Neumann v. Liles

• Decision Date: 03 March 2016
• Docket Number: CA A149982,SC S062575.,CC 121103711
• Citation: 369 P.3d 1117,358 Or. 706
• Parties: Carol C. NEUMANN and Dancing Deer Mountain, LLC, an Oregon domestic limited liability company, Respondents on Review, v. Christopher LILES, Petitioner on Review.
• Court: Oregon Supreme Court

358 Or. 706

369 P.3d 1117

Carol C. NEUMANN and Dancing Deer Mountain, LLC, an Oregon domestic limited liability company, Respondents on Review,

v.Christopher LILES, Petitioner on Review.

CC 121103711

CA A149982

SC S062575.

Supreme Court of Oregon.

Argued and Submitted May 12, 2015.

Decided March 3, 2016.

Linda K. Williams, Portland, argued the cause and filed the brief for petitioner on review.

No appearance contra.

Derek D. Green, Davis Wright Tremaine LLP, Portland, filed the brief for amici curiae Reporters Committee for Freedom of the Press, City of Roses Newspaper Company (dba Willamette Week), Gannett Co., Inc., Meredith Corporation (dba KPTV), Oregon Association of Broadcasters, Oregon Newspaper Publishers Association, Oregon Public Broadcasting, Oregonian Publishing Company LLC (dba The Oregonian Media Group), and Western Communications, Inc. (dba The Bulletin of Bend).

Daniel W. Meek, Portland, filed the brief for amicus curiae Policy Initiatives Group.

Before BALMER, Chief Justice, and KISTLER, WALTERS, LANDAU, BREWER, and BALDWIN, Justices, and LINDER, Senior Judge.^**

BALDWIN, J.

This case requires us to decide whether a defamatory statement made in an online business review is entitled to protection under the First Amendment. To make that decision, we follow the test developed by the Ninth Circuit in Unelko Corp. v. Rooney, 912 F.2d 1049 (9th Cir.1990), cert. den., 499 U.S. 961, 111 S.Ct. 1586, 113 L.Ed.2d 650 (1991), to determine whether a reasonable factfinder could conclude that an allegedly defamatory statement touching on a matter of public concern implies an assertion of objective fact and is therefore not constitutionally protected. Applying that test, we conclude that the online review at issue in this case is entitled to First Amendment protection. We therefore reverse the decision of the Court of Appeals to the contrary and remand the case to the Court of Appeals to resolve a disputed attorney fee issue.

I. BACKGROUND

Plaintiff Carol Neumann (Neumann) is an owner of plaintiff Dancing Deer Mountain, LLC (Dancing Deer Mountain), a business that arranges and performs wedding events at a property owned by Neumann. Defendant, Christopher Liles (Liles), was a wedding guest who attended a wedding and reception held on Neumann's property in June 2010. Two days after those events, Liles posted a negative review about Neumann and her business on Google Reviews, a publicly accessible website where individuals may post comments about services or products they have received.

The review was entitled, "Disaster!!!!! Find a different wedding venue," and stated:

"There are many other great places to get married, this is not that place! The worst wedding experience of my life! The location is beautiful the problem is the owners. Carol (female owner) is two faced, crooked, and was rude to multiple guest[s]. I was only happy with one thing. It was a beautiful wedding, when it wasn't raining and Carol and Tim stayed away. The owners did not make the rules clear to the people helping with set up even when they saw something they didn't like they waited until the day of the wedding to bring it up. They also changed the rules as they saw fit. We were told we had to leave at 9pm, but at 8:15 they started telling the guests that they had to leave immediately. The ‘bridal suite’ was a tool shed that was painted pretty, but a shed all the same. In my opinion [s]he will find a why [sic ] to keep your $500 deposit, and will try to make you pay even more."

A few months later, Neumann and Dancing Deer Mountain filed a defamation claim for damages against Liles.¹ Liles then filed a special motion to strike under ORS 31.150, Oregon's Anti–Strategic Lawsuits Against Public Participation (anti-SLAPP) statute.² Specifically, Liles based his motion on provisions of ORS 31.150(2) relating to cases involving statements presented "in a place open to the public or a public forum in connection with an issue of public interest" or "other conduct in furtherance of * * * the constitutional right of free speech in connection with a public issue or an issue of public interest." ORS 31.150(2)(c), (d). In response, Neumann and Dancing Deer Mountain submitted evidence to support a prima facie case of defamation, as required by ORS 31.150(3).

After a hearing, the trial court allowed Liles's motion to strike and entered a judgment of dismissal of Neumann's defamation claim without prejudice. ORS 31.150(1) (so providing when trial court grants special motion to strike). Neumann appealed, assigning error to the trial court's ruling.

The Court of Appeals reversed the judgment, reasoning that "the evidence submitted by plaintiffs, if credited, would permit a reasonable factfinder to rule in Neumann's favor on the defamation claim, and the evidence submitted by [Liles] does not defeat Neumann's claim as a matter of law." Neumann v. Liles, 261 Or.App. 567, 575, 323 P.3d 521 (2014). The court focused its analysis on whether Liles's statements were capable of a defamatory meaning—that is, whether his statements falsely ascribed to Neumann conduct incompatible with the proper conduct of a wedding venue operator.

Id. at 576–77, 323 P.3d 521. The court concluded that several of Liles's statements, such as his statements that Neumann was "rude to multiple guest [s]," that she is "crooked," and that she "will find a[way] to keep your $500 deposit," could reasonably be interpreted as defamatory. Id. The court therefore concluded that the trial court had erred when it struck Neumann's defamation claim. Id.³

In so concluding, the Court of Appeals rejected Liles's arguments that "his statements were nonactionable opinion" and that "his statements are not defamatory because, in his view, the context of the statements demonstrates that they are figurative, rhetorical, or hyperbolic." Id. at 578, 323 P.3d 521. In the court's view, Liles's statements were not protected as opinion, because they "reasonably could be understood to state facts or imply the existence of undisclosed defamatory facts." Id. The court also disagreed with Liles that his statements were, as a whole, hyperbolic. Rather, the court concluded that Liles had included various factual details in his review and that a reasonable reader therefore would not interpret his statements to be "mere hyperbole." Id. at 578–79, 323 P.3d 521.

We allowed Liles's petition for review to determine how an actionable statement of fact is distinguished from a constitutionally protected expression of opinion in a defamation claim and whether the context in which a statement is made affects that analysis.

II. ANALYSIS

On review, Liles argues that his online review of Neumann's venue is entitled to protection under the First Amendment.⁴ Specifically, he contends that his review, when read in the context of informal online communication, is properly understood as expressing merely his subjective opinion about the venue that he was reviewing. He also contends that the statements in his review are not provable as true or false. Regarding the words that the Court of Appeals concluded to be capable of defamatory meaning, such as "rude" and "crooked," he argues that those words are too vague to imply an assertion of fact.⁵

Although our determination of the legal sufficiency of Neumann's defamation claim hinges on whether Liles's statements are protected under the First Amendment, we begin our analysis by examining the common-law origins of the tort.

A. Common Law of Defamation

This court has recognized a common-law action for defamation for injury to reputation for over 150 years. See Hurd v. Moore, 2 Or. 85 (1863) (false statement by defendant that plaintiff had burned defendant's house). The roots of that tort run even deeper: the English common law had recognized the tort of defamation long before the formation of the American republic. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 11, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) ("Since the latter half of the 16th century, the common law has afforded a cause of action for damage to a person's reputation by the publication of false and defamatory statements.") (citing L. Eldredge, Law of Defamation 5 (1978)).

To establish a claim for defamation, a plaintiff must show that a defendant made a defamatory statement about the plaintiff and published the statement to a third party. Wallulis v. Dymowski, 323 Or. 337, 342–43, 918 P.2d 755 (1996) (so holding). A defamatory statement is one that would subject the plaintiff "to hatred, contempt or ridicule * * * [or] tend to diminish the esteem, respect, goodwill or confidence in which [the plaintiff] is held or to excite adverse, derogatory or unpleasant feelings or opinions against [the plaintiff]." Farnsworth v. Hyde, 266 Or. 236, 238, 512 P.2d 1003 (1973) (internal quotation marks omitted). In the professional context, a statement is defamatory if it falsely "ascribes to another conduct, characteristics or a condition incompatible with the proper conduct of his lawful business, trade, [or] profession." Brown v. Gatti, 341 Or. 452, 458, 145 P.3d 130 (2006) (internal quotation marks omitted).

Some defamatory statements are actionable per se —that is, without proof of pecuniary loss or special harm. Libel, that is, defamation by written or printed words, is actionable per se. Hinkle v. Alexander, 244 Or. 267, 277, 417 P.2d 586 (1966) (on rehearing). Slander, which is defamation by spoken words, also may be actionable per se under certain circumstances. For instance, spoken words that injure a plaintiff in his or her profession or trade may constitute slander per se. See, e.g., Wheeler v. Green, 286 Or. 99, 124, 593 P.2d 777 (1979) (where defendant accuses plaintiff of misconduct or dishonesty in performance of plaintiff's profession or employment, matter is "actionable without proof of specific harm"); see also Barnett v. Phelps, 97 Or. 242, 244–45, 191 P. 502 (1920) (discussing classes of spoken words that are actionable per se ).

At early common law,...