FLAMM v. AMERICAN ASS'N OF UNIVERSITY WOMEN Docket No. 99-7085.
201 F.3d 144 (2000)
Leonard N. FLAMM, Esq., Plaintiff-Appellant, v. AMERICAN ASSOCIATION OF UNIVERSITY WOMEN and The AAUW Legal Advocacy Fund, Defendants-Appellees.
United States Court of Appeals, Second Circuit.
Decided January 4, 2000.
Laura R. Handman, New York City (Carolyn K. Foley, Davis Wright Tremaine, LLP, Michael T. Walsh, Walsh & Sheehan, LLP, New York City, of counsel), for Appellees.
Before: MESKILL, MINER and PARKER, Circuit Judges.
MESKILL, Circuit Judge:
Appellant Leonard N. Flamm, Esq., appeals a decision of the United States District Court for the Southern District of New York, Chin, J., dismissing his defamation action for failure to state a claim upon which relief can be granted. The district court held that the statement challenged by Flamm was non-actionable opinion, protected under the First Amendment and the Constitution of the state of New York. However, even though appellees, who are not members of the traditional media, are entitled to constitutional protection for statements that do not imply a provably false fact, we hold that the statement challenged by Flamm can reasonably be understood to imply that he engages in the unethical solicitation of clients, an accusation that can be proven false. Therefore, we vacate the judgment and remand for further proceedings.
Appellees American Association of University Women and the AAUW Legal Advocacy Fund (collectively "AAUW") are non-profit corporations dedicated to improving educational opportunities for women and girls. Among its other programs and services, the AAUW maintains a referral service of attorneys and other professionals who are willing to consult with women involved in higher education who have brought or are considering bringing gender discrimination actions. As part of this service, the AAUW compiles a directory of the participating attorneys and other professionals, listing names, contact information, and a short blurb about each person. In October 1997 the AAUW distributed copies of the directory, together with a cover letter, to the people listed in it, to members of the AAUW, and to any others requesting a copy.
Neither the cover letter nor the directory explained how the directory was compiled, although two of the directory entries included the notation "not reached in survey." Some of the entries appear to include statements made by the person listed. For example, Mr. K stated: "If they [cases] cannot be resolved early on, then I plan on being there for the long run, since
Flamm filed suit in state court, alleging that the description "an `ambulance chaser' with interest only in `slam dunk cases'" constitutes libel per se. He sought both compensatory and punitive damages. The AAUW removed the action to federal court and filed a motion to dismiss. The district court granted the motion because it determined that the statement challenged by Flamm could not reasonably be construed as a statement of objective fact. Flamm v. American Association of University Women,
We disagree. In light of the inclusion of the statement in an otherwise fact-laden directory, the description of Flamm as an "ambulance chaser" might imply to the reader of the directory that Flamm engages in the unethical solicitation of clients. Consequently, dismissal at this stage of the proceedings was improper.
The central issue on appeal is whether the statement challenged by Flamm is protected by either the United States Constitution or the New York Constitution. Constitutional limits on common law defamation actions were initially identified in New York Times Co. v. Sullivan,
Subsequently, however, the Supreme Court disclaimed "an additional separate constitutional privilege for `opinion'" under the First Amendment. Milkovich v. Lorain Journal Co.,
In response, the Court of Appeals of New York grounded its pre-Milkovich protection for expressions of opinion in the New York Constitution. See Immuno AG. v. Moor-Jankowski,
I. The Federal Standard
In defamation suits against media defendants, a statement that involves a matter of public concern must be provable as false before liability can be established. Milkovich, 497 U.S. at 19-20, 110 S.Ct. 2695. This follows directly from Philadelphia Newspapers v. Hepps,
The distinctions found in the law of defamation—between matters of public and private concern, between media and nonmedia defendants, and between public officials or public figures and private plaintiffs—were enunciated in an attempt to balance "the State's interest in compensating private individuals for injury to their reputation against the First Amendment interest in protecting . . . expression." See, e. g., Dun & Bradstreet v. Greenmoss Builders,
The Court re-examined Gertz in Dun & Bradstreet, 472 U.S. at 756-61, 105 S.Ct. 2939. In Dun & Bradstreet, a defamation action against a credit reporting agency, the plaintiff was awarded compensatory or presumed damages and punitive damages by the jury. The state trial court granted a new trial after the defendant challenged the award under Gertz. On appeal, the Vermont Supreme Court reversed. The court acknowledged that a distinction between media defendants and nonmedia defendants would not always be easy to draw, but nonetheless concluded that the constitutional protection of New York Times did not extend to nonmedia defendants such as Dun & Bradstreet.
The Supreme Court affirmed on different grounds. Although there was no opinion for the Court, a majority of justices agreed that the Gertz rule requiring a showing of actual malice to support recovery of presumed or punitive damages does not apply to cases involving matters of only private concern. The plurality opinion explained: "It is speech on `matters of public concern' that is `at the heart of the First Amendment's protection.' ... In contrast, speech on matters of purely private concern is of less First Amendment concern." Id. at 758-59, 105 S.Ct. 2939 (quoting First National Bank of Boston v. Bellotti,
Significantly, the plurality opinion and the concurring opinions declined to adopt the media/nonmedia distinction drawn by the state court, and that distinction was expressly rejected by the four dissenting justices and by Justice White. See id. at 781-84, 105 S.Ct. 2939 (dissenting opinion); id. at 773, 105 S.Ct. 2939 (White, J., concurring). "Such a distinction is irreconcilable with the fundamental First Amendment principle that `[t]he inherent worth of ... speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.' First Amendment difficulties lurk in the definitional questions such an approach would generate. And the distinction would likely be born an anachronism." Id. at 781-82, 105 S.Ct. 2939 (Brennan, J., dissenting) (quoting First National, 435 U.S. at 777, 98 S.Ct. 1407) (citation and footnotes omitted); see also Don King Prods. v. Douglas,
We agree that a distinction drawn according to whether the defendant is a member of the media or not is untenable. However, we need not extend the constitutional safeguards of Hepps and Milkovich, which involved media defendants, to every defamation action involving a matter of public concern. Rather, in a suit by a private plaintiff involving a matter of public concern, we hold that allegedly defamatory statements must be provably false, and the plaintiff must bear the burden of proving falsity, at least in cases where the statements were directed towards a public audience with an interest in that concern. See Unelko Corp. v. Rooney,
This approach, akin to a "common interest" privilege for matters of public concern, balances the competing values at stake. On the one hand, the state interest in compensating private individuals for wrongful injury to reputation is significantly weaker "when the factfinding process [is] unable to resolve conclusively whether the speech is true or false; it is in those cases that the burden of proof is dispositive." See Hepps, 475 U.S. at 776, 106 S.Ct. 1558. On the other hand, the First Amendment interest in protecting free expression is advanced by requiring private
Turning to the case at bar, whether a publication addresses a matter of public concern "must be determined by the content, form, and context of a given statement, as revealed by the whole record." Connick v. Myers,
For the foregoing reasons we conclude that, to survive this motion to dismiss, Flamm must have shown that a reasonable person could find that the challenged statement alleges or implies a provably false fact. We conclude that he has.
In Milkovich, the Supreme Court held that there is no separate constitutional privilege for statements of opinion under the First Amendment. Instead, the Court explained, "a statement on matters of public concern must be provable as false before there can be liability under state defamation law." Milkovich, 497 U.S. at 19, 110 S.Ct. 2695 (citing Hepps). Furthermore, liability may not be based on "statements that cannot reasonably be interpreted as stating actual facts about an individual," including statements of "imaginative expression" or "rhetorical hyperbole." Id. at 20, 110 S.Ct. 2695 (citing Hustler Magazine v. Falwell,
In Milkovich, a high school wrestling coach sued a local newspaper and one of its reporters on the basis of a published sports column. Milkovich alleged that the headline and nine sentences from the column accused him of perjury. The state courts granted summary judgment for the defendant on the ground that the article was "constitutionally protected opinion." The Court reversed, stating the dispositive question to be whether the challenged statements could reasonably be understood to imply that the plaintiff had committed perjury. Id. The Court answered the question in two steps: whether the challenged statements reasonably imply the alleged defamatory meaning; and if so, whether that defamatory meaning is capable of being proven false.
First, the Court recognized that the "clear impact" of the headline and the nine sentences was that "`[Milkovich] lied at the hearing ... after having given his solemn oath to tell the truth.'" Id. (quoting
Flamm alleges in his complaint that his description in the AAUW directory as an "ambulance chaser" states that he "has engaged in improper activities to solicit and obtain clients." Following Milkovich, we must decide whether the description of Flamm as an "ambulance chaser" reasonably implies that he has engaged in unethical solicitation, and if so, whether the accusation of unethical solicitation is capable of being proven false. The second question, however, is conceded by the defendants. They admit that the term "ambulance chaser" is provable as true or false when understood literally to accuse a lawyer of the unethical or criminal behavior of solicitation.
We conclude that the statement challenged by Flamm reasonably implies that he has engaged in unethical solicitation. The directory in all other respects states facts: names, addresses and phone numbers; a note that Ms. R "will not be able to consult with anyone affiliated with the Florida State University system because of a conflict of interest"; the warning that Mr. A "charges a $50.00 initial consultation fee and does not discuss potential cases over the phone"; and so on. Furthermore, the directory has the stated purpose of providing referrals to qualified attorneys and professionals to assist victims of gender discrimination. A reader of the directory, seeing the only negative comment among several hundred entries, would likely turn elsewhere for assistance. Indeed, the note about Flamm is highlighted in italics, suggesting that it warrants special attention and consideration.
The AAUW points to Old Dominion Branch No. 496, Nat'l Assoc. of Letter Carriers v. Austin,
The Court found instead that "the only factual statement in the disputed publication is the claim that appellees were scabs" and that "[t]he definition's use of words like `traitor' cannot be construed as representations of fact." Id. at 284, 94 S.Ct. 2770. The Court observed that the language in Jack London's "The Scab" was used in a "loose, figurative sense" and that it would be "impossible to believe" that any reader understood the newsletter to be charging the plaintiffs with treason. Id. at 284-85, 94 S.Ct. 2770. In other
Next, the AAUW contends that the phrase "with interest only in `slam dunk cases'" indicates that the challenged statement cannot be read literally, because "slam dunk" is an imprecise term of slang suggesting that the entire statement amounts to a purely subjective judgment. There is little merit to this argument. Even if the "slam dunk" language might cause a reasonable reader to consider whether the entire statement was merely an informal complaint, we cannot say that it would be unreasonable to conclude otherwise. The description "an `ambulance chaser' with interest only in `slam dunk cases'" can reasonably be interpreted to mean an attorney who improperly solicits clients and then takes only easy cases. This reading, which separates to a degree the "ambulance chaser" characterization from the "slam dunk cases" language, is especially plausible because, in the challenged statement as printed, each of those phrases was separately enclosed in quotation marks. It would not be unreasonable to read the "ambulance chaser" excerpt literally, because it could have been unrelated to the "slam dunk cases" reference in whatever passage the AAUW was quoting.
Similarly, with respect to the prefix "[a]t least one plaintiff," it would not be unreasonable for a reader to believe that the AAUW would not have printed such a statement without some factual basis and to conclude that the statement did indeed state facts about Flamm. The directory was, in all other respects, purely factual. Nothing in the directory suggested that it might be a forum for the unsubstantiated complaints of a single plaintiff. Furthermore, "the fact that a particular accusation originated with a different source does not automatically furnish a license for others to repeat or publish it without regard to its accuracy or defamatory character." Brian v. Richardson,
We therefore hold that the challenged statement is "reasonably susceptible to the defamatory meaning imputed to it." See Levin, 119 F.3d at 195 (citing James v. Gannett Co.,
In sum, the AAUW's contention that the term "ambulance chaser" was mere hyperbole falls short. Considering the "general tenor" of the publication—a directory for referrals put out by a national professional organization—it would not be unreasonable to think that the description of Flamm conveyed an assertion of fact. Thus, the challenged statement reasonably implies a defamatory fact capable of being proven false, and the AAUW is not entitled to dismissal under the First Amendment.
II. The New York Standard
In New York, the courts employ a flexible approach in distinguishing actionable fact from non-actionable opinion. Three factors are generally considered: "(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to `signal ... readers or listeners that what is being read or heard is likely to be opinion, not fact.'" Gross v. New York Times Co.,
The Court of Appeals of New York has made clear, however, that a proper analysis should not consist of a mechanical enumeration of each factor adopted in Steinhilber. Instead, "the court should look to the over-all context in which the assertions were made and determine on that basis `whether the reasonable reader would have believed that the challenged statements were conveying facts about the libel plaintiff.'" Brian, 87 N.Y.2d at 51, 637 N.Y.S.2d at 351, 660 N.E.2d at 1130 (quoting Immuno AG., 77 N.Y.2d at 254, 566 N.Y.S.2d at 917, 567 N.E.2d at 1281).
Since Steinhilber, the Court of Appeals of New York has consistently focused its analysis on the overall context in which the complained-of assertions were made. See Brian, 87 N.Y.2d at 53, 637 N.Y.S.2d at 351, 660 N.E.2d at 1130 (statements published
In the present case, the challenged language appears in a national directory nearly seventy pages in length, compiled and distributed by a reputable professional organization with a 100 year history of supporting education. The directory purports to list "attorneys and other specialists" willing to consult with women involved in higher education who are seeking redress for sex-based discrimination. The directory provides names, addresses, phone numbers and, generally, a short statement of the person's area of interest or expertise. In such a fact-laden context, the reasonable reader would be "less skeptical and more willing to conclude that [the directory] stated or implied facts." Gross, 82 N.Y.2d at 156, 603 N.Y.S.2d at 819, 623 N.E.2d at 1169 (alterations and internal quotations omitted).
The cases cited by the AAUW are unavailing, involving situations (unlike the situation here) that suggest that the alleged defamations should not be understood to be stating facts. See Steinhilber v. Alphonse,
Finally, the district court held that the phrase "with interest only in `slam dunk cases'" rendered the entire statement so informal as to lack a precise and readily understood meaning. Although acknowledging that "`ambulance chaser' standing alone may have a precise meaning," and indeed, "does have a specific meaning, particularly among lawyers and professionals," the court focused on the "slam dunk" language. See Flamm, 28 F.Supp.2d at 189-90. The court reasoned that "an `ambulance chaser' is not someone who is interested only in `slam dunk cases,' but rather, he is someone who is much less selective and who must `chase' after cases." Id. at 190. We do not agree.
The AAUW's other arguments were considered previously and rejected in our discussion of First Amendment privilege. Consequently, the AAUW is not entitled to dismissal at this stage of the litigation.
As noted earlier, it remains for the jury to decide whether the challenged statement was in fact understood in a defamatory sense. Furthermore, the AAUW may rely on the other constitutional protections reviewed in Milkovich, including the requirements that Flamm establish both fault and falsity. However, because the statement challenged by Flamm reasonably can be understood to imply that he engages in unethical solicitation, he is entitled to continue with this action and the district court's decision cannot stand. We vacate the judgment and remand for further proceedings not inconsistent with this decision.
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