6th Cir. finds article on mayor to be protected speech

The U.S. Court of Appeals in Cincinnati (6th Cir.) ruled on Tuesday, in Bentkowski v. Scene Magazine, that a column concerning a local mayor is protected speech and not defamatory.

David A. Bentkowski, mayor of Seven Hills, Ohio, sued Scene Magazine and others, claiming that the local magazine's August 2007 article "The Bizarre Boy Mayor" was defamatory, but the court held that the article was protected opinion under the law.

Circuit Judge Boyce F. Martin Jr. explained in the opinion that Bentkowski claimed two portions of the article were defamatory: "(1) 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 (2) the portion of the article related to the 'young residents' letter, which Bentkowski alleges falsely implies that he sought personal information about his constituents, including young women, for illicit purposes."

In order to determine whether or not the statements constituted protected opinion or actionable fact, the court considered "(1) 'the specific language used'; (2) 'whether the statement is verifiable'; (3) 'the general context of the statement'; and (4) 'the broader context in which the statement appeared.'"

Bentkowski's claim said the "young residents" letter portion of the article insinuated illicit intent. However, the court found that the article doesn't clearly state or imply that the mayor had an illicit motive and, therefore, the claim was not actionable. The mayor's other claim concerning the "stunts" favored actionability due to the language used by the author, according to the court.

However, "[t]he author makes no attempt to hide his bias, and it would be unreasonable for a reader to view his comments as impartial reporting," Martin said. The court examined "the type of article and its placement in the newspaper and how those factors would influence the reader's viewpoint on the question of fact or opinion," the opinion explained. The column appeared in "First Punch," a humor, comments and criticism section of the magazine.

The court concluded: "Based upon the totality of the circumstances, we are convinced that there is no genuine issue of material fact as to whether the statements at issue constitute fact or opinion: the ordinary reader would accept the article as opinion." Therefore, the appellate court agreed with the district court that "there is no genuine issue of material fact, and the article is protected opinion as a matter of law."