Steinhilber v. Alphonse

• Decision Date: 23 October 1986
• Citation: 508 N.Y.S.2d 901,501 N.E.2d 550,68 N.Y.2d 283
• Parties: , 501 N.E.2d 550, 123 L.R.R.M. (BNA) 2937, 65 A.L.R.4th 987, 55 USLW 2315, 1 IER Cases 1212, 13 Media L. Rep. 1562 Louise STEINHILBER, Appellant, v. John M. ALPHONSE, as President of the Communications Workers of America, Local 1120, Defendant, and Richard Martini et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 901

508 N.Y.S.2d 901

68 N.Y.2d 283, 501 N.E.2d 550, 123

L.R.R.M. (BNA) 2937,

65 A.L.R.4th 987, 55 USLW 2315, 1 IER

Cases 1212,

13 Media L. Rep. 1562

Louise STEINHILBER, Appellant, v. John M. ALPHONSE, as President of the Communications Workers

of America, Local 1120, Defendant,

and

Richard Martini et al., Respondents.

Court of Appeals of New York.

Oct. 23, 1986.

Jon A. Simonson and John F. Tobin, New Paltz, for appellant.

Stephen L. Fine, New York City, for respondents.

OPINION OF THE COURT

HANCOCK, Judge.

It is a settled rule that expressions of an opinion "false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions" (Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 380, 397 N.Y.S.2d 943, 366 N.E.2d 1299, cert. denied 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456). The question here is whether the Appellate Division has properly applied this rule in dismissing plaintiff's defamation action under CPLR 3211(a)(7) upon the ground that the two allegedly defamatory communications, complained of in separate causes of action, are pure opinions and, as such, not actionable as a matter of law.

I

The essential facts appear from plaintiff's complaint and her supplementary affidavit. Plaintiff was a member of defendant Communications Workers of America, Local 1120, and employed at New York Telephone Company in Saugerties, New York. On August 7, 1983 the union declared a strike. Plaintiff continued to work and did so as a union member in violation of the strike order and union rules until August 11, 1983 when she resigned from the union. In January 1984 the union assessed a fine against her for working during the strike, and, in March of that year, the membership authorized the officers of the union to take necessary steps to collect the fine which she had not paid.

The communication giving rise to plaintiff's first cause of action was a tape-recorded telephone message made by defendant Martini, vice-president of Local 1120, which played automatically on April 25, 1984 to anyone dialing the private telephone number provided to union members. (The union maintained a telephone answering and information service for its members.) The recorded message stated: "Wednesday, April 25th It is with amazement I report to you, the good membership of this union that Louise the scab Steinhilber has been named secretary of the week by a local radio station. Even further beyond comprehension is the fact that a union member, Barbara Van Etten, is the one who called the radio station to suggest Louise the scab be considered for what should be an honorable position. In Barbara's case, brains aren't everything. In fact, in her case they are nothing. She has a soft heart and a head to match. Louise the scab, years ago, she was an unknown failure. Now she is a known failure. She lacks only three things to get ahead, talent, ambition, and initiative. But she has friends. In fact, if you have her for a friend, you don't need any enemies. In times of trouble, she is waiting to catch you * * * bent over at the right angle. At least, she looks like a million, every year of it. Her boyfriend drinks ten cups of coffee a day to steady his nerves, just so he can look at her face. When she comes into a room, the mice jump up on chairs. But she could be a perfect model, for a shipbuilder. If she ever gets into an elevator, if she could fit in it, it better be going down. And, in case I haven't made my point, 1986 is closing in upon all of us. Let's choose our friends by their deeds. Only in solidarity can we expect to be successful. For the Communication Workers of America, Local 1120, this is Rick Martini."

Plaintiff bases her second cause of action on a banner displayed on August 11, 1983--during picketing activity--on the pickup truck of defendant Schatzel, the area representative of Local 1120. The words on the banner, which plaintiff concedes "formed a part of the protests," were:

"# 1 SCAB LOUISE STEINHILBER SUCKS"..

Defendants moved to dismiss both causes of action on two grounds: (1) that because the communications grew out of a labor dispute and were entitled to the protection afforded by section 7 of the National Labor Relations Act (29 U.S.C. § 158), the allegations of malice and of actual damage in the complaint were insufficient and the complaint was subject to dismissal under the rules established in Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 and Linn v. Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582; and (2) that, in any event, the communications were statements of pure opinion, not statements of fact or of mixed fact and opinion, and, as such, not actionable. Because it was not alleged that defendant Schatzel was connected in any way with the taped message or that defendant Martini had had anything to do with the display of the banner, Special Term dismissed the first cause of action as to Schatzel and the second as to Martini. In all other respects, it denied the motion.

The majority at the Appellate Division held that the banner, but not the taped message, was a communication made "in the context of a labor dispute" (115 A.D.2d 844, 845, 495 N.Y.S.2d 907). It did not, however, reach the question of the adequacy of the complaint under Letter Carriers v. Austin (supra) and Linn v. Plant Guard Workers (supra), because it concluded that both communications were statements of pure opinion and that the complaint should, for that reason, be dismissed. The Appellate Division, therefore, modified the order and granted the motion dismissing the complaint in its entirety. The dissenters at the Appellate Division would have denied the motion as to the first cause of action holding that the statement in the taped recorded message--"she lacks only three things to get ahead, talent, ambition, and initiative"--was an expression of mixed fact and opinion which, as distinguished from a statement of pure opinion, is actionable (115 A.D.2d 844, 847-848, 495 N.Y.S.2d 907).

For reasons which will appear, we agree with the majority at the Appellate Division that both statements in issue were expressions of pure opinion. The order dismissing the complaint should, therefore, be affirmed. We find it unnecessary to reach defendant's contentions that the statements arose out of a labor dispute and that the complaint does not contain the allegations of malice and actual damages required by Letter Carriers and Linn.

II

In addressing the decisive question, whether the statements are opinions and thus privileged, we observe that in framing the issue both parties have assumed the applicability of Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789. ¹ Under Gertz, if the statements are held to be expressions of opinion, they are entitled to the absolute protection of the First Amendment by virtue of the Supreme Court's categorical statement that: "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" (418 U.S. at pp. 339-340, 94 S.Ct. at p. 3007, supra ). ²

The rule to be applied may be simply stated. An expression of pure opinion is not actionable. It receives the Federal constitutional protection accorded to the expression of ideas, no matter how vituperative or unreasonable it may be (see, Rinaldi v. Holt, Rinehart & Winston, supra, 42 N.Y.2d at p. 380, 397 N.Y.S.2d 943, 366 N.E.2d 1299; Gertz v. Robert Welch, Inc., supra, 418 U.S. at pp. 339-349, 94 S.Ct. at pp. 3006-3011). A "pure opinion" is a statement of opinion which is accompanied by a recitation of the facts upon which it is based. An opinion not accompanied by such a factual recitation may, nevertheless, be "pure opinion" if it does not imply that it is based upon undisclosed facts (see, Ollman v. Evans, 750 F.2d 970, 976 cert. denied 471 U.S. 1127, 105 S.Ct. 2662, 86 L.Ed.2d 278; Buckley v. Littell, 539 F.2d 882, 893 cert. denied 429 U.S. 1062, 97 S.Ct. 785, 786, 50 L.Ed.2d 777; Restatement of Torts § 566 comment c). When, however, the statement of opinion implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, it is a "mixed opinion" and is actionable (see, Hotchner v. Castillo-Puche, 551 F.2d 910, 913 cert. denied sub nom. Hotchner v. Doubleday & Co., 434 U.S. 834, 98 S.Ct. 120, 54 L.Ed.2d 95; cf. Cianci v. New Times Pub. Co., 639 F.2d 54, 64, 65 ). ³ The actionable element of a "mixed opinion" is not the false opinion itself--it is the implication that the speaker knows certain facts, unknown to his audience, which support his opinion and are detrimental to the person about whom he is speaking. (Rand v. New York Times Co., 75 A.D.2d 417, 422, 430 N.Y.S.2d 271; cf. Silsdorf v. Levine, 59 N.Y.2d 8, 14, 462 N.Y.S.2d 822, 449 N.E.2d 716, where the complaint alleged not only that the opinion was defamatory but that the accompanying recitation of facts upon which it was based was either a "gross distortion" or "misrepresentation of fact".)

While it is clear that expressions of opinion receive absolute constitutional protection under Gertz, determining whether a given statement expresses fact or opinion may be difficult. The question is one of law for the court and one which must be answered on the basis of what the average person hearing or reading the communication would take it to mean (see, Rinaldi v. Holt, Rinehart & Winston, supra, 42 N.Y.2d at p. 381, 397 N.Y.S.2d 943, 366 N.E.2d 1299; Mr. Chow of N.Y. v. Ste. Jour Azur S.A., 759 F.2d 219, 227-228 ). There is no definitive test or set of criteria (see, Mr. Chow of N.Y. v. Ste. Jour Azur S.A., supra, at pp. 225-226). The essential task is to decide whether the words complained of, considered in the context of the entire communication and of the circumstances in which they were spoken or written,...