N.Y. Appellate Division Dismisses Libel Complaint as Non-Actionable Opinion
Posted in Defamation

On January 29, 2009, a panel of the New York Supreme Court, Appellate Division, reversed a trial court’s order denying a motion to dismiss a plaintiff’s libel complaint, holding that the allegedly libelous statements constituted non-actionable opinion.  A copy of the decision is linked here.

In Bonanni v. Hearst Communications, Inc., No. 505007 (N.Y. App. Jan. 29, 2009), the plaintiff, a member of the City of Albany Police Department, sued the owner of the Times Union newspaper (actually the Hearst Corporation, not Hearst Communications) over the content of two articles that were labeled as “commentary.” 

In the first article, the author wrote that the plaintiff should be dismissed from the police force because the plaintiff had allegedly reported for work intoxicated and also had a history of disciplinary actions taken against him for “a series of serious incidents.”  The incidents mentioned in the article included the beating of a college student while not on duty and the accidental shooting of a suspect during a police chase.  The article did not mention that another officer fired the shot that killed the suspect in the car chase.

The second article mainly criticized the police officer’s union because it evidently opposed the Albany police chief’s “zero-tolerance alcohol policy.”  However, the commentary mentioned that the union supported the plaintiff in an arbitration proceeding.  The commentary discussed again that the plaintiff allegedly reported for duty under the influence of alcohol and restated the plaintiff’s history of disciplinary actions.  Once again, the writer called for the plaintiff’s ouster.

The plaintiff filed his complaint alleging that the defendant newspaper had defamed him by stating (among other things) that he had been intoxicated at work and was unfit to serve as a police officer.  He further alleged that the defendant had acted with actual malice (which, as a public official involved in a matter of public concern, he would be legally required to prove).  The defendant filed a motion to dismiss for failure to state a valid cause of action based in part on the fact that the allegedly defamatory statements were non-actionable opinion.

On review, the Appellate Division determined as a matter of law that the statements were opinion and, therefore, could not serve as the basis for a libel complaint.  In reaching its conclusion, the Appellate Division considered three factors to determine whether the statements constituted actionable fact or non-actionable opinion:

(1) whether the language of challenged statements has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether, considering the context in which the statements were made, readers are likely to understand the statements to be opinion, rather than fact.

When applying the test, the court stated that the immediate context of the statement and the “broader social context and surrounding circumstances” must be considered.

Applying the test for fact versus opinion, the Appellate Division found that the content and the context of the articles and their tone and purpose would lead a reasonable reader to understand that the articles were the writer’s opinion, not statements of fact about the plaintiff.  The clear identification of the articles as “commentary” in the print version of the newspaper and the articles’ location in the “opinion” section of the online version of the publication were persuasive (although not determinative) to the court.  The “tenor” of the articles also “signaled to the reader that [the author] was expressing his opinion.”  For example, the writer used colorful, subjective language such as this:  “’At long last, [plaintiff] is going to be shown the street instead of pounding it.  The city’s patience is exhausted, and so is the public’s, and radical action is way overdue.’”

Additionally, the Appellate Division found language in the articles qualifying the nature of the charges and disciplinary actions supported a finding that the articles constituted opinion.  For example, the first article characterized the accusation that the plaintiff arrived at work intoxicated as an “allegation.”  The second article qualified disciplinary charges stemming from that same accusation as “pending.”  According to the court, the discussion of the pending charges was not intended to convince readers of the plaintiff’s guilt but, rather, to encourage the union to support the police chief’s zero-tolerance alcohol policy.

Given the overall context of the articles and the broader social context in which the articles were published, which apparently included what the court characterized as “years of widespread television and print media coverage of the allegations of misconduct by plaintiff,” the court determined that a reasonable reader would understand that the author was expressing his opinion, not engaging in “objective news reporting.”  Therefore, the Appellate Division reversed the trial court and granted the defendant’s motion to dismiss.

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