Obsidian Fin. Grp., LLC v. Cox

• Citation: 812 F.Supp.2d 1220
• Decision Date: 23 August 2011
• Docket Number: No. 3:11–CV–00057–HZ.,3:11–CV–00057–HZ.
• Parties: OBSIDIAN FINANCE GROUP, LLC, and Kevin D. Padrick, Plaintiffs, v. Crystal COX, Defendant.
• Court: U.S. District Court — District of Oregon

812 F.Supp.2d 1220

OBSIDIAN FINANCE GROUP, LLC, and Kevin D. Padrick, Plaintiffs,

v.Crystal COX, Defendant.

No. 3:11–CV–00057–HZ.

United States District Court, D. Oregon.

Aug. 23, 2011.

Steven M. Wilker, David S. Aman, Tonkon Torp LLP, Portland, OR, for Plaintiffs.

Crystal L. Cox, Eureka, MT, Defendant Pro Se.

SUPPLEMENTAL OPINION & ORDER

HERNANDEZ, District Judge:

Plaintiffs Obsidian Finance Group, LLC and Kevin Padrick bring this defamation action against defendant Crystal Cox. In a July 7, 2011 Opinion & Order, 2011 WL 2745849 I denied plaintiffs' motion for partial summary judgment on the issue of liability after determining that the challenged statements were protected by the First Amendment.

Defendant did not cross-move for summary judgment. However, given my conclusion, I gave notice in the July 7, 2011 Opinion that I intended to grant summary judgment for defendant “independent of the motion.” See Fed.R.Civ.P. 56(f). I gave plaintiffs the opportunity to file an opposition to such action. On July 22, 2011, plaintiffs filed a memorandum in opposition to a grant of summary judgment in favor of defendant. Although defendant was given the opportunity to reply to plaintiffs' opposition, she has not done so.

Plaintiffs seek reconsideration of my conclusion that the First Amendment precludes liability for the statements made by defendant. In support, plaintiffs cite relevant legal authority for the first time. Plaintiffs re-submit the blog posts filed with their original summary judgment motion. They also submit additional blog posts that were not included with their previous motion. To the extent plaintiffs' July 22, 2011 Opposition Memorandum addresses newly-submitted blog posts, I construe it as a supplemental motion for summary judgment.

The July 7, 2011 Opinion contains the background of the dispute and quotes all of the previously-submitted blog posts. I do not repeat that information here. As to my legal conclusion, I held that under the relevant three-part test used by the Ninth Circuit to determine if speech is constitutionally protected by the First Amendment as “opinion,” meaning that a reasonable factfinder could not conclude that the challenged statements implied a provably false assertion, the statements were protected. July 7, 2011 Op. at pp. 11–14. I noted the obviously critical blog title on which they appeared, the creation of a forum for “heated debate,” the extensive use of hyperbolic and figurative language, and the posing of several questions rather than statements, as evidence that when the totality of circumstances were considered, the statements were not actionable assertions of fact. Id. I further noted that while there were some statements that could be reasonably interpreted as implying a provable factual assertion if considered in isolation, they could not be so reasonably interpreted when they were considered in context. Id. at pp. 12–13.

Plaintiffs argue that the general tenor of the websites supports, rather than negates, the impression that defendant was asserting claims of serious civil and criminal misconduct as objective facts, that defendant did not use hyperbole or figurative language when making the defamatory statements, and that defendant's statements are susceptible of being proved true or false based on objective evidence. I have reviewed all of the blog posts plaintiffs submitted in support of their original summary judgment motion in light of the arguments they make in their July 22, 2011 Opposition Memorandum. However, I adhere to my original conclusion regarding those posts and thus, for the reasons explained in the July 7, 2011 Opinion, I grant summary judgment to defendant on the issue of liability for statements made in the blog posts plaintiffs submitted with their original motion.

With one exception discussed below, I also reach the same conclusion regarding the new posts plaintiffs submitted for the first time with their July 22, 2011 Opposition Memorandum.

As I explained in the July 7, 2011 Opinion, in assessing whether a statement is actionable as an assertion of fact or is protected by the First Amendment as “opinion,” the Ninth Circuit has held that after Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), where the Supreme Court rejected a bright-line categorical First Amendment protection for “opinions,” the “threshold question” in a defamation claim is “whether a reasonable factfinder could conclude that the contested statement implies an assertion of objective fact.” Gardner v. Martino, 563 F.3d 981, 987 (9th Cir.2009) (internal quotation omitted). The Ninth Circuit uses a three-part test to determine whether a statement contains or implies a provable factual assertion. Underwager v. Channel 9 Austl., 69 F.3d 361, 366 (9th Cir.1995). Whether a statement is a statement of opinion or one of fact is a question of law. Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1193 (9th Cir.1989); Slover v. Or. St. Bd. of Clinical Social Workers, 144 Or.App. 565, 568, 927 P.2d 1098, 1100 (1996).

The test assesses (1) whether in the broad context, the general tenor of the entire work, including the subject of the statements, the setting, and the format, negates the impression that the defendant was asserting an objective fact; (2) whether the context and content of the specific statements, including the use of figurative and hyperbolic language, and the reasonable expectations of the audience, negate that impression; and (3) whether the statement is sufficiently factual to be susceptible of being proved true or false. Gardner, 563 F.3d at 987; Underwager, 69 F.3d at 366.

While the inquiry in any given case is fact-specific, certain themes are discernable and worth noting here. First, statements made as part of an acknowledged heated debate often negate the impression that the defendant was asserting an objective fact. E.g., Gardner, 563 F.3d at 988 (radio talk show program that included drama, hyperbolic language, opinionated and arrogant host, and heated controversy reduced audience's expectation of learning an objective fact); Underwager, 69 F.3d at 366–67 (fact that statements were made at workshop which included speakers on opposite sides of the “heated debate” over child witness reliability, relevant to analysis); Info. Control Corp. v. Genesis One Computer Corp., 611 F.2d 781, 784 (9th Cir.1980) (in context of legal dispute, “the audience may anticipate efforts by the parties to persuade others to their position by use of epithets, fiery rhetoric or hyperbole, [and thus] language which generally might be considered as statements of fact may well assume the character of statements of opinion”) (internal quotations omitted); Art of Living Found. v. Does 1–10, No. 10–CV–05022–LHK, 2011 WL 2441898, at *7 (N.D.Cal. June 15, 2011) (readers less likely to view statements made on blogs with “heated discussion and criticism,” as assertions of fact); Nicosia v. De Rooy, 72 F.Supp.2d 1093, 1101 (N.D.Cal.1999) (readers less likely to view statements made as part of heated debate concerning a “bitter legal dispute” as assertions of fact).

Second, while generally, “online speech stands on the same footing as other speech,” In re Anonymous Online Speakers, 661 Fed.Appx. 1168, 1173, No. 09–71265, 2011 WL 61635, at *2 (9th Cir. Jan. 7, 2011), blogs ¹ are a subspecies of online speech which inherently suggest that statements made there are not likely provable assertions of fact. E.g., Art of Living Found., 2011 WL 2441898, at *7 (statements made on obviously critical blog with “heated” discussion and criticism less likely to be viewed as assertions of fact); Nicosia, 72 F.Supp.2d at 1101 (statements made on personal website and through online discussion group less likely to be seen as assertions of fact); see also Too Much Media, LLC v. Hale, 206 N.J. 209, 234–35, 20 A.3d 364, 378–79 (2011) (noting that “online message boards provide virtual, public forums for people to communicate with each other about topics of interest” and “promote a looser, more relaxed communication style”) (internal quotation and brackets omitted); Sandals Resorts Int'l, Ltd. v. Google, Inc., 925 N.Y.S.2d 407, 415–16, 86 A.D.3d 32, 43–44 (N.Y.App.Div.2011) (noting that the “low barrier to speaking online allows anyone with an Internet connection to publish his thoughts, free from the editorial constraints that serve as gatekeepers for most traditional media of disseminating information [ ] [o]ften result[ing] in speech characterized by grammatical and spelling errors, the use of slang, and, in many instances, an overall lack of coherence”; observing that readers give less deference to allegedly defamatory remarks published on online message boards, chat rooms, and blogs, than to similar remarks made in other contexts) (internal quotation omitted).

Third, courts have frequently found certain terms suggestive of name calling, exaggeration, ridicule, imaginative expression, or subjective evaluation, and not assertions or implications of provable facts. E.g., Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers v. Austin, 418 U.S. 264, 284–85, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974) (statement calling plaintiffs “traitors” not libelous when context showed used figuratively); Greenbelt Coop. Publ'g Ass'n v. Bresler, 398 U.S. 6, 14, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970) (word “blackmail” no more than “rhetorical hyperbole”); Lieberman v. Fieger, 338 F.3d 1076, 1080 (9th Cir.2003) (comments that individual was “Looney Tunes,” “crazy,” “nuts,” and “mentally imbalanced,” did not contain verifiable assertions, and thus could not serve as basis for defamation claim); Beverly Hills Foodland, Inc. v. United Food & Commercial Workers Union, 39 F.3d 191, 196 (8th Cir.1994) (“ ‘Unfair’ is a term requiring a subjective determination and is therefore incapable of factual proof”); Phantom Touring, Inc. v. Affiliated Publ'ns, 953 F.2d 724, 728 (1st Cir.1992) (...