`In sum, the McMichaels haven’t demonstrated that any genuine dispute of material
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`fact exists as to their claim for defamation. The district court therefore correc