"COMM LAW Winter"
Pure Opinion: Is Ollman v. Evans Making a Comeback? JAMES E. STEWART AND LAURIE MICHELSON 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 (email@example.com) 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 butzel.com) 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 (¶ 126.96.36.199) (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