Criticism of lawyer’s trial tactics protected as opinion

06/16/95

HAWAII–In early June, the U.S. Court of Appeals (9th Cir.) in San Francisco dismissed a libel and false light claim brought by a criminal defense lawyer against another lawyer, a book publisher and a television network on the grounds that the allegedly libelous statements were personal viewpoint, not assertions of fact.

Vincent T. Bugliosi wrote the book “And The Sea Will Tell” about a prominent murder case in which he served as an attorney for one of the defendants. Attorney Earle E. Partington represented a co- defendant. In 1991, CBS produced a made-for-television movie based on the book.

Partington sued Bugliosi, CBS and Random House in U.S. District Court in Honolulu for libel and false light, claiming that the book and the movie contained statements implying that he was an incompetent attorney.

The Court of Appeals held that the allegedly libelous statements and the “general tenor” of the book made it clear that Bugliosi’s observations about Partington’s trial strategies represent statements of personal viewpoint, not assertions of objective fact. Therefore, the court ruled, the statements were protected by the First Amendment.

The court also ruled that statements concerning a lawyer’s trial performance cannot be actionable for libel because such statements are not susceptible of being proved true or false.

The court rejected the false light claims for the same reason, finding that the challenged statements are protected by the First Amendment as opinion. (Partington v. Bugliosi; Media Counsel: Francis Nakamoto, Honolulu)

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.