GUILFORD TRANSP. INDUSTRIES v. Wilner

• Citation: 760 A.2d 580
• Decision Date: 12 October 2000
• Docket Number: No. 99-CV-349.,99-CV-349.
• Parties: GUILFORD TRANSPORTATION INDUSTRIES, INC., et al., Appellants, v. Frank N. WILNER, Appellee.
• Court: Court of Appeals of Columbia District

760 A.2d 580

GUILFORD TRANSPORTATION INDUSTRIES, INC., et al., Appellants, v. Frank N. WILNER, Appellee.

No. 99-CV-349.

District of Columbia Court of Appeals.

Argued April 11, 2000.

Decided October 12, 2000.

John R. Fornaciari, with whom Robert M. Disch, Washington, DC, was on the brief, for appellants.

Michael L. Martinez, with whom Edward V. Hickey III, Washington, DC, was on the brief, for appellee.

Laura R. Handman and Rebecca R. Reed, Washington, DC, filed a brief for The Washington Post Company, Cable News Network LP, LLLP, Gannett Company, Inc., The New Republic, Inc., and The Reporters Committee for Freedom of the Press, Amici Curiae, urging affirmance.

Before SCHWELB, REID, and GLICKMAN, Associate Judges.

SCHWELB, Associate Judge:

This appeal arises from an action for libel. The plaintiffs are Guilford Transportation Industries, Inc. (Guilford), Timothy Mellon, and David Fink. Guilford operates a freight railroad system in New England, consisting of the Maine Central, the Boston and Maine, and Springfield Terminal railroads. Mellon and Fink founded Guilford in 1981 and own it. Mellon is a member of Guilford's Board of Directors, and Fink manages Guilford's operations. The sole defendant is Frank Wilner, the author of an "Op-Ed" column which appeared on June 2, 1997 in the Journal of Commerce, a trade publication said to be widely read by persons in the railroad industry and by regulatory officials. In this column, a copy of which is appended to this opinion, Wilner discussed an attempt by Guilford to purchase or lease from Amtrak certain rail operations in the northeastern United States.

In their complaint, which was filed on July 8, 1997, the plaintiffs allege that Wilner's column is defamatory and contains demonstrably false statements of fact. Wilner responds that the representations of which the plaintiffs complain are all either true, or incapable of bearing a defamatory meaning, or statements of opinion protected by the First Amendment. In a comprehensive oral ruling in which she focused on the potential of this type of suit for chilling constitutionally protected speech, Judge Ellen S. Huvelle granted summary judgment in favor of Wilner. The plaintiffs now appeal.

"At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern." Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988). If the First Amendment's guarantees of freedom of speech and of the press are to ensure that these rights are meaningful not simply on paper, but also in the practical context of their exercise, then a newspaper Op-Ed column discussing a subject of public interest must surely be accorded a high level of protection, lest the expression of critical opinions be chilled. This is so because

[t]he reasonable reader who peruses [a] column on the editorial or Op-Ed page is fully aware that the statements found there are not "hard" news like those printed on the front page or elsewhere in the news sections of the newspaper.

Readers expect that columnists will make strong statements, sometimes phrased in a polemical manner that would hardly be considered balanced or fair elsewhere in the newspaper.... That proposition is inherent in the very notion of an "Op-Ed page." Because of obvious space limitations, it is also manifest that columnists or commentators will express themselves in condensed fashion without providing what might be considered the full picture. Columnists are, after all, writing a column, not a full-length scholarly article or a book. This broad understanding of the traditional function of a column like Evans and Novak will therefore predispose the average reader to regard what is found there to be opinion.

Ollman v. Evans, 242 U.S.App.D.C. 301, 317, 750 F.2d 970, 986 (1984) (en banc) (plurality opinion), cert. denied, 471 U.S. 1127, 105 S.Ct. 2662, 86 L.Ed.2d 278 (1985) (citation and footnote omitted) (discussing a column in the Washington Post by Rowland Evans and Robert Novak).

Although the Supreme Court has made it clear, since Ollman was decided, that statements of "opinion" are not constitutionally protected if they assert provably false and defamatory facts, see Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990),

the constitutional principles that animate the passage we have quoted from Ollman remain equally compelling and equally good law today.¹

See, e.g., Moldea v. New York Times Co., 306 U.S.App.D.C. 1, 2, 22 F.3d 310, 311,

cert. denied, 513 U.S. 875, 115 S.Ct. 202, 130 L.Ed.2d 133 (1994) (Moldea II) (modifying Moldea v. New York Times Co., 304 U.S.App.D.C. 406, 15 F.3d 1137 (1994) (Moldea I)); Partington v. Bugliosi, 56 F.3d 1147, 1154 (9th Cir.1995). "Unless persons, including newspapers, desiring to exercise their First Amendment rights are assured freedom from the harassment of lawsuits, they will tend to become self-censors." Washington Post Co. v. Keogh, 125 U.S.App.D.C. 32, 35, 365 F.2d 965, 968 (1966),

cert. denied,

385 U.S. 1011, 87 S.Ct. 708, 17 L.Ed.2d 548 (1967). "[S]elf censorship affecting the whole public is `hardly less virulent for being privately administered.'" Id. (quoting Smith v. California, 361 U.S. 147, 154, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959)). Moreover, in the first instance, "it is the court, not the jury, that must vigilantly stand guard against even slight encroachments on the fundamental constitutional right of all citizens to speak out on public issues without fear of reprisal." Myers v. Plan Takoma, Inc., 472 A.2d 44, 50 (D.C.1983) (per curiam) (adopting Superior Court opinion of Weisberg, J.).

This is not an easy case, for the plaintiffs have submitted affidavits alleging that Wilner's article contains provably false statements of fact and that Wilner has admitted that he knew these statements to be false. After carefully examining the article in light of all of the plaintiffs' allegations, however, we conclude that the foregoing authorities are dispositive of this appeal, and that imposition of liability upon Wilner would tend to chill the robust debate and discussion which form an essential part of our constitutional tradition. Accordingly, we affirm the judgment in Wilner's favor.

I. THE FACTS

A. "Guilford's Tempestuous Past."

This controversy began in May of 1997, when Guilford announced its intention to acquire Amtrak's train operations in the northeastern United States. The prospect of a privatized Amtrak sparked debate throughout the transportation industry. On June 2, 1997, Wilner, an economist who had frequently written on transportation issues, entered the fray with the publication of the column, entitled Guilford's Tempestuous Past,² which precipitated this litigation. At that time, Wilner was the Chief of Staff to one of the Commissioners of the Surface Transportation Board, which had replaced the Interstate Commerce Commission as the federal agency that regulates railroads and enforces the railway labor laws.

In "Guilford's Tempestuous Past," Wilner began with the rhetorical inquiry "Who is Guilford?" His response was that Guilford was a company created in 1981 when Timothy Mellon, the "38-year-old scion of the Mellon banking fortune . . . tired of a rail-tie manufacturing operation and coveted three of the nation's most ineligible railroads — bankrupt Boston & Maine, comatose Delaware & Hudson and marginally profitable Maine Central." According to Wilner, Mellon and Fink, "a former Pennsylvania Railroad operating officer and fourth-generation railroader," purchased the three railroads and unified them into the "4,000-mile rail system" that became Guilford. Mellon was described in the column as a recluse "with a master's degree in city planning from Yale and an interest in Indian rights."

Wilner then suggested that Guilford itself was a business venture which could only succeed by extracting concessions from labor:

Crucial to making Guilford profitable was cooperation from its 12 disparate labor unions. Quickly, a bitter labormanagement conflict was ignited when Guilford bolted from traditional national wage and benefits negotiations. Local negotiations with the Brotherhood of Maintenance of Way Employees culminated in an almost three-month strike that required Congressional intervention.

Guilford tried another tack, leasing its component railroads — B & M, D & H, and Maine Central — to a tiny and specialized B & M subsidiary, Springfield Terminal, which enjoyed a concessionary labor contract with the United Transportation Union [UTU].

Before the lease, Springfield Terminal employed just 53 workers. Suddenly it became the de facto operator of the entire Guilford system, employing 2,000 people — and Guilford asserted that all its employees, represented by a dozen different unions, had become covered by Springfield Terminal's UTU contract providing for lower wages and greater work-rules flexibility.

The Interstate Commerce Commission — with a zealous pro-management bias in those days — sanctioned the lease agreement and referred certain labor issues to binding arbitration. When a neutral arbitrator ruled in favor of employees — concluding that existing collective bargaining agreements could no more be scrapped than existing contracts for locomotive fuel — the ICC partially overturned the award.

Wilner also described certain litigation that arose following the lease to Springfield Terminal. He wrote that the "employees demanded new union elections that resulted in a scrapping of [UTU's] single representation contract with Springfield Terminal in favor of nine separate craft unions." This, in turn, led to more problems for Guilford:

As Guilford — through Springfield Terminal — began negotiating new agreements, work stoppages followed, as did a bankruptcy filing by D & H (which now is owned and operated by Canadian National), appeals to the federal courts of previous

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