Yancey v. Hamilton
| Decision Date | 07 September 1989 |
| Docket Number | No. 88-SC-693-DG,88-SC-693-DG |
| Citation | 786 S.W.2d 854 |
| Parties | 17 Media L. Rep. 1012 Gregory Lynn YANCEY, Movant, v. Fred H. HAMILTON, et al., Respondents. |
| Court | United States State Supreme Court — District of Kentucky |
J.B. Rees, Gregory K. Berry, Florence, Ky., Raymond S. Bogucki, Augusta, Ky., for appellant.
Asa Rouse, Rouse, Benson & Koenig, P.S.C., Walton, Ky., for respondent, Fred H. Hamilton.
Richard G. Meyer, Deters, Benzinger & LaVelle, Covington, Ky., for remaining appellees.
The principal issue to be decided on this appeal is whether the publishing of a remark that an individual was a "con artist" is absolutely privileged as a statement of opinion under the First Amendment to the United States Constitution.
Movant Gregory Yancey sued respondents Fred Hamilton and The Kentucky Post and several of its employees in Boone Circuit Court for libel and invasion of privacy. The genesis of this action began with movant's arrest for double murder. The Post ran a feature story about Yancey's background as a "sidebar" to the news article about his arrest. Several neighbors and acquaintances were interviewed, among them, Fred Hamilton. The Post printed the following information and statements from the interview.
It was the last three statements to which movant objected. Yancey was later released on the murder charges, as he was wrongly suspected.
Granting respondents' joint pre-trial motion for summary judgment, the trial court held as a matter of law that Hamilton's comments were clearly statements of opinion, which The Post had an absolute privilege under the First Amendment to publish. The Court of Appeals affirmed the circuit court judgment. This Court granted discretionary review upon Yancey's motion.
Movant actually presents two allegations of error, both of which we will address. First, he claims the courts below erred in finding respondent published an absolutely privileged statement of opinion. Second, Yancey contends the trial court improperly dismissed his action without addressing his invasion of privacy claim; and the Court of Appeals erred in finding this was only harmless error, if any.
Appellant takes issue with the trial court's finding that respondents' statement calling movant a "con artist" is a constitutionally protected statement of opinion. In Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the United States Supreme Court elevated the common law privilege of "fair comment," which protected some statements of opinion about public issues from defamation actions, to constitutional status. The Court said:
The majority of federal circuits have accepted the Gertz dicta as controlling law, and have thus conferred absolute immunity on the publication of clear statements of opinion. 1 In the absence of definitive guidelines for distinguishing statements of fact from statements of opinion, or for otherwise determining whether a mixed statement falls into the category of protected speech, courts have struggled to fashion and apply various tests. 2
The trial court in the case at bar relied heavily on Ollman v. Evans, 750 F.2d 970 (D.C.Cir.1984), cert. denied, 471 U.S. 1127, 105 S.Ct. 2662, 86 L.Ed.2d 278 (1985), to determine whether Hamilton's statements about movant were actionable. Under the four-part test set out in Ollman, an alleged defamatory statement has sufficient factual content to be defamatory if: (1) the common usage of the statement "has a precise core of meaning for which a consensus of understanding exists," (2) the statement is objectively verifiable, (3) the full content of the statement would "influence the average reader's readiness to infer that a particular statement has factual context," and (4) the broader content in which the statement appears would signal the reader that the statement at issue has factual context. Id. at 979. Ollman held that the "distinction between opinion and fact is a matter of law." Id. at 978. Accordingly, the trial judge in the case sub judice applied the Ollman test to the legal issue to be decided. He found the statement that movant was a "con artist" to be mere opinion because the meaning of the term was indefinite, the truth or falsity of the label was not easily verifiable, the article as a whole was full of opinion about movant by those who knew him, and the article was a background piece to the factual article reporting movant's arrest for murder.
If we chose to adopt the Ollman approach used by the trial court, it is not at all clear that, as a matter of law, we would concur in the trial court's determination that respondents' statements amounted to a privileged expression of opinion. Nevertheless, we reject the Ollman test as applied by the trial court and, further, we disagree with the conclusion it reached.
The drafters of The Restatement (Second) of Torts developed a somewhat different approach to the fact-opinion distinction which we believe to be sound, and thus hereby adopt.
"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 fact as the basis for the opinion." Restatement (Second) of Torts Sec. 566 (1977) [hereinafter Restatement ].
The Restatement distinguishes between "pure" opinion and "mixed" expressions of opinion. Pure opinion, which is absolutely privileged, occurs where the commentator states the facts on which the opinion is based, or where both parties to the communication know or assume the exclusive facts on which the comment is clearly based. Restatement Sec. 566 at comment b. In contrast, the mixed type "is apparently based on facts regarding the plaintiff or his conduct that have not been stated by the defendant or assumed to exist by the parties to the communication." Id.
The significant difference between the two lies in how the recipient is affected by the communication. With mixed opinion,
Id. at comment c.
The Restatement takes the position that the court "must determine whether an expression of opinion is capable of bearing a defamatory meaning because it may reasonably be understood to imply the assertion of undisclosed facts which may justify the expressed opinion about the undisclosed facts." Id. We have previously held that alleged defamatory statements "should be construed as a whole." McCall v. Courier-Journal and Louisville Times Co., Ky., 623 S.W.2d 882 (1981), cert. denied, 456 U.S. 975, 102 S.Ct. 2239, 72 L.Ed.2d 849 (1982); see also Restatement Sec. 615 comment d (factors considered by court and jury). Considering then, the statement here in contention, we find that in the whole context of its publication, Hamilton's comments created a reasonable inference that they were justified by undisclosed defamatory facts.
We agree with the trial court that the article including the alleged defamatory language was a background piece, which, when viewed in contrast to the article reporting murder charges against movant, contained a number of favorable comments concerning Yancey. Appearing in the first half of the story, Hamilton's statement recited factual information which connoted long-standing and personal knowledge about Yancey's life. The sequence of the last four sentences is critical to our finding that the appellation "con artist" is capable of bearing a defamatory meaning. "He could preach," was a harmless statement of fact. "He was a smooth talker," seems to qualify the first observation. "He was a con artist," could also be interpreted as a less flattering reflection on Yancey's preaching abilities. But coupled with the next and last comment, "I would never lend him money," calling Yancey a "con artist" could be found to imply that the speaker had particular and articulable reasons for believing movant practiced the art of obtaining money or property from another by fraud, or was otherwise deceitful. 3
We must next address whether the meaning is defamatory. It is possible that a jury could find the statements impute criminal conduct on movant's part. For example, one of the offenses in our penal code including deception as an element is KRS 514.040, "Theft by Deception," which reads in pertinent part:
"(1) A person is guilty of theft by deception when he obtains...
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