56 F.3d 1147 (9th Cir. 1995), 94-15094, Partington v. Bugliosi

Docket Nº:94-15094.
Citation:56 F.3d 1147
Party Name:Earle A. PARTINGTON, Plaintiff-Appellant, v. Vincent T. BUGLIOSI; Bruce B. Henderson; W.W. Norton & Company, Inc.; Random House Inc.; CBS Inc.; Green Epstein Productions, Inc.; Columbia Pictures Television, Inc.; Matthew O'Connor; Tommy L. Wallace; Jim Green; Alan Epstein; and James Henderson, Defendants-Appellees.
Case Date:June 07, 1995
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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56 F.3d 1147 (9th Cir. 1995)

Earle A. PARTINGTON, Plaintiff-Appellant,


Vincent T. BUGLIOSI; Bruce B. Henderson; W.W. Norton &

Company, Inc.; Random House Inc.; CBS Inc.; Green Epstein

Productions, Inc.; Columbia Pictures Television, Inc.;

Matthew O'Connor; Tommy L. Wallace; Jim Green; Alan

Epstein; and James Henderson, Defendants-Appellees.

No. 94-15094.

United States Court of Appeals, Ninth Circuit

June 7, 1995

Argued and Submitted Dec. 13, 1994.

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[Copyrighted Material Omitted]

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Neville L. Johnson, Los Angeles, CA, for plaintiff-appellant.

Paul Alston, Rhonda A. Nishimura, Honolulu, HI, for defendants-appellees.

Appeal from the United States District Court for the District of Hawai'i.

Before: TANG, SCHROEDER and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:


This case arises from the notorious Palmyra trials and the publicity surrounding them. Palmyra is an uninhabited island located in the Pacific Ocean. During the summer of 1974, Stephanie Stearns and Buck Walker sailed to the island in an old sailboat. Once there, the couple discovered that the condition of their boat and the lack of adequate supplies prevented their return. Shortly after their arrival, Muff and Mac Graham arrived on a second sailboat. By the end of October that same year, the Grahams had disappeared, and Stearns and Walker had returned to Hawaii sailing the boat that once belonged to the Grahams. In 1981, the bones of Muff Graham were found washed up on Palmyra, and Stearns and Walker were indicted for her murder.

Earle Partington was appointed to represent Walker, while Stearns hired Vincent Bugliosi to represent her in a separate trial. Partington is a well-known criminal defense lawyer, although his "passive" handling of a controversial murder case once caused the Hawaii Supreme Court to reverse his client's conviction sua sponte. Partington v. Bugliosi, 825 F.Supp. 906, 910 (D.Hawaii 1993) (describing the facts surrounding the Hawaii Supreme Court decision). Bugliosi is a noted lawyer and author who prosecuted Charles Manson and wrote the best-selling book Helter Skelter, but whose efforts to attain elected political office were rejected by the voters of California.

In the Palmyra Island murder cases, which took place in the federal district court in Honolulu, Partington's client was convicted and Bugliosi's acquitted. Following the trials, Bugliosi, along with Bruce Henderson, [the "Book Defendants" or "Bugliosi"] wrote And The Sea Will Tell, an account of his successful defense of Stearns. In 1991 CBS, in conjunction with a number of producers and the Epstein Productions company ["Movie Defendants"], produced a made-for-television movie based on Bugliosi's book.

Partington filed a damage claim against both the Book and Movie Defendants alleging defamation and false light claims. The

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action was filed in federal district court which had diversity jurisdiction. In Counts II and III, 1 Partington contends that the Book Defendants defamed him and cast him in a false light by implying that he had not read the transcript of the state court theft trial (regarding the theft of the Grahams' boat) and that he was therefore an incompetent attorney. 2 In Count IV, Partington alleged that a statement in the book criticizing him for taking an overly submissive stance toward the judge presiding over Walker's trial cast him in a false light. 3 In Counts V and VI, Partington alleges that the Book Defendants defamed him and cast him in a false light by stating that he failed to introduce into evidence a diary indicating that Stearns and Walker had socialized with the Grahams, thereby implying that he was an

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incompetent attorney. 4 In Count VII, Partington alleges that the book cast him in a false light when it criticized him for failing to call a particular witness at trial. 5 Finally, Partington alleges that the Movie Defendants defamed him by portraying Bugliosi as telling Stearns that she would spend the rest of her life in prison if he defended her the way Partington defended Walker. 6

The district court granted the defendants' motion for summary judgment, concluding that Partington had failed to establish a claim for defamation or false light. Partington v. Bugliosi, 825 F.Supp. 906 (D.Hawaii 1993). Partington appeals.


We note preliminarily that there are several issues raised by one or the other of the parties that it is not necessary for us to reach. First, we need not decide whether the disputed statements can fairly be read to imply that Partington represented his client poorly and whether such an implication would be considered defamatory under state law. See Fernandes v. Tenbruggencate, 649 P.2d 1144, 1147 (Hawai'i 1982) (noting that, under Hawai'i law, a statement is defamatory if it "tends to 'harm the reputation of another so as to lower him in the estimation of the

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community or to deter third persons from associating or dealing with him.' "); id. at 1147 n. 1 (noting that the statements must be reasonably capable of bearing the meaning ascribed to them in order to serve as the basis of a defamation claim). Because we hold that the First Amendment protects these statements regardless of what state law provides, see infra pp. 1153-1162, we assume arguendo that the statements do imply that Partington represented his client poorly during the Walker trial. 7

Next, we do not decide whether Partington was a limited purpose public figure or whether the passage of time would have had any effect upon that status since, whether or not Partington can allege malice, the statements he contests are not actionable. See infra pp. 1153-1162. 8 In addition, we do not determine whether the fact that Partington's claim regarding passages in the book rests upon the implication arising from the statements, rather than upon their actual content, would affect the showing that Partington is required to make because, even if Bugliosi had stated directly what Partington contends he implied, his statements would be protected by the First Amendment. See infra pp. 1153-1160. 9

Until a few years ago, we drew a sharp, formalistic line between fact and opinion, holding that anything cast in the form of an opinion was absolutely protected by the First Amendment and could not serve as the basis for a defamation claim. See, e.g., Ault v. Hustler Magazine, Inc., 860 F.2d 877, 880-81 (9th Cir.1988), cert. denied, 489 U.S. 1080, 109 S.Ct. 1532, 103 L.Ed.2d 837 (1989).

In Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), however, the Supreme Court rejected the bright-line approach of this and other circuits. It found the opinion/fact dichotomy too simplistic. The Court stated that it had never intended "to create a wholesale defamation exemption for anything that might be labeled 'opinion.' " Milkovich, 497 U.S. at 18, 110 S.Ct. at 2705. The Court reasoned that "[s]imply couching such statements in terms of opinion does not dispel [the false, defamatory] implications" because a speaker

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may still imply "a knowledge of facts which lead to the [defamatory] conclusion." Id. at 19, 110 S.Ct. at 2706. It therefore held that, while "pure" opinions are protected by the First Amendment, 10 a statement that "may ... imply a false assertion of fact" is actionable. Id. at 19, 110 S.Ct. at 2706.

We have had only one previous opportunity to interpret Milkovich. In Unelko Corp. v. Rooney, 912 F.2d 1049, 1053 (9th Cir.1990), cert. denied, 499 U.S. 961, 111 S.Ct. 1586, 113 L.Ed.2d 650 (1991), we held that, in reviewing a defamation claim, a court must ask as a threshold matter "whether a reasonable factfinder could conclude that the contested statement 'impl[ies] an assertion of objective fact.' " If the answer is no, the claim is foreclosed by the First Amendment. As a starting point for our analysis, we adopted a three-part test: (1) whether the general tenor of the entire work negates the impression that the defendant was asserting an objective fact, (2) whether the defendant used figurative or hyperbolic language that negates that impression, and (3) whether the statement in question is susceptible of being proved true or false. Id.

Under Unelko 's basic framework, we examine the work as a whole, the specific context in which the statements were made, and the statements themselves to determine whether a reasonable factfinder could conclude that the statements imply a false assertion of objective fact and therefore fall outside of the protection of the First Amendment. Here, we flesh out the Unelko framework. Ultimately, we conclude that in this case the general and specific contexts in which the defendants' contested statements were made do not imply the assertion of an objective fact. We also conclude that those statements are not capable of being proved true or false. Accordingly, we hold that the district court correctly concluded that, under the standards outlined in Milkovich, Partington failed to state a defamation claim: while the defendants' descriptions of Partington's performance during Walker's trial may imply that he represented his client poorly, the statements are protected by the First Amendment and are therefore not actionable.


The Supreme Court and other courts have emphasized that one must analyze a statement in its broad context to determine whether it implies the assertion of an objective fact. See, e.g., Masson v. New Yorker Magazine, 501 U.S. 496, 520, 111 S.Ct. 2419, 2435, 115 L.Ed.2d 447 (1991); Milkovich, 497 U.S. at 19, 110 S.Ct. at 2706; Phantom Touring, Inc. v. Affiliated Publications, 953 F.2d 724, 727 (1st Cir.), cert. denied, 504 U.S. 974, 112 S.Ct. 2942, 119 L.Ed.2d 567 (1992). With...

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