Opinion defense remains a strong tool in defeating defamation claims

Recent decisions consider context and protect non-verifiable statements
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From the Summer 2011 issue of The News Media & The Law, page 29.

Several recent dismissals of defamation claims based on statements the courts found to be constitutionally protected opinion have reaffirmed the opinion defense as one of the most potent tools available to individuals or organizations sued for libel.

The opinion defense has immunized a wide range of expression, from Hustler magazine’s well-known satirical advertisement of the Rev. Jerry Falwell to a less-than-complimentary book review that said the work was marred by an overabundance of sloppy journalism.

In recent months, courts have ruled that the opinion defense protects: statements about Muslim terrorism financing in the United States; statements implying that the operator of all-inclusive vacation resorts uses racist hiring policies; and statements questioning a local mayor’s rationale for sending questionnaires to the city’s younger residents.

Conversely, statements in a plagiarism investigation that partially blamed a university faculty member for widespread student copying in master’s theses are not statements of protected opinion, a court held.


The Milkovich standard

The U.S. Supreme Court adopted the legal standard for statements of opinion in its 1990 seminal opinion case Milkovich v. Lorain Journal Co. The Milkovich Court described two broad categories of opinion protected by the First Amendment.

The first involves statements that are not “provable as false,” meaning the language cannot be proved true or false by a core of objective evidence. This category of opinion also involves a statement of subjective belief based on disclosed true facts. The Milkovich Court offered the following example of a statement of non-provable opinion: “In my opinion Mayor Jones shows his abysmal ignorance by accepting the teachings of Marx and Lenin.”

The second category described by the Milkovich Court involves statements that “cannot reasonably [be] interpreted as stating actual facts,” meaning “loose, figurative, or hyperbolic language which would negate the impression that the writer was seriously maintaining” an actual fact, or where the “general tenor of the article” negates the impression that actual facts are being asserted.

Thus, statements must be considered in context, courts have held. This evaluation generally requires a consideration of general context, which refers to the entire work at issue, and broader context, which refers to the publication in which the work appears.


“Rank speculation, surmise or hyperbole”

Statements in a “60 Minutes” story about the alleged use of a chicken processing company as a cover for terrorism financing in the United States are constitutionally protected opinion under the latter category, a U.S. District Court judge in Washington, D.C., ruled in March.

The court dismissed a defamation lawsuit against CBS and a self-described “terrorist hunter” book author who appeared on the newsmagazine in May 2003. The 13-minute segment focused on the author’s five years of research into Muslim terrorism financing in the United States and the federal government’s use of her tips in its terrorist financing investigations.

Relying in part on information provided by the woman, named Rita Katz, but disguised on the broadcast and referred to as “Sarah,” federal law enforcement officers executed search warrants on a poultry producer and processor in Georgia. The “60 Minutes” segment centered on the Georgia investigation, conducted one year earlier. No criminal charges resulted from the investigation.

Mar-Jac Poultry Inc. alleged that the broadcast defamed the company by implying that it engaged in money laundering activities in an effort to support terrorists or terrorist organizations. The company said Katz conveyed this defamatory implication by her assertion that chicken is the “best cover for money laundering” because the numbers of dead chickens can be manipulated through a process that evades detection and renders proof of the misreported numbers unobtainable.

“But no reasonable jury could find that Ms. Katz’s statements about laundering money through misreporting dead chickens were anything but rank speculation, surmise or hyperbole, engendered, perhaps, by her thrill at being involved in an uncover [sic] capacity,” the court said in Mar-Jac Poultry, Inc. v. Katz.

The court said nothing in the broadcast suggested Katz was making knowing statements about the slaughter of chickens, noting that her use of the subjunctive “if” — “if one wanted, one could report ten million dead chickens a year” — indicated something that was uncertain or contrary to fact.

“Looking at the Broadcast as a whole, any defamatory implication that money flowed through Mar-Jac to terrorists was presented as mere speculation,” the court said. “Any further implication that Mar-Jac acted knowingly in laundering money to assist terrorists or terrorist groups remained so unspoken that it, too, could only be — at best — speculation and surmise. Accordingly, the challenged statements in the Broadcast are protected by the First Amendment.”

Mar-Jac has appealed the dismissal to the U.S. Court of Appeals in Washington, D.C.


Statements in “freewheeling, anything-goes” cyberspace

Examining allegedly defamatory statements in the context of the publication in which the work appears is particularly important in Internet libel claims, a New York appellate court ruled in May.

That’s because “[t]he culture of Internet communications, as distinct from that of print media such a [sic] newspapers and magazines, has been characterized as encouraging a freewheeling, anything-goes writing style. . . . [B]ulletin boards and chat rooms are often the repository of a wide range of casual, emotive, and imprecise speech, and . . . the online recipients of [offensive] statements do not necessarily attribute the same level of credence to the statements [that] they would accord to statements made in other contexts,” the court said.

In addition to those posted on Internet bulletin boards and in chat rooms, allegedly defamatory comments published on anonymous blogs or in widely distributed email messages like the one the court was considering also lack the level of credibility readers would give similar remarks made in other contexts, the court noted.

At issue in Sandals Resorts v. Google was a widely distributed anonymous email message criticizing Sandals, an operator of luxury, all-inclusive Caribbean resorts. The message implied that Sandals uses racist hiring policies that discriminate against local Jamaicans by giving them service jobs at the resort while saving high-paying executive jobs for foreigners.

Sandals sought disclosure of information and materials that would enable it to bring a libel claim against the holder of the Google Gmail account from which the email at issue was sent. In order to receive this information, Sandals was required to demonstrate that its libel claim against the anonymous writer had merit. Because the allegedly defamatory statements were nonactionable opinion, the court affirmed the trial court’s denial of Sandals’ request for the identifying information.

“Indeed, the e-mail at issue here, which questions not so much Sandals’ conduct with regard to race as its use of Jamaican wealth and the Jamaican labor pool, bears some similarity to the type of handbills and pamphlets whose anonymity is protected when their publication is prompted by the desire to question, challenge and criticize the practices of those in power without incurring adverse consequences such as economic or official retaliation,” the court said. “Indeed, the anonymity of the e-mail makes it more likely that a reasonable reader would view its assertions with some skepticism and tend to treat its contents as opinion rather than as fact.”

Because this broader context is an important consideration for courts evaluating whether the remark is fact or opinion, journalists are well advised to print pieces that reflect editorial commentary rather than unbiased, factual reporting in a portion of the publication reserved for and identified as such, said Ken Zirm, a Cleveland, Ohio, lawyer who recently represented an alternative newsweekly and its owners in a local mayor’s defamation suit.

“It is always safest to include your opinion articles in an opinion section or have them labeled as opinion or analysis,” Zirm said.


Statements “ridden with humor and sarcasm”

In the case Zirm defended, Seven Hills, Ohio, Mayor David Bentkowski sued Cleveland Scene for statements in its August 2007 article “The Bizarre Boy Mayor.” Bentkowski asserted he was defamed by the allegation that he “routinely tries to pull off stunts like limiting residents’ feedback at meetings and barring government employees from running for office” and an implication that he mailed questionnaires to young residents, not to stay in touch with his constituents as he claimed, but rather to seek personal information about them, including young women, for illicit purposes.

The work’s appearance in “First Punch,” a section of the publication that features humor, comments and criticism — or its “weekly gossip column,” as Zirm described it — would lead an ordinary reader to believe that the piece is opinion, the U.S. Court of Appeals in Cincinnati (6th Cir.) held in April in Bentkowski v. Scene Magazine, which affirmed the trial court’s dismissal of the suit.

“The specific language [by itself] could be an implication of fact, but because it was in this section known for hyperbole, that weighs in favor of opinion,” Zirm said.

Moreover, the general context of the article, which refers to the entire work at issue, clearly indicates that the author’s “pointed, biting, and tough” statements reflected his opinion and intent to persuade readers to his point of view, the court ruled, noting his use of words and phrases such as “super-duper cool,” “sweet,” “rad,” “killer,” “Autistic Village,” “student-council campaign speech” and “political IQ of Quiznos’ lettuce.”

The article “uses simile, hyperbole, and other figurative language to express ideas, and it is ridden with humor and sarcasm,” the court said. “The author makes no attempt to hide his bias, and it would be unreasonable for a reader to view his comments as impartial reporting.”


Provably false statements

However, another appellate court in Ohio recently found that the broader context of statements in a university report about a plagiarism investigation that implicated a professor in the misconduct would signify to a reasonable reader that what was conveyed in the statements is factual.

“[I]t is reasonable to assume that a university’s issuance of a press release in response to allegations of plagiarism would not be taken lightly. It is equally assumable that such a release would be carefully and deliberately crafted, rather than hastily thrown together. Finally, it is reasonable to assume that a university would refrain from issuing unfounded accusations and conclusions,” the court in Mehta v. Ohio University ruled in July.

The case arose after Ohio University associate professor Bhavin Mehta sued the institution for libel after it released the results of an external investigation into allegations of plagiarism in the Department of Mechanical Engineering. The investigation, conducted by a two-person committee hired by the university’s provost, looked into graduate students’ theses.

The investigation found that “rampant and flagrant plagiarism has occurred in the graduate program of the [department] for over twenty years” and that “the vast majority of the cases revolve around three faculty members who either failed to monitor the writing in their advisees theses or simply ignored academic honesty, integrity and basically supported academic fraudulence.”

Mehta, an associate professor, was not named in the report of the investigation, but it recommended that the university fire the “Group II faculty member who had the second highest incidences of plagiarism.”

Mehta was the only Group II faculty member in the department at the time, so he was easily identifiable.

A report detailing the investigation was released to the media, which had been following the case closely. Mehta denied the allegations that he was complicit in student plagiarism.

The trial court held that the allegedly defamatory statements in the report were the constitutionally protected opinions of the investigators charged with looking into the matter and, thus, dismissed the case.

The appellate court overruled that finding, reinstating Mehta’s claim against the university.

Like the university’s decision to publicly release the report, references to specific data and documents in it lent credence to statements therein, the court ruled.

This information also rendered the statements provable as false and, thus, outside the constitutional protection for opinion, it said.

This objective evidence included: references to a four-month inquiry during which the investigators read and examined various documents; a conclusion, reached after a review of an additional 65 theses from 13 other disciplines across the campus, that the plagiarism was limited to the Department of Mechanical Engineering; and a finding that “[o]f the total 293 master theses completed in the department of Mechanical Engineering (according to the College’s records), 106 or 36 percent were supervised by the two individuals who have been identified as the major contributors of the plagiarism problem in that department,” among others.

“Clearly, [the investigators] implied that they had first-hand knowledge of facts supporting the conclusions they reached,” the court said. “Indeed, the Report gives every indication that they conducted a thorough investigation before reaching their conclusions. . . . [T]he statements in the . . . Report are verifiable. A reasonable reader would perceive them as such.”

Fred Gittes, the professor’s attorney, said the court’s finding on the context issue could have implications for journalists and others engaged in publishing activities. He provided the following example: If a report appears on the front page of a newspaper and purports to be an unbiased news account of an event, reasonable readers would likely deem the information contained therein to be factual, Gittes said. As such, interspersing statements of subjective belief based on the reported facts, statements that likely would be protected if considered in isolation, does not transform allegedly defamatory comments into nonactionable opinion given the factual context in which they appear, he added.