[I]n the district court, Mullin argued that, at least in the First Amendment context, a defamation-by-implication plaintiff must prove the defendant subjectively endorsed or intended the implication in the publication….
The district court agreed with Mullin that the subjective-intent showing … is a required one. Bertrand did not raise a claim of error regarding this aspect of the ruling on appeal but only mentioned it in his reply brief in response to the issues raised by Mullin on cross-appeal. Similarly, Mullin did not heavily rely on this point in his cross-appeal.
We recognize defamation by implication is “an area of law ‘fraught with subtle complexities.’” In light of the absence of thorough briefing on the issue or the necessity that we decide it as a factual matter, we decline to address the subjective-intent requirement in this opinion. Thus, we only consider the implied claim that Bertrand personally sold Rozerem. As above, we decide the case solely on the actual malice ground and express no opinion regarding whether Mullin or any staff of the Iowa Democratic Party subjectively endorsed or intended the implication that Bertrand personally sold or marketed rozerem.