McCabe v. Rattiner, 86-1032

Decision Date30 March 1987
Docket NumberNo. 86-1032,86-1032
Citation814 F.2d 839
Parties, 22 Fed. R. Evid. Serv. 1083, 13 Media L. Rep. 2309 Thomas McCABE, et al., Plaintiffs, Appellants, v. Daniel RATTINER, et al., Defendants, Appellees.
CourtU.S. Court of Appeals — First Circuit

William C. Kollman, II with whom Holth Kollman & Fairlie, New London, Conn., and John C. Levanti, Westerly, R.I., were on brief for plaintiffs, appellants.

Joseph V. Cavanagh, Jr. with whom Blish & Cavanagh, Knight Edwards, Jeffrey C. Schreck and Edwards & Angell, Providence, R.I., were on brief for defendants, appellees.

Before COFFIN, BOWNES and TORRUELLA, Circuit Judges.

TORRUELLA, Circuit Judge.

This case takes us to the juncture between the law of defamation and the first amendment, where courts have developed the doctrine of constitutionally protected opinion. See, e.g., Ollman v. Evans, 750 F.2d 970 (D.C.Cir.1984) (en banc), cert. denied, 471 U.S. 1127, 105 S.Ct. 2662, 86 L.Ed.2d 278 (1985); Information Control Corp. v. Genesis One Computer Corp., 611 F.2d 781 (9th Cir.1980); Buckley v. Littell, 539 F.2d 882 (2d Cir.1976), cert. denied, 429 U.S. 1062, 97 S.Ct. 786, 50 L.Ed.2d 777 (1977). Although we have considered this doctrine previously, we have never used it as the basis for our decision. See Bose Corp. v. Consumers Union of United States, Inc., 692 F.2d 189, 193-94 (1st Cir.1982). Accordingly, it is required that we devote some time to explaining the development of this doctrine and our reasons for adopting it in this case.

The Mistaken Scam

On August 31, 1984, appellee Daniel Rattiner published a first person article in the Block Island Times relating his encounter with Island Manor Resort, a timeshare condominium development owned by appellant Thomas McCabe. The article, "Selling Timesharing on the Street," described how an Island Manor salesman induced Rattiner and his wife to look at the condominiums by offering a free lobster dinner. After the couple failed to respond to the sales pitch, the lobster dinner was forgotten, until Rattiner later returned and insisted that he be given what he was promised.

In the course of the narrative, Rattiner related various facts about the condominiums, the sales techniques, and the financial arrangements involved. He mentioned McCabe's name once, as the owner of the resort, and also described how McCabe ordered his salespeople to make good on their promise of a lobster dinner to the Rattiners. The article closed with a series of questions regarding the propriety of timeshare condominiums on Block Island, leaving the clear impression that the author opposed them.

The basis of this lawsuit appeared in the carryover headline on the second page of the article (called a "jumpline" in publishing terminology): the one word, "Scam." At trial Rattiner testified that he did not intend that "Scam" be the jumpline. His assistant inserted it by mistake. Nevertheless, he did think that the operation was a scam.

At the close of evidence, the trial judge directed a verdict for defendant Rattiner. First, in a ruling that is not challenged on appeal, the judge found that Thomas McCabe and Island Manor Resort were public figures for at least the limited purpose of the timeshare controversy. Then, using an analysis very similar to that outlined by the plurality opinion in Ollman v. Evans, supra, although somewhat more influenced by Professor Keeton's law review article, 1 the trial court found further that the jumpline represented defendant's opinion and that it was constitutionally protected. Thomas McCabe appealed.

The Doctrine of Constitutionally Protected Opinion

The doctrine of constitutionally protected opinion is an attempt to reconcile the conflict between defamation law, which has as a major purpose the compensation of individuals for speech that harms them, and the first amendment, which has among its purposes the protection of free speech. In dictum, the Supreme Court referred to the distinction between opinion and false statements of fact in Gertz v. Robert Welch, 418 U.S. 323, 339-40, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974), as follows:

[U]nder the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society's interest in "uninhibited, robust, and wide open" debate on public issues."

(Citations and footnote omitted). Courts saw this distinction as a bright line demarcating when defamation law must give way to the mandates of the first amendment.

However, courts that have tried to apply the fact/opinion distinction have discovered that speech does not always break down into such clear categories. See, e.g., Ollman v. Evans, 713 F.2d 838, (D.C.Cir.1983), reh'g granted and vacated, 750 F.2d 970 (1984) (en banc), cert. denied, 471 U.S. 2662, 105 S.Ct. 2662, 86 L.Ed.2d 278 (1985) (differing on whether the statement in an op-ed article that a professor "has no status within the profession but is a pure and simple activist" is a statement of fact or opinion). For guidance they have turned to two Supreme Court opinions that, while not framed precisely in terms of the Gertz dictum, involve similar distinctions.

The first case, Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970), concerned a newspaper article reporting that citizens had characterized a developer's negotiating position as "blackmail." The Court stated that the publication was protected because the article clearly and accurately described the dispute and, in context, "even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet...." Courts have interpreted this case to mean that statements must be examined in the context of the article in which they appear. See, e.g., Ollman v. Evans, 750 F.2d 970 (D.C.Cir.) (en banc), cert. denied, 471 U.S. 1127, 105 S.Ct. 2662, 86 L.Ed.2d 278 (1985). While the statement "X is a blackmailer" appears, in isolation, to be a criminal allegation, in the context of a well reported public event, the statement can represent the opinion that X's tactics are not good for the city and ought to be challenged.

The second case, Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974), expands the importance of context. That case concerned a newsletter issued during a strike that published a list of "scabs" along with a vituperative definition of a scab generally attributed to Jack London. See id. 418 U.S. at 268, 94 S.Ct. at 2773. In ruling that the publication was protected, the court referred to the climate of a labor strike and the light in which people would read a union newsletter. The Court concluded:

Such words were obviously used here in a loose, figurative sense to demonstrate the union's strong disagreement with the views of those workers who oppose unionization. Expression of such an opinion, even in the most perjorative terms, is protected under federal labor law. Here, too, "there is no such thing as a false idea...." Gertz v. Robert Welch, Inc., 418 U.S. at 339-40, 94 S.Ct. at 3006-07.

418 U.S. at 284, 94 S.Ct. at 2781. While Letter Carriers was decided under principles of labor law, its referral to the Gertz dicta, along with its distinction between fact and opinion, make it important precedent.

Building on this base, courts have developed the doctrine of constitutionally protected opinion into an examination of the "totality of the circumstances" surrounding an alleged defamation. See, e.g., Information Control Corp. v. Genesis One Computer Corp., 611 F.2d 781 (9th Cir.1980). While the cases refer liberally to the opinion/fact distinction, courts recognize that these categories are only a guide. Depending upon the context, a statement of fact may be protected while a statement of opinion may not. See, e.g., Ollman v. Evans, 750 F.2d at 982; Restatement (Second) of Torts Sec. 566 comment c.

Courts differ somewhat in the factors they apply in evaluating the totality of the circumstances, and in the extent to which they admit to applying any "mechanical" factor analysis at all. Compare Lewis v. Time, Inc., 710 F.2d 549 (9th Cir.1983) ("three factors important in determining whether a statement is fact or opinion") and Ollman v. Evans, 750 F.2d 970 (D.C.Cir.1984) (four factors) with Ollman v. Evans, 750 F.2d at 993 (Bork, J., concurring) (factor analysis is too rigid). Nevertheless, they do share in common an approach that analyzes the alleged defamation in the context of the article in which it appears along with the larger social context to which it relates. We adopt that approach here. In considering whether the jumpline, "scam," was protected speech, we will examine the statement itself, the article as a whole, and its social context, much as the district court did below.

The Scam in Context

Beginning with the statement itself, we observe that the word "scam" does not have a precise meaning. As the district judge said in his bench ruling, "it means...

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