Riley v. Moyed
| Decision Date | 13 January 1987 |
| Citation | 529 A.2d 248 |
| Parties | 14 Media L. Rep. 1379 John S. RILEY, Plaintiff Below, Appellant, v. Ralph S. MOYED and Gannett Co., Inc., Defendants Below, Appellees. . Submitted: |
| Court | United States State Supreme Court of Delaware |
Upon appeal from Superior Court. Affirmed.
Christopher J. Curtin (argued), H. Murray Sawyer, Jr., and Bruce C. Herron, of Sawyer & Akin, P.A., Wilmington, for appellant.
Richard G. Elliott, Jr. (argued) and Charles M. Cochran IV of Richards, Layton & Finger, Wilmington, for appellees.
Before CHRISTIE, C.J., HORSEY and MOORE, JJ.
In this action for libel, plaintiff, John S. Riley, appeals Superior Court's grant of defendants', Gannett Company, Inc., owner of The Morning News, and writer Ralph S. Moyed, motion for summary judgment. We affirm.
* * *
The alleged libel was contained in Moyed's column published in Wilmington, Delaware in the Morning News on November 18, 1983. In the column, Moyed accused certain New Castle County politicians of allowing the zoning process in the County to degenerate into private battles between commercial interests and criticized several politicians for their ties with special interests. Moyed stated that John Riley, then a member of the New Castle County Council, and hence a public figure, had "enjoyed a golf outing with developer Albert Marta," and afterwards "seemed more understanding of Marta's plan for turning the Brandywine Country Club into a regional shopping center--and Concord Pike into a parking lot." Later in the column, Moyed stated that he did not "think that anyone could buy ... John Riley for 18 holes of golf" and that "[he] doubt[ed] that many citizens would want to spend half a day playing golf with some minor politicians...."
The Superior Court granted summary judgment in favor of Moyed and Gannett. 1 The Court found that, aside from the statement that Riley had enjoyed a golf outing with Marta, the references to Riley were protected expressions of opinion. The Court then ruled that the golf outing statement, though false in its implication of a recent outing, was incapable of a defamatory meaning and, in any event, the statement was substantially true. Relying on section 566 of the Restatement (Second) of Torts, the Court concluded that opinions based on nondefamatory facts do not give rise to an action for libel.
Before a public figure such as Riley can recover from a news publisher in a libel action, he must show by clear and convincing evidence that the defendant published defamatory falsehoods with actual malice. Bose Corp. v. Consumers Union, 466 U.S 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984); New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Furthermore, a public figure has the burden of showing falsity. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986).
However, before a Court reaches the question of actual malice, it must determine two questions of law: first, whether alleged defamatory statements are expressions of fact or protected expressions of opinion; and two, whether the challenged statements are capable of a defamatory meaning. 2 If a court determines that the statements are protected expressions of opinion or that they are not capable of a defamatory meaning, it will not reach the actual malice issue or need to inquire into the defendant's state of mind. Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979). That principle governs this case.
Pure expressions of opinion are protected under the First Amendment. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). 3 As the Supreme Court stated in Gertz:
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 facts.
Id. at 339-40, 94 S.Ct. at 3007.
A pure opinion is one that is based on stated facts or facts that are known to the parties or assumed by them to exist. Dairy Stores, Inc. v. Sentinel Publishing Co., 104 N.J. 125, 516 A.2d 220, 231 (1986); Kotlikoff v. The Community News, 89 N.J. 62, 444 A.2d 1086, 1089 (1982). In contrast, a "mixed" opinion is one that is not based on facts that are stated or assumed by the parties to exist. Dairy Stores, supra; Kotlikoff, supra. Thus, a defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion. Kotlikoff, supra; Restatement (Second) of Torts § 566 (1977). (See section II B below.)
In analyzing whether a particular statement is an expression of fact or opinion and, if opinion, whether pure or mixed, we must consider it from the perspective of an ordinary reader of the statement. Mr. Chow of New York v. Ste. Jour Azur S.A., 2 Cir., 759 F.2d 219, 224 (1985); Ollman v. Evans, D.C.Cir., 750 F.2d 970, 979 n. 16 (1984) (en banc), cert. denied, 471 U.S. 1127, 105 S.Ct. 2662, 86 L.Ed.2d 278 (1985). It is also well settled that the determination of whether a statement is opinion as opposed to a factual representation is a question of law. Slawik v. News-Journal Co., Del.Supr., 428 A.2d 15, 17 (1981). See also Mr. Chow, supra at 224; Ollman, supra at 978.
In Ollman, supra, the Court developed a four-part test to determine whether the average reader would view a statement as one of fact or one of opinion. 750 F.2d at 979-85. First, the Court should analyze the common usage or meaning of the challenged language. Id at 979. Second, the Court should determine whether the statement can be objectively verified as true or false. Id. at 981. Third, the Court should consider the full context of the statement. Id. at 982. Fourth, the Court should consider the broader social context into which the statement fits. Id. at 984.
Applying the Ollman test to the facts of this case, we conclude that, other than the statement that Riley had played golf with Marta, Moyed's statements about Riley are constitutionally protected expressions of pure opinion.
First, as to the meaning of the specific language used in the challenged statements, Riley asserts that it implies that he was guilty of profiteering and receiving unlawful gratuities, both of which are crimes under the Delaware Code. See 11 Del.C. §§ 1212(3) and 1206. 4 We disagree that an ordinary reader would draw such an inference from the statements. There is no implication in the column that Riley received any benefit, pecuniary or otherwise, which is a necessary element of both profiteering and the receipt of unlawful gratuities. Rather, the common meaning of the challenged language is that, in Moyed's opinion, Riley and a number of other politicians spent more time listening to developers than to their constituents.
"A statement regarding (1) a public official's business, social, or political affiliations, and (2) how those affiliations seem reflected in decision-making hardly constitutes a libelous charge of bribery and corruption." Okun v. Superior Court of Los Angeles County, 29 Cal.3d 442, 175 Cal.Rptr. 157, 629 P.2d 1369, 1374 (en banc), cert. denied, 454 U.S. 1099, 102 S.Ct. 673, 70 L.Ed.2d 641 (1981). A contrary ruling would inhibit a significant segment of discourse vital in a democracy. Id. In this case, "even the most careless readers must have perceived that the [words were] no more than rhetorical hyperbole." Greenbelt Cooperative Publishing Ass'n v. Bresler, 398 U.S. 6, 14, 90 S.Ct. 1537, 1542, 26 L.Ed.2d 6 (1970).
Second, it is also apparent that the challenged statements, other than the golf outing statement, cannot be objectively verified. An ordinary reader trying to determine whether after a golf game with Marta, Riley "seemed more understanding" of Marta's plan, would have an impossible task of objectively verifying its truth or falsity and would be left with nothing but his own subjective impression of how Riley "seemed." Therefore, a reader cannot rationally view an unverifiable statement as conveying actual facts. Ollman, 750 F.2d at 981.
Third, considering the full context of the statements, it is reasonable to conclude that average readers of the Morning News are familiar with Moyed's disparaging style of writing. Moyed has been a full-time writer-commentator with the Morning News since 1978. He is a well-known professional provocateur who relies on heavy sarcasm to create controversy or convey a message. Readers expect that commentators such as he will make strong statements, sometimes phrased in a polemical manner that would hardly be considered balanced or fair elsewhere as a news reporting column. Id. at 986. "[I]t is [also] well understood that editorial writers and commentators frequently resort to the type of caustic bombast traditionally used in editorial writing to stimulate public reaction." Id. at 984. Furthermore, the constitutional protection afforded statements of opinion is not lost simply because the opinion is expressed through the use of figurative or hyperbolic language. Mr. Chow, 759 F.2d at 223. Thus, viewed in the context of the entire article, Moyed's writing style and purpose were obviously on display and ordinary readers would be unwilling to infer factual content into his statements.
Fourth, considering the broader social context in which the column appeared, i.e., that it addressed a current topic of ongoing public debate over a perceived excessive amount of development in the Concord Pike area of the County, language which might otherwise be considered statements of fact have here assumed the character of statements of opinion. Okun, supra at 1374. 5
Therefore, based upon the foregoing analysis, we find that other than the statement that Riley had played golf with Marta, Moyed's...
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