Janklow v. Newsweek, Inc.

Citation788 F.2d 1300
Decision Date10 April 1986
Docket NumberNo. 84-1452,84-1452
Parties, 11 Media L. Rep. 1995, 12 Media L. Rep. 1961 William JANKLOW, Appellant, v. NEWSWEEK, INC., Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Joseph M. Butler, Rapid City, S.D., for appellant.

Lawrence L. Piersol, Sioux Falls, S.D., for appellee.

Before LAY, Chief Judge, and HEANEY, ROSS, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN and WOLLMAN, Circuit Judges, en banc.

ARNOLD, Circuit Judge.

William Janklow, the Governor of South Dakota, filed this defamation action against Newsweek magazine based on an article in the weekly's February 21, 1983, issue about American Indian activist Dennis Banks. The article, "Dennis Banks's Last Stand," purports to give a history of the relationship between Banks, who fled the state in the mid-1970's after his conviction on two felony counts, and Janklow, who while Attorney General prosecuted Banks and later, as Governor, sought his extradition. Janklow's claim centers on one paragraph of the article, which referred to Banks's 1974 initiation of tribal charges of assault against Janklow, in connection with an allegation (now acknowledged to be false) that the plaintiff had raped a teenaged Indian girl five years before.

The District Court 1 granted summary judgment for the defendant magazine. The court held that Newsweek correctly reported the material facts of the rape allegation, that the article did not suggest the magazine believed the truth of the allegation, and that any implication that revenge motivated Janklow's prosecution of Banks was opinion and therefore nonactionable under the First Amendment.

On appeal, a divided panel of this Court upheld the first two holdings 2 but reversed the third on the ground that "the meaning that can be drawn from the Newsweek article--that Janklow did not commence prosecuting Banks until after Banks attempted to bring him to justice for the alleged rape of an Indian girl--is factual." Janklow v. Newsweek, Inc., 759 F.2d 644, 652 (8th Cir.1985). The panel's holding was based on four factors. The panel found that the language of the article was, on the whole, that of a factual account; that the forum--a weekly newsmagazine--was likely to be considered as offering "hard" news; that the article's implication was not "broad, unfocused or subjective" but rather a "specific factual assertion," id. at 652; and finally, that no cautionary language was used to signal to the reader that opinion, and not fact, was being presented. We granted defendant's petition for rehearing en banc on the question whether the article should be read as fact or opinion. We now hold it to be opinion, absolutely protected by the First Amendment, and therefore affirm the judgment dismissing the complaint with prejudice.

I.

Opinion is absolutely protected under the First Amendment. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974). But it is hard to draw a bright line between "fact" and "opinion." There is a sense in which one's intention or motive in performing a certain act is properly categorized as "fact." Whether someone accused of mail fraud, say, had criminal intent is a question of "fact" to be decided by the jury in a criminal prosecution. Whether someone promising to perform a contract actually had no intention of doing so is a "fact" that, in some jurisdictions, will support a civil action for fraud. And in this sense, whether Governor Janklow prosecuted the case against Banks for revenge, or out of a genuine sense of duty, is a question of "fact." But the term "fact" need not have the same meaning in every legal context. The meaning we give to it should depend on the purposes of the law being applied. Here, that law is the First Amendment, which in the most uncompromising terms ("Congress shall make no law ...") seeks to protect freedom of speech.

In establishing the criteria by which to judge "Dennis Banks's Last Stand," we have looked at how a variety of courts have handled the fact/opinion distinction since its importance was made clear in Gertz. 3 Recently, the issue was thoroughly ventilated by the District of Columbia Circuit, Ollman v. Evans, 750 F.2d 970 (D.C.Cir.1984) (en banc), cert. denied, --- U.S. ---, 105 S.Ct. 2662, 86 L.Ed.2d 278 (1985), and we choose here to adopt the four factors suggested in Judge Starr's scholarly opinion, and to expand them, for reasons we will explain, to include elements of the concurrence by Judge Bork. We emphasize, however, that these factors must be considered together, that no solitary criterion can be dispositive, and that ultimately the decision whether a statement is fact or opinion must be based on all the circumstances involved. See Ollman, 750 F.2d at 1060 ("important these factors not be taken mechanically") (MacKinnon, J., concurring).

The first relevant factor identified in Ollman was the precision and specificity of the disputed statement, 750 F.2d at 981, a concern found in many fact/opinion cases. See, e.g., 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) (calling someone a "fascist" was indefinite and therefore opinion, while comparing him to a known libeller was specific and so fact). It is difficult to call a vague or imprecise statement a "fact"; in the present context, moreover, doing so would place the First Amendment at the mercy of linguistic subtleties and fourth-ranked dictionary definitions.

Tied to the concept of precision is that of verifiability. If a statement cannot plausibly be verified, it cannot be seen as "fact." Id. A statement regarding a potentially provable proposition can be phrased so that it is hard to establish, or it may intrinsically be unsuited to any sort of quantification. See Mr. Chow of New York v. Ste. Jour Azur, 759 F.2d 219, 226 (2d Cir.1985).

A third factor is the literary context in which the disputed statement was made. The statement must be taken as part of a whole, including tone and the use of cautionary language. Ollman, 750 F.2d at 982-83; see also Gregory v. McDonnell Douglas Corp., 17 Cal.3d 596, 131 Cal.Rptr. 641, 552 P.2d 425, 428 (Cal.1976). We include as well under the rubric of literary context the type of forum in which the statement was made, a factor which Judge Starr called "social context." Ollman, 750 F.2d at 983. This factor focuses on the category of publication, its style of writing and intended audience.

Finally, in deciding whether a statement is fact or opinion, a court must consider what we will call the "public context" in which the statement was made. It is true that the distinction between public and private figures which bears so heavily in many libel cases has no direct relevance here, see, e.g., Ollman, 750 F.2d at 975; no opinion is actionable, whether it concerns a private person or a public figure. However, when determining initially whether a statement is fact or opinion, it does a disservice to the First Amendment not to consider the public or political arena in which the statement is made and whether the statement implicates core values of the First Amendment. See Ollman, 750 F.2d at 1002-05 (Bork, J., concurring). In fact, as Judge MacKinnon recognized, "Judge Bork's skillful employment of 'the concept of a public, political arena' is crucial to a proper understanding of the analysis Judge Starr elucidates." Ollman, 750 F.2d at 1016 (MacKinnon, J., concurring).

With these factors in mind, we turn to the disputed statement in this appeal.

II.

The eight-paragraph Newsweek article 4 began with an account of Dennis Banks's flight from California shortly before he could be extradited to South Dakota, described as an escape from "the clutches of his nemesis," Governor Janklow. The piece continued by recounting Banks's activities in the American Indian Movement, including his involvement in the 1973 riot at the Custer County, South Dakota, courthouse in which several police officers were hurt. The third paragraph then told readers:

Along the way, Banks made a dangerous enemy--William Janklow. Their feud started in 1974, when Banks brought charges against Janklow in a tribal court for assault. A 15-year-old Indian girl who baby-sat for Janklow's children had claimed that he raped her in 1969. Federal officials found insufficient evidence to prosecute, but Banks persuaded the Rosebud Sioux chiefs to reopen the case under tribal law. Janklow, who was running for election as state attorney general at the time, refused to appear for the trial. But the tribal court found "probable cause" to believe the charges and barred Janklow from practicing law on the reservation. Eight months later Janklow--who had won his election despite the messy publicity--was prosecuting Banks. And his case--based on the 1973 Custer riot--was successful. Found guilty of riot and assault without intent to kill, Banks jumped bail before sentencing.

According to Janklow, the article defames him by implying that he began prosecuting Banks in revenge for the instigation of the tribal charges, when in fact Janklow, serving as special prosecutor, had initiated proceedings against Banks prior to the resurrection of the rape allegation and merely continued that prosecution as Attorney General.

Our analysis begins with the question of precision. The statement (that plaintiff "was prosecuting Banks" eight months after the tribal court's unfavorable finding) is not precise. It does not say in so many words that Janklow's motive was revenge. It does not say in so many words that the prosecution was commenced after the tribal court's decision. It certainly does not suggest that Banks had done nothing to warrant prosecution for riot and assault. It says only that the prosecution was going on eight months after the tribal court's decision, and no one can deny that that is true. The imputation of improper motive must be drawn from...

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