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					Pure Opinion: Is Ollman v. Evans Making
a Comeback?

Courts have long agreed that “pure opin-       Circuit had used for its pre-Milkovich          third party.9 The Michigan Supreme
ion”—statements that cannot be proven to       analysis in Ollman.7 The Ninth Circuit’s        Court declined review.
be either true or false—cannot be action-      use of the totality test in Lieberman raises       During the murder trial, Schmitz’s
able in a defamation case.1 They have not      the question of whether the Ollman analy-       attorney retained Dr. Carole Lieberman,
agreed, however, on the analysis to be         sis has in fact survived Milkovich, despite     a California-based psychiatrist. In a
used in determining whether the chal-          the Milkovich majority opinion’s fairly         posttrial hearing, the attorney argued
lenged speech constitutes protected opin-      pointed observation that pre-Milkovich          that Dr. Lieberman had played an
ion or potentially actionable statements       authority was no longer good law.8              important role in the jury’s determina-
of fact. In 1984, in the influential case          This article will focus on Lieberman as     tion that Schmitz lacked the specific
of Ollman v. Evans,2 the U.S. Court of         a case study of whether Ollman has been         intent necessary for a first-degree
Appeals for the District of Columbia           reinvigorated in the post-Milkovich era in      murder conviction and requested
set out a series of factors to use in this     a case involving not only colorful state-       that the court authorize $24,512 for
analysis, and the Ollman factors quickly       ments of opinion, but also potential asser-     Dr. Lieberman’s fees. The court
became an analytical tool used by courts       tions of fact. It also will summarize signif-   declined to do so.10
across the country.                            icant post-Milkovich cases in other judicial       Following the criminal case, Fieger’s
   Just a few years later, however, in         circuits to provide an overall snapshot of      firm contacted Lieberman about serving
Milkovich v. Lorraine Journal,3 the            the current development of the law of           as an expert in the civil case, for which
U.S. Supreme Court reworked the law of         opinion in the United States.                   she received $2,500 as a retainer. After
opinion and declined to focus on a list of                                                     she was deposed, a dispute arose over
factors. Instead, the Court condensed the      Just the Facts, Ma’am                           payment, and Dr. Lieberman advised Mr.
analysis into requiring a determination of     The infamous Jenny Jones litigation trig-       Fieger that she was “not willing to make
whether the challenged statements stated       gered the cycle of events that led to the       plans to testify” at trial until she had been
actual facts about the plaintiff that could    Ninth Circuit’s decision in Lieberman.          paid in full.11 Mr. Fieger refused to pay
be proven true or false, without providing     In 1995, Michigan resident Jonathan             the bill. As a result, Dr. Lieberman filed
specific guidance to the lower courts on       Schmitz appeared on the Jenny Jones             suit for breach of contract and fraud
how that crucial determination should be       show to meet someone who had a secret           (Lieberman v. Fieger) and issued a press
made. In Milkovich’s wake, courts have         crush on him. That person turned out to         release entitled “Psychiatrist Sues Fieger
been grappling with this essential distinc-    be another man, Scott Amedure. Several          for Fraud, Calls for Boycott of the Jenny
tion ever since.                               days later, Schmitz found a sexually sug-       Jones Show!” The press release men-
   In Lieberman v. Fieger,4 the Ninth          gestive note that Amedure had left at his       tioned her upcoming book on the
Circuit confronted a defamation claim          home. In response, he purchased a shot-         Amedure case.12
based on statements by a trial attorney that   gun and went to Amedure’s house and
a California psychiatrist, among other         killed him. The incident attracted massive      From Jenny Jones to Court TV
things, was “mentally unbalanced,” was         national publicity and resulted in criminal     Once the Amedure civil trial got under
“a terrible witness who was disliked by        and civil litigation. Schmitz was ultimate-     way, Mr. Fieger was interviewed by
the jury,” and had submitted a bill of         ly found guilty of second-degree murder.        Court TV. He apparently had been
$100,000 to a court that “laughed at her                                                       served with Dr. Lieberman’s breach of
                                                   After Schmitz’s conviction, Amedure’s
and gave her zero.”5 Opinion or fact? The                                                      contract complaint at the courthouse on
                                               family, represented by Geoffrey Fieger,
Ninth Circuit, citing Milkovich,6 found                                                        the day of the interview. During the
                                               filed a wrongful death action against the
that these statements and others—notably,                                                      interview, Mr. Fieger was asked about
                                               Jenny Jones program and its owner,
that the plaintiff was “Looney Tunes” and                                                      the Lieberman suit, and the Ninth Circuit
                                               Warner Brothers. A well-known and
“nuts”—were not actionable. In deciding                                                        recounted his response as follows:
                                               highly successful personal injury lawyer
the case, the Ninth Circuit applied a
                                               in Detroit, Fieger gained national atten-          Fieger responded that he had already told
“totality of the circumstances” analysis
                                               tion as the result of his long-standing            Lieberman that “under no circumstances”
remarkably similar to the test that the D.C.                                                      would he allow her to testify. He added that
                                               representation of Dr. Jack Kevorkian,
                                                                                                  Burdick, Schmitz’s original defense attorney,
James E. Stewart (         the advocate of assisted suicide. After            had told him “in no uncertain terms” that
and Laurie Michelson (michelso@                extended pretrial proceedings, a jury trial        Lieberman was “mentally unbalanced” and “a are shareholders in the            resulted in a $29 million verdict in favor         terrible witness who was disliked by the jury.”
media and litigation practices at the          of the Amedure family. The Michigan                Fieger cited Lieberman’s upcoming book and
                                                                                                  accused her of hunting publicity, stating: “This
law firm of Butzel Long. Mr. Stewart           Court of Appeals reversed, finding that            thing is being broadcast worldwide and it
practices in Ann Arbor, Michigan, and          the TV show owed no duty to protect                brings out the Looney Tunes. And this is one
Ms. Michelson practices in Detroit.            Amedure from the homicidal acts of a               of the Looney Tunes.” He added that “in the

                                                                                 Winter 2004 ■ Communications Lawyer ■ 9
   criminal case, she had the audacity to submit a        • True or false? Finally, the Ninth            At another level, however, Lieberman’s
   bill of $100,000,” but the court “laughed at her   Circuit approved the district court’s find-    “totality of the circumstances” analysis
   and gave her zero.” He concluded by stating
   that the description “of the nuts growing on       ing that none of the statements contained      shows that the more things seem to
   trees” in California was “not that far off.”13     “verifiable assertions.”18                     change, the more they really stay the same.
                                                          Thus, the Ninth Circuit summarized         Modern opinion law began with the U.S.
    Based on the interview, Dr. Lieberman
                                                      its ruling that “these alleged defamatory      Supreme Court’s observation in Gertz v.
amended her complaint against Mr. Fieger
                                                      statements constituted an expression of        Robert Welch, Inc., that “under the First
to add a count of slander and intentional
                                                      opinion constitutionally protected by          Amendment, there is no such thing as a
infliction of emotional distress.                     the First Amendment.”19                        false idea.”24 In the years between the
                                                          Lieberman argued vigorously that           decisions in Gertz and Milkovich, a signif-
Lieberman Reaches the Ninth Circuit                   some of the statements were quite factu-       icant body of law had developed holding
Mr. Fieger removed the case to the federal            al, such as the incorrect statement that       that opinion was constitutionally protect-
district court, which granted his motion              she had submitted a bill for $100,000          ed.25 In the course of developing this law,
for summary judgment. The Ninth Circuit               rather than $24,000, the statement that        the courts had employed different stan-
affirmed. It began its opinion by observ-             the judge had “laughed” at her request         dards to ascertain whether a complained-
ing that “the central question in this case           for payment, and the statement that she        of statement was fact or opinion. The
is whether the allegedly defamatory state-            was “a terrible witness disliked by the        best-known example at the federal circuit
ments made by Mr. Fieger were constitu-               jury.” The Ninth Circuit addressed these       level was perhaps the D.C. Circuit’s
tionally protected opinions.”14 Echoing the           arguments by noting that none of them          decision in Ollman v. Evans.26
Milkovich analysis, the court identified              was the basis for her slander claim, and,
                                                                                                         Bertell Ollman was a New York
the threshold question to be “whether a               thus, the district court could not be fault-
                                                                                                     University political science professor who
reasonable factfinder could conclude that             ed for not analyzing them. Moreover,
                                                                                                     brought his action over an Evans and
the contested statement implies an asser-             the court ruled that they would not be
                                                      actionable in any event because Dr.            Nowak column entitled “The Marxist
tion of objective fact.”15 The court then                                                            Professor’s Intentions.” The column stated
applied the “totality of the circumstances”           Lieberman had failed to demonstrate
                                                      that submitting a bill for $100,000            that Ollman was “an outspoken proponent
test from its prior decision in Partington v.                                                        of political Marxism,” viewed in his pro-
Bugliosi to answer this question.16 The               would be defamatory even if incorrect.
                                                          As to the other two statements, the        fession as a “political activist” who used
test analyzes the following three factors:                                                           his classroom for political indoctrination.27
                                                      court found that they would “constitute
   (1) whether the general tenor of the entire work                                                  The Ollman court held that “courts should
   negates the impression that the defendant was
                                                      protected opinion.”20 As to the court
                                                      “laughing” at her fee petition, the Ninth      analyze the totality of the circumstances
   asserting an objective fact,
                                                      Circuit found that the court indeed had        in which the statements are made to
   (2) whether the defendant used figurative or       denied it and that although the judge may      decide whether they merit the absolute
   hyperbolic language that negates that impres-                                                     First Amendment protection enjoyed by
   sion, and
                                                      not have “laughed at her,” this was mere-
                                                      ly a “hyperbolic and colorful description      opinion.”28 The court used the following
   (3) whether the statement in question is capa-     of the actual outcome.”21 As to whether        four factors to “evaluate the totality of
   ble of being proved true or false.17               she had been a “terrible witness dis-          the circumstances”:29
   The Ninth Circuit found that the                   liked by the jury,” the court noted that           1. Analysis of the common usage or
district court had properly applied                   Schmitz’s defense lawyer had apparently        meaning of the complained-of statement:
these factors.                                        made this very statement in pretrial pro-      Does it have a precise meaning, or is its
   • Broad context: The “general tenor of             ceedings in the district court (and had        meaning more indefinite and ambiguous?
the work” negated the impression that                 been sued by Lieberman for doing so),              2. Veracity of the statement: Is the
Fieger was making statements of objec-                and that, in any event, it was “a statement    statement capable of being objectively
tive fact because the dispute grew out of a           of personal viewpoint, not an assertion of     characterized as true or false?
larger legal battle that had already attract-         objective fact.”22 Therefore, Mr. Fieger’s         3. Full context of the statement, that is,
ed a great deal of public media attention,            mere repetition of this statement also was     the entire article or column in which the
the interview was designed to gauge                   protected opinion.                             statement appears: Does other language
Fieger’s reaction to having just been                                                                suggest that the complained-of statement
served with the suit that day at the court-           Ollman v. Evans Redux?                         has factual content?
house, and he had just been in a heated               Can broader conclusions be drawn from              4. Broad context or setting in which
exchange with Court TV about its cover-               the Ninth Circuit’s decision? Perhaps it       the statement appears: Is it the sort of
age of the Schmitz matter.                            may be a decision unique to the facts of       writing or speech that signals to the reader
   • Hyperbole: The Ninth Circuit                     the case, reflecting only that the Ninth       or listener that what is being read or heard
approved the district court’s analysis that           Circuit was not inclined to let one of         is opinion and not fact?30
Fieger’s “colorful expression” negated                the participants in this public brawl use          There was at least some question as
any impression that he was stating objec-             the law of defamation against the other.       to whether Ollman, as well as the simi-
tive facts. The district court took particular        Certainly Mr. Fieger’s well-known              lar Eighth Circuit analysis in Janklow v.
note of his frequent use of terms such as             flamboyant and caustic style and the           Newsweek, Inc.,31 and Fourth Circuit
Looney Tunes, crazy, and nuts and found               interview itself suggest that he was           analysis in Potomac Valve & Fitting,
that a reasonable viewer would have seen              engaging in the “lusty and imaginative         Inc. v. Crawford Fitting Co.,32 survived
his use of mentally unbalanced as “part               expression” that even the majority in          the Supreme Court’s decision in
of a stream of rhetoric.”                             Milkovich was careful to protect.23            Milkovich. This was, perhaps, prompted

10 ■ Communications Lawyer ■ Winter 2004
in some part by the following statement              or false. Thus, Ollman appears to be alive      to dismiss. Among other defenses to the
from the majority opinion in Milkovich:              and well in the Ninth Circuit.                  defamation claim, the store argued that the
   [Respondents] propose that a number of factors                                                    manager’s statement that he suspected the
   developed by the lower courts (in what we         In the Other Circuts . . .                      plaintiff was a protected expression of
   hold was a mistaken reliance on the Gertz dic-                                                    opinion.44 The appellate court first ana-
   tum) be considered in deciding which is which.    Phantom Touring, Inc. v.                        lyzed the word suspect and found that it
   But we think the “‘breathing space’” which
   “‘freedoms of expression require in order to      Affiliated Publications                         could have any number of meanings, from
   survive,’” Hepps, 475 U.S. at 722 (quoting        Shortly after Milkovich, the First Circuit      suspecting that someone committed a
   New York Times, 376 U.S. at 272), is adequately   was confronted in Phantom Touring, Inc.         crime to “predicting” that “the Patriots
   secured by existing constitutional doctrine       v. Affiliated Publications38 with defama-       will win the Super Bowl next year.”
   without the creation of an artificial dichotomy
   between “opinion” and fact.33
                                                     tion claims over articles in the Boston         Holding that “context makes the differ-
                                                     Globe comparing the plaintiff’s Fake            ence,” the First Circuit remanded to the
    Justice Brennan’s dissent observed               Phantom musical comedy with the well-           district court for further evaluation of the
that the circumstances to be scrutinized             known Phantom of the Opera musical by           context of the statement.45
by a court in determining whether a                  Andrew Lloyd Webber. In discussing
statement purports to state or imply facts           Milkovich, the First Circuit observed that
“are the same indicia that lower courts                                                              Moldea v. New York Times Co.
                                                     “while eschewing the fact/opinion termi-        In Moldea v. New York Times Co.
have been relying on for over the past               nology, Milkovich did not depart from the
decade or so to distinguish between                                                                  (Moldea II),46 the D.C. Circuit reversed its
                                                     multifactored analysis that had been
statements of fact and statements of                                                                 prior decision in Moldea47 that the context
                                                     employed for some time by lower courts
opinion,” and he emphasized that this                                                                of a complained-of statement was irrele-
                                                     seeking to distinguish between actionable
was exactly the analysis that the majority                                                           vant in a Milkovich analysis.48 Rereading
                                                     fact and non-actionable opinion.”39
had used in determining that the state-                                                              Milkovich and relying on the First Circuit’s
                                                         For this proposition, the court relied on
ments at issue in Milkovich did imply                                                                decision in Phantom Touring, as well as
                                                     Ollman as well as its own prior decision
actual facts about the plaintiff.34                  in McCabe v. Rattiner,40 which had adopt-       its own prior decision in Ollman, the court
Nevertheless, the majority opinion                   ed a “totality of the circumstances analy-      in Moldea II concluded that “we are on
seemed quite clear: pre-Milkovich deci-              sis.” Relying on these factors, the First       reflection convinced that Moldea [I] erred
sions were “mistaken,” and their                     Circuit found statements that the produc-       in assuming that Milkovich abandoned the
analysis was not to be relied upon. It               tion was a “rip off,” a “scandal,” a “snake     principle of looking to the context in
is reasonable to ask, however, whether               oil job,” and “fake” and “phony” were not       which speech appears.”49 The court went
the Ninth Circuit’s “echo” of Ollman’s               actionable because the words themselves         on to note that book reviews such as
“totality of the circumstances” in                   admitted various interpretations.41 In con-     were involved in Moldea enjoyed a “long
Lieberman some twelve years after                    trast, the court found that statements          and rich history in our cultural and legal
Milkovich suggests that Ollman survives              suggesting that the plaintiff was deliber-      traditions” and that a critic, though not
in the Ninth Circuit or elsewhere.                   ately misleading the public could be suffi-     without limits, “must be given the consti-
    Ironically, the Ninth Circuit did not            ciently factual to be proven true or false.     tutional ‘breathing space’ appropriate to
appear to take its totality of the circum-           However, in applying the context factor,        the genre.”50
stances test directly from Ollman. The               the court found that the sum effect of the
phrase was first used in the Ninth Circuit           “format, tone and entire content of the         Weyrich v. New Republic, Inc.
decision in Underwager v. Channel 9                  articles” made it unmistakably clear            Similarly, in Weyrich v. New Republic,
Australia, which observed that “to deter-            that the author was expressing a point          Inc., the D.C. Circuit, relying on its
mine whether a statement implies a                   of view only.42                                 decision in Moldea II (and thus Ollman as
factual assertion, we examine the totality                                                           well) and Milkovich, emphasized the long-
of the circumstances in which it was                 Garrett v. Tandy Corp.                          standing protection for rhetorical hyper-
made.”35 Underwager then applied the                 In 2002, the First Circuit, although not        bole and imaginative expression as well as
three factors later used in Lieberman.               relying on “totality of the circumstances”      the importance of context—“the court
    These three factors were established in          or citing Ollman or Phantom Touring,            must consider the statement in context.”51
the Ninth Circuit’s earlier decision in              applied the same analysis in a nonmedia         The New Republic had published a biting
Unelko Corp. v. Rooney,36 which had                  case. In Garrett v. Tandy Corp.,43 the          political commentary about the plaintiff
made no reference to either “totality of the         plaintiff had been the only African-            entitled “Robespierre of the Right—What
circumstances” or to Ollman. In fact, the            American customer at a Radio Shack              I Ate at the Revolution.” It offered a view
Unelko court observed that the (pre-                 store in Brunswick, Maine, when a               of Mr. Weyrich’s life as a leading
Milkovich) authority relied on by the                computer apparently disappeared. After          member of the conservative movement.
district court “ha[s] . . . been effectively         he left, the store manager discovered the       Analyzing the language used and the con-
overruled by the Supreme Court’s recent              loss and reported to the police his suspi-      text, the court found that the statement
opinion in Milkovich.”37 Nevertheless, a             cions that the plaintiff had stolen the         that the plaintiff “began to suffer bouts of
comparison of the four-prong Ollman test             computer. He apparently made no police          pessimism and paranoia” following the
with the three-prong Lieberman test sug-             reports about any of the white customers        1981 election was certainly pejorative, but
gests no essential difference between the            who had been in the store at the time.          that paranoia was clearly not used in the
two. Both analyses evaluate the language                 The plaintiff’s complaint alleged civil     clinical sense and that paranoia has taken
used, the context in which it is used, and           rights violations and defamation. The dis-      on a less-than-definitive popular mean-
whether the statement can be proven true             trict court granted Radio Shack’s motion        ing.52 Thus, the court concluded that the

                                                                                     Winter 2004 ■ Communications Lawyer ■ 11
use of paranoia is “rhetorical sophistry         by the American Association of                 the Ninth Circuit, seems to be making
rather than a verifiable fact.”53 Further, the   University Women (AAUW), the plaintiff         a comeback.
court emphasized context in observing            was described as an “ambulance chaser
that the statement had appeared in an arti-      with interest only in slam dunk cases.”60      Endnotes
cle in a magazine that was known for its         In holding this description was actionable,         1. See, e.g., Gertz v. Robert Welch, Inc.,
political commentary.                            the court relied solely on a Milkovich         418 U.S. 323 (1974).
    However, language and context will           analysis and did not refer to pre-Milkovich         2. 750 F.2d 970 (D.C. Cir. 1984) (en
only take the publisher so far. The court        opinion law. However, as with the Ollman       banc), cert. denied, 471 U.S. 1127 (1985).
remanded the case for further proceedings        analysis, the content of the statement was          3. 497 U.S. 1 (1990).
on several of the verifiable anecdotes,          crucial. The court rejected the defendant’s         4. 338 F.3d 1076 (9th Cir. 2003).
including statements that in one particular      arguments that the terms were inherently            5. Id. at 1079.
                                                                                                     6. 497 U.S. at 14–21.
instance the plaintiff “snapped,” erupted        informal and that imprecise terms of slang          7. Lieberman, 338 F.3d at 1080; Ollman,
in a “volcano of screaming,” “frothed at         were, thus, purely subjective. Although        750 F.2d at 950.
the mouth,” and sent a letter to someone’s       the court previously emphasized context             8. Milkovich, 497 U.S. at 14–21.
fiancée suggesting that he was unfit for         in “general terms,” such an approach                9. See Graves v. Warner Bros., 656
marriage.54 “[I]n other words,” the court        worked against the defendant this time.        N.W.2d 195, 199–203 (Mich. Ct. App. 2003).
warned, “an article’s ‘political context’        The court found that the AAUW’s direc-            10. See Lieberman v. Fieger, 338 F.3d
does not indiscriminately immunize every         tory of participating attorneys was a          1076, 1078 (9th Cir. 2003).
statement contained therein.”55                  particularly “fact-laden” publication.61          11. Id.
                                                                                                   12. Id.
                                                                                                   13. Id. at 1078–79.
Biospherics, Inc. v. Forbes, Inc.                McClure v. American Family                        14. Id. at 1078.
In Biospherics, Inc. v. Forbes, Inc., the        Mutual Insurance Co.                              15. Id. at 1079.
magazine’s column “Streetwalker” fea-            The Eighth Circuit’s most recent pro-             16. 56 F.3d 1147, 1153 (9th Cir. 1995)
tured a comment that “investors will             nouncement involved an insurance com-             17. See Lieberman, 338 F.3d at 1080.
sour on Biospherics when they realize            pany’s statements relative to two agents          18. Id.
that Sugaree [the company’s sugar-sub-           whose contracts were terminated by the            19. Id.
                                                 company after those agents lobbied the            20. Id. at 1081.
stitute product] isn’t up to the compa-
                                                                                                   21. Id.
ny’s claims.”56 In analyzing Forbes’s            legislature to enact a bill limiting their        22. Id. (quoting Partington v. Bugliosi, 56
opinion defense, the Fourth Circuit              employer’s ability to market certain insur-    F.3d 1147 (9th Cir. 1995)).
observed that Milkovich had specifically         ance products. In McClure v. American             23. Milkovich v. Lorraine Journal, 497
rejected any multifactor test such as that       Family Mutual Insurance Co., the court         U.S. 1, 17 (1990).
used in Ollman.                                  held that the statements, to the effect that      24. 418 U.S. 323 (1974).
    Little practical difference can be found,    the agents engaged in “disruptive and dis-        25. See ROBERT D. SACK, SACK ON
however, between the analysis then used          loyal activity over a period of years” and     DEFAMATION: LIBEL, SLANDER & RELATED
by the Fourth Circuit and that used in           that the agents’ conduct was “totally unac-    PROBLEMS 4-12 (¶ (3d ed. 2003).
Ollman. Noting that the challenged state-        ceptable by any business standard,” were          26. 750 F. 2d 970 (D.C. Cir. 1984) (en
                                                                                                banc), cert. denied, 471 U.S. 1127 (1985).
ments could be reasonably interpreted as         not defamatory but instead were “the
                                                                                                   27. Id. at 987.
stating or implying actual facts, the court      company’s characterizations of activity           28. Id. at 979.
nevertheless found that “the context and         that [the agents] had undertaken in con-          29. Id.
general tenor of the article indicate that       nection with [their] lobbying efforts.”62         30. See id.
the piece contains constitutionally protect-     In arriving at this conclusion, the court         31. 788 F.2d 1300 (8th Cir. 2000).
ed subjective views and not factual state-       observed that Minnesota follows the               32. 829 F.2d 1280 (4th Cir. 1987).
ments.”57 A large part of the court’s opin-      four-factor test set forth in Janklow:            33. 497 U.S. 1, 17 (1990).
ion seems to have been based on its find-        “(1) specificity and precision [of the            34. Id. at 23 (Brennan, J., dissenting).
ing that the column had a “breezy” tone,         statement]; (2) verifiability; (3) literary       35. 69 F.3d 361, 367 (9th Cir. 1995).
was “Streetwalker,” and was entitled             and social context in which it was made;          36. See 912 F.2d 1049 (9th Cir. 1990).
                                                                                                   37. Id. at 1053.
“Sweet Talkin’ Guys.” The court conclud-         and (4) public context.”63 This test was          38. 953 F.2d 724 (1st Cir. 1992)
ed that “ultimately any reasonable person        also based on Ollman.                             39. Id. at 728.
reading ‘Sweet Talkin’ Guys,’ would rec-                                                           40. 814 F.2d 839 (1st Cir. 1987).
ognize, based on the tenor, language, and        Ollman Is Alive and Well                          41. Phantom Touring, 953 F.2d at 726.
context of the article, that the challenged      When Geoffrey Fieger went on one of               42. Id. at 730.
statements contain a subjective view, not a      his tirades against Dr. Lieberman, he was         43. 295 F.3d 94 (1st Cir. 2002).
factual statement.”58                                                                              44. See id. at 96–97.
                                                 probably unconcerned about the impact it
                                                                                                   45. Id. at 105.
                                                 could have on the law involving speech            46. Moldea v. New York Times Co., 22
Flam v. American Association                     claimed to be “opinion.” Presumably,           F3d 310 (D.C. Cir. 1994) [hereinafter
of University Women                              most courts would have no difficulty find-     Moldea II].
Of particular interest in the Second Circuit     ing these statements not actionable. But          47. Moldea v. New York Times Co., 15
is Flam v. American Association of               for less obvious cases that require a more     F.3d 1137 (D.C. Cir. 1994).
University Women.59 In a directory of            demanding scrutiny of the “totality of the        48. Moldea II, 22 F3d at 310.
attorneys willing to consult on possible         circumstances,” the original factor analy-        49. Id. at 315.
gender discrimination claims, published          sis from Ollman, modified slightly in             50. Id.

12 ■ Communications Lawyer ■ Winter 2004
  51. 235 F.3d 617 (D.C. Cir. 2001).      57. Id. at 184.                             63. Janklow v. Newsweek, Inc., 788
  52. Id. at 625.                         58. Id. at 185.                          F.2d 1300, 1302–03 (8th Cir. 1986); accord
  53. Id.                                 59. 201 F.3d 144 (2d Cir. 2000).         McClure, 223 F.3d at 853 (citing Geraci v.
  54. Id. at 627.                         60. Id. at 147.                          Eckankar, 526 N.W.2d 391, 397 (Minn. Ct.
  55. Id. at 626.                         61. Id.                                  App. 1995)).
  56. 151 F.3d 180, 180 (4th Cir. 1998)   62. 223 F.3d 845, 853 (8th Cir. 2000).

28 ■ Communications Lawyer ■ Winter 2004

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