Lowell v. Wright
| Decision Date | 23 June 2022 |
| Docket Number | CC 13CV04582(SC S068129) |
| Parties | Tom LOWELL, dba Piano Studios and Showcase, Respondent on Review, v. Matthew WRIGHT and Artistic Piano, an Oregon corporation, Petitioners on Review. |
| Court | Oregon Supreme Court |
Tracy M. McGovern, Frohnmayer, Deatherage, Jamieson, Moore, Armosino & McGovern, P.C., Medford, argued the cause and filed the briefs for petitioners on review. Also on the briefs were Casey S. Murdock and Alicia M. Wilson.
Linda K. Williams, Portland, argued the cause and filed the brief for respondent on review.
Eugene Volokh, UCLA School of Law, First Amendment Clinic, Los Angeles, California, argued the cause and filed the brief for amici curiae Institute for Free Speech; Electronic Frontier Foundation; Professors William Funk, Ofer Raban, and Kyu Ho Youm; Howard Bashman; Scotusblog, Inc.; and Professors Glenn Harlan Reynolds and Eugene Volokh. Also on the brief was Owen Yeates, Institute for Free Speech, Washington, D.C.
James Abernathy and Rebekah Millard, Freedom Foundation, Olympia, Washington, filed the brief on behalf of amicus curiae Freedom Foundation.
Before Walters, Chief Justice, and Balmer, Flynn, Duncan, Nelson, and Garrett, Justices, and Nakamoto, Senior Judge, Justice pro tempore.**
Plaintiff's libel per se claim is based on a Google review, written by the manager of plaintiff's business competitor, that subsequently was removed from the internet without a trace. The Court of Appeals reversed a grant of summary judgment to defendants. We resolve three disputed legal questions: (1) whether plaintiff may reach a jury on his libel claim when the text is no longer available; (2) whether the First Amendment's public comment defense is available in these circumstances and, relatedly, whether a defendant speaker's identity or motive is part of the court's inquiry on the defense's availability; and (3) whether Oregon should require a plaintiff claiming defamation to prove that the defendant acted with a heightened culpable mental state, "actual malice," in all cases when the speech is on a "matter of public concern" protected under the First Amendment, abolishing the distinction that requires such proof only when the defendant is a member of the media.
The Court of Appeals concluded that the trial court had erred because plaintiff's evidence of the allegedly defamatory statements sufficed to create a question of fact for trial on his claim and the lack of the review's printed text did not affect the analysis of defendants’ First Amendment defense. Lowell v. Wright , 306 Or. App. 325, 334-35, 473 P.3d 1094 (2020). Putting aside the First Amendment defense, we, like the Court of Appeals, conclude that the lack of a copy of the review is not fatal to plaintiff's libel claim and that two of the three allegedly defamatory statements in the review are actionable.
To decide whether defendants were entitled to summary judgment based on their First Amendment defense, the threshold question is whether the review about plaintiff's store is subject to First Amendment protection as containing statements on a matter of public concern. As the Court of Appeals recognized, in Neumann v. Liles , 358 Or. 706, 369 P.3d 1117 (2016), this court held that a review of a wedding venue contained speech on a matter of public concern protected by the First Amendment's public comment defense, and the review of plaintiff's business in this case is similar to the review in Neumann . Although plaintiff argues that a speaker's motive may affect the availability of the defense, an argument that we reject, neither party has asked this court to overrule Neumann ’s holding. Accordingly, Neumann controls, and we are compelled to follow it in this case.
Finally, we decline to overrule our precedent recognizing the media/nonmedia distinction and to impose an across-the-board heightened proof-of-fault requirement on defamation plaintiffs in cases involving the First Amendment. Defendants and amici argue that we ought to abolish the distinction, in part, they assert, because it is sometimes difficult to discern whether a given speaker, such as a blogger, is a media or a nonmedia defendant. This case does not offer an opportunity for careful examination of that issue, considering that defendants are not "media" under any definition and acknowledge that they are "nonmedia" defendants, and defendants have not persuaded us to abandon our precedent and to alter Oregon common law.
Ultimately, we conclude that the trial court erred in granting defendants’ summary judgment motion and entering a general judgment of dismissal. We affirm the decision of the Court of Appeals in part and remand the case to the trial court.
We are reviewing the trial court's ruling granting defendants’ motion for summary judgment on plaintiff's claim for defamation. Accordingly, we recount the facts in the light most favorable to plaintiff as the nonmoving party, including reasonable inferences that may be drawn from the facts adduced. ORCP 47 C.
Plaintiff Lowell owns and operates Piano Studios and Showcase (Piano Studios), a piano store in Medford. On September 3, 2012, defendant Wright and his wife visited plaintiff's store. At that time, Wright was employed as a general manager by defendant Artistic Piano, another piano store in Medford.1 On the day of the visit, Wright was off work. Wright testified that he did not tell his boss, Werner, the owner and operator of Artistic Piano, about his plans to visit Piano Studios. Soon after the visit, Wright posted a Google review about Piano Studios.
In December 2012, while browsing internet pages mentioning his business, plaintiff found Wright's review and became upset. The review was not posted under Wright's name, but instead under "Amazing Impressions" (Wright's unrelated photography business). Plaintiff eventually found a phone number associated with Amazing Impressions and called it, instructing his employee, Norling, to listen to the phone call and take notes. Wright answered and eventually hung up on plaintiff.
After the phone call, Wright spoke with Werner and showed him the review. According to Wright, he had told Werner previously about his visit to Piano Studios but had not mentioned his review. Once Werner looked over the review, he suggested that Wright take it down. Wright removed it without saving a copy. Plaintiff also did not save a copy of the review before it was removed. Wright composed the review on a home laptop, which he disposed of, explaining that it had become old and inoperable. Despite a diligent search and a request to Google, the parties were unable to recover a copy of the review during litigation.
Although the actual text of the review is unavailable, four people read the review and testified in depositions regarding its contents: Lowell, Norling, Wright, and Werner. Although they could not remember the review verbatim, they largely agreed that it contained the following paraphrased content and that the quoted language (or something extremely close to it) appeared in the review itself: Wright walked around the store for 45 minutes before a salesperson spoke to him, and the store "smelled like grandma's attic." When he eventually spoke with Wright, the salesman told Wright that a Yamaha C-7 piano displayed on the showroom floor was about five years old. The salesman also told Wright that plaintiff can sell new Steinway pianos.2 However, plaintiff cannot sell new Steinway pianos, and "[there] were no new Steinways in the showroom," which is "like a Chevy dealer not having any Chevrolets on the lot." Finally, Wright had been warned about plaintiff's store and now knew that it was true that "this guy can't be trusted."
According to plaintiff, Wright not only made false statements—he made up the entire conversation at Piano Studios. Plaintiff's theory is that defendants’ purpose in having Wright go to Piano Studios and write the review was to "cybersmear," a practice whereby one business pseudonymously writes about a competitor on the internet to lower the competitor's reputation and thereby attract more business for itself. In support, plaintiff provided testimony from the salesman on duty the day Wright was in Piano Studios. Plaintiff's sales force kept time logs in which they recorded interactions with potential customers. The salesman's time log from that day does not reflect a conversation with Wright. And, the salesman testified, Wright never conversed with him about Steinways or the Yamaha piano on display. In further support of his theory, plaintiff emphasizes that Wright was the manager of Artistic Piano when he wrote the review, that the review was written under the name "Amazing Impressions" rather than under Wright's own name, and that the review included no details that would suggest that its writer had specialized knowledge or a potential ulterior motive.
In 2013, plaintiff filed a defamation action against Wright and Artistic Piano.3 He alleged that Wright acted as Artistic Piano's agent in writing the Google review. Plaintiff asserted that the review "purported to describe the personal experience of an actual customer" but that "Wright was not a bona fide potential customer." Plaintiff alleged that three statements in the review were false and defamatory assertions of fact:
In their answer, among other defenses, defendants asserted that the First Amendment precluded liability for libel.
In 2016, defendants filed a motion...
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