Myers v. Plan Takoma, Inc.

• Decision Date: 19 December 1983
• Docket Number: No. 83-251.,83-251.
• Citation: 472 A.2d 44
• Parties: Paul F. MYERS, et al., Appellants, v. PLAN TAKOMA, INC., et al., Appellees.
• Court: D.C. Court of Appeals

Page 44

472 A.2d 44

Paul F. MYERS, et al., Appellants, v. PLAN TAKOMA, INC., et al., Appellees.

No. 83-251.

District of Columbia Court of Appeals.

Submitted October 26, 1983.

Decided December 19, 1983.

Benjamin B. Brown, Rockville, Md., for appellants.

Scott B. Schreiber and Boris Feldman, Washington, D.C., for appellees.

Before KERN, MACK and TERRY, Associate Judges.

PER CURIAM:

Appellants Poling, Myers and Miller brought a libel action in the trial court against a neighborhood association called Plan Takoma, Inc. (Association) and others asserting that a statement made in a leaflet distributed by the Association (in its effort to block the issuance of a liquor license to appellants to establish a bar in the neighborhood) was untruthful.¹ The Association and the other appellees² filed a motion to dismiss the complaint on the grounds that the statement is protected by the First Amendment right to petition, that the statement is not capable of a defamatory meaning, that the statement is a constitutionally protected statement of opinion and that the complaint failed to allege that the statement was "of and concerning" appellants. (Record at 7.) After oral argument, the trial court issued a memorandum opinion and order dismissing the complaint for failure to state a claim upon which relief can be granted.

We are persuaded by Judge Weisberg's comprehensive and well-reasoned memorandum opinion, which we adopt and attach hereto as an Appendix, that the complaint was properly dismissed.³

Affirmed.

APPENDIX

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

Civil Division

Civil Action No. 3758-82

PAUL F. MYERS, et al., PLAINTIFFS

v.

PLAN TAKOMA, INC., et al., DEFENDANTS

MEMORANDUM AND ORDER

Plaintiffs bring this action for libel based on an allegedly defamatory statement made in the attached leaflet, which was published by defendants for the purpose of arousing community sentiment against plaintiffs' application for an ABC license for a neighborhood bar. Plaintiffs have alleged that the description of them in the leaflet as "a shady group of bar owners" implied dishonesty and illicit activity and, as such, constituted an actionable defamatory statement. Defendants have moved to dismiss the complaint for failure to state a claim on the grounds that: (1) the statement was made in the context of a petition to the government on an issue of public importance, and therefore that it was absolutely privileged under the First Amendment; (2) the statement is not capable of a defamatory meaning and, if it were, is nonetheless constitutionally protected as a mere statement of opinion; (3) the statement did not name the plaintiffs or identify them in such a way as to be "of and concerning" plaintiffs for purposes of an action for libel.

It is not disputed that the allegedly defamatory statement was published in the leaflet as part of an effort to influence the Alcohol Beverage Control Board to deny plaintiffs an ABC license to operate a bar/restaurant in defendants' neighborhood. Defendants contend, based on an impressive array of case support, that statements published in the exercise of a citizen's fundamental right to petition government, even if otherwise defamatory, are absolutely privileged under the First Amendment and can not be the basis of an action for libel. But the court need not go so far as to recognize an absolute privilege in this case.¹ Based on the submissions of the parties and the arguments of counsel at the hearing on defendants' motion to dismiss, the court concludes that plaintiffs have failed to state a claim for libel on which relief may be granted because the allegedly defamatory statement is a constitutionally protected statement of opinion.²

Expressions of opinion are entitled to constitutional protection unless they imply the existence of undisclosed defamatory facts as the basis of the opinion. "Under 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." Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 [94 S.Ct. 2997, 3006-07, 41 L.Ed.2d 789] (1974). See also Restatement (Second) of Torts § 566 (1977).

In deciding whether the challenged statement is entitled to the constitutional protection covering opinions, the court must determine whether the statement is one of fact or one of opinion. Some statements are obviously on one side of the line or the other, but it is not always a simple matter to distinguish actionable statements of fact from constitutionally protected statements of opinion. The test requires the court to examine the allegedly defamatory words in the context of the entire document in which they appear. Even where it appears that the words, in context, are merely a statement of opinion, the court must also determine whether the opinion could be said to imply undisclosed defamatory facts. In addition, the court must consider whether the allegedly defamatory words are susceptible to proof of their truth or falsity. Statements that can not readily be proven true or false are, of course, more likely to be viewed as statements of opinion, not fact. Finally, the court must consider the context in which the document containing the allegedly defamatory reference is published. Absolute privilege aside, in the course of legitimate debate over issues of public importance, offensive rhetoric on the borderline between fact and opinion is to be expected, and such statements are much more deserving of constitutional protection than similar statements made for purely private motives. Information Control Corp. v. Genesis One Computer Corp., supra, 611 F.2d at 784; Buckley v. Littell, 339 [539] F.2d 882, 894 (2d Cir.1976); cert. denied, 429 U.S. 1062 [97 S.Ct. 786, 50 L.Ed.2d 777] (1977); Rinaldi v. Holt, Rinehart & Winston, Inc., 397 N.Y S.2d 943, 950, 42 N.Y.2d 369, 376, 366 N.E.2d 1299, 1306 (1977).

Applying the criteria enumerated above to the facts of the case at bar, the court must look first to the allegedly defamatory statement as it appears in the leaflet. The only portion of the leaflet alleged to be defamatory is the opening phrase, "a shady group of bar owners." While it may be true that this offensive epithet in another context might connote some degree of dishonesty, in the context in which it appeared it is highly unlikely that any reader would have taken it as anything other than "rhetorical hyperbole." See Greenbelt Cooperative Publishing Ass'n v. Bresler, supra, 398 U.S. at 13-14 . Moreover, whatever definition or interpretation might be ascribed to the word "shady" in other contexts, here it was immediately followed by a description of other drinking establishments in which the bar owners, or some of them, were said to have an interest, and that juxtaposition served to define what the authors of the leaflet meant by their use of the term. Taken in context, then, it seems rather clear that the authors of the leaflet were intending simply to state their opinion of plaintiffs' character based on plaintiffs' other business associations.

Even as a statement of opinion, defendants' use of the term "shady" is entitled to constitutional protection only if, in context, it does not imply the existence of undisclosed defamatory facts. See Gertz v. Robert Welch, Inc., supra, 418 U.S. at 339 ; Ollman v. Evans, 479 F.Supp. 292 (D.D.C.1979);³ Restatement (Second) of Torts § 566 (1977). Here, however, the facts on which the opinion "shady" was based were fully disclosed in the leaflet. There is no suggestion in the leaflet that the authors relied on any privately-held information outside of what was stated in the publication to substantiate the comments made about the plaintiffs therein. Cf. Kutz v. The Independent Publishing Co., Inc., 97 N.M. 243, 246, 638 P.2d 1088, 1091 (N.M.Ct.App.1981). Whether or not the stated facts demonstrated that the bar owners were in fact "shady" — that is to say, whether or not the opinion was justified by the stated facts — the facts on which the opinion was based were neither undisclosed nor themselves defamatory.

The second step in the court's analysis of whether the statement is opinion or fact is to determine if the word "shady" can readily be proven true or false. If the content of the terms used "is so debatable, loose and varying, that they are insusceptible to proof of truth or falsity," the use of the terms will ordinarily be held to be within the realm of protected opinion. Buckley v. Littell, supra, 539 F.2d at 894; see also Ollman v. Evans, supra, 479 F.Supp. at 294. Here, the term "shady" is not readily susceptible to proof of its truth or falsity. It is not a word laden with factual content, such as a charge of serious criminal conduct. Compare Cianci v. New Times Pub. Co., 639 F.2d 54, 63 (2d Cir.1980) (accusation of rape and obstruction of justice held to be actionable) with Marchiondo v. New Mexico State Tribune Co., , 648 P.2d 321, 331 (N.M.Ct.App.1981) (accusation of cronyism held not to be actionable). It is an expression of the author's opinion of plaintiffs' reputation, and it would be, to say the least, difficult to prove or disprove.

Finally, the court must consider the context in which the leaflet was published. "Erroneous opinions are inevitably put forward in free debate but even the erroneous opinion must be protected so that debate on public issues may remain robust and unfettered and concerned individuals may have the necessary freedom to speak their conscience. * * * `Any risk that full and vigorous exposition and expression of opinion on matters of public interest may be stifled must be given great weight. In areas of doubt and conflicting considerations, it is thought better to err on the side of free speech.'" Rinaldi v. Holt, Rinehart & Winston, Inc., supra , 366 N.E.2d at 1306, 1308 (quoting in...