State high court says 'scam' comment was not libelous

COLORADO — A medical ethicist’s comment on KCNC-TV that the sale of a package of “Living Will” forms — “I think it’s a scam” — was not libelous because a reasonable person would not take it as a statement of fact, the state Supreme Court ruled in mid-July.

The decision marked the first libel decision by the state’s high court since the 1990 U.S. Supreme Court holding in Milkovich v. Lorain Journal that opinion statements can be libelous if they can be proven true or false.

The Colorado high court found that statements are not libelous if uttered in a context that would be understood as opinion, not fact. Over the dissents of three justices, the high court found that Marsh’s statements could not be reasonably understood as an assertion of actual fact.

In April 1991 KCNC reporter Suzanne McCarroll interviewed Merrill Hastings, the president of the Living Will Center, regarding a package of forms the center marketed for $29.95. She also interviewed Dr. Frank Marsh, a professor of medical ethics at the University of Colorado medical school who not only depicted the package as a “scam,” but also said people would send in $29.95 and “what they get back is they’ve been taken — is what it amounts to — totally taken.” Later on Marsh told McCarroll the marketed forms were “unnecessary — certainly not worth paying for.”

In May 1991 the Living Will Center sued KCNC, the NBC affiliate in Denver in Jefferson County District Court in Golden claiming its airing of Marsh’s comments was defamatory. But in October 1991 the trial court ruled that the “substance and gist” of telecasts asserting that the public could get the forms cheaper elsewhere, were not false.

The Living Will Center then appealed to the court of appeals in Denver, citing the U.S. Supreme Court’s 1990 ruling in Milkovich that if a “core of objective evidence” could prove or disprove statements they were not protected opinion. “Scam” and “taken” were precise terms that could be proved or disproved, the court said. It remanded the case for determination of whether KCNC had aired libelous descriptions.

The appeals court in February 1993 agreed saying that Marsh’s comments were not constitutionally protected speech in that they contained or implied provably false factual assertions.

The television station appealed to the Supreme Court arguing that the terms must be viewed in context, that the statements were introduced as Marsh’s opinion and offered in the context of a public dispute. The words were “slang, loose, hyperbolic expressions” that did not contain verifiable facts, the broadcaster said.

(NBC Subsidiary (KCNC-TV), Inc. v. The Living Will Center; Media Counsel: Thomas Kelley, Denver)