On December 21, 1986, Max Jennings, the executive editor of the Mesa Tribune,
Alleging that the column constituted corporate defamation and commercial disparagement, AMCOR Investment Corporation sued Cox Arizona Publications, Inc., the owner and publisher of the Tribune, and Max Jennings. On a 12(b)(6) motion
We recognize at the outset that motions to dismiss are not favored in our law and that trial courts should normally resist the temptation to abort cases at the pleading stage. State ex rel. Corbin v. Pickrell, 136 Ariz. 589, 594, 667 P.2d 1304, 1309 (1983). The general rule is that a complaint is to be construed liberally in the plaintiff's favor and should not be dismissed unless it appears beyond doubt that the plaintiff could prove no facts in support of its claim that would entitle it to relief. Chirco Const. Co. v. Stewart Title and Trust, 129 Ariz. 187, 188, 629 P.2d 1023, 1024 (App. 1981). However, when the complaint implicates the fundamental value of freedom of the press, there is good reason for a court to examine the complaint with a more rigorous eye in order not to burden public debate with insupportable litigation. 5 C. Wright and A. Miller, Federal Practice and Procedure § 1357 at 610 (1969). Compare Washington Post Co. v. Keogh, 365 F.2d 965, 968 (D.C. Cir.1966) (holding summary disposition of case essential "[f]or the stake here, if harassment succeeds, is public debate.")
But in this case, there was no need for the trial court to construe the complaint either strictly or liberally or to speculate about what facts the plaintiff might be able to prove at trial. We do not need therefore to hold explicitly that a special pleading rule is required in First Amendment cases. The complaint here, to which the critical column was attached, set out the offending statements precisely. The sole issue for the trial court was whether the words used were, as a matter of law, actionable. We turn then to our reasons for concluding that the trial court decided that question correctly.
II. OPINION IS ABSOLUTELY PROTECTED
The expression of one's opinion is absolutely protected by the First and Fourteenth Amendments to the U.S. Constitution. MacConnell v. Mitten, 131 Ariz. 22, 638 P.2d 689 (1981); Glaze v. Marcus, 151 Ariz. 538, 540, 729 P.2d 342, 344 (App. 1986).
418 U.S. 323, 339-40, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789, 805 (1974).
The need to distinguish between fact and opinion is not new in the law of libel; it has its origins in common law cases dealing with the defense of fair comment. Prosser and Keeton on Torts, § 113A at 813 (5th ed. 1984). Particularly since Gertz, courts have struggled with the difficult task of articulating the constitutional standard by which to make the necessary distinction. We are invited by the appellant to avoid this slippery problem by leaving the job to the jury. This we plainly cannot do since the issue is one of law. Information Control Corp. v. Genesis One Computer Corp., 611 F.2d 781, 783 (9th Cir.1980). It could hardly be otherwise in view of the constitutional basis for the protection of opinion. Lewis v. Time, Inc., 710 F.2d 549, 555 (9th Cir.1983). Although it was half-heartedly argued at one point in this case that opinion commercially disparaging a plaintiff's business or product was not entitled to constitutional protection, it is obvious that there is no basis for distinguishing between libel and disparagement in this respect. Gertz v. Robert Welch, Inc., supra; Redco Corp. v. CBS, Inc., 758 F.2d 970 (3d Cir.1985). We accordingly treat them identically in this opinion.
The case before us illustrates the inadequacy of a mechanical attempt to isolate statements of fact from those of opinion. We deal here with a newspaper column evaluating and criticizing an act of governmental officials on a matter of serious public importance. It combines clearly evaluative characterizations of the project and the council's actions, predictions of the future impact of the project, and speculations about political consequences with a few statements that appear on the surface to be bare facts.
In this evolving area of the law, a number of different standards have been developed. See generally, R. Smolla, Law of Defamation, §§ 6.01-6.12 at 6-1 through 6-52 (1988). In recent times the greater number of courts have adopted some form of the flexible "totality of the circumstances" approach to the problem. They reject as too mechanical any attempt simply to distinguish linguistically between fact and opinion. Sensitivity to the values of free debate requires an analysis not only of the words used but also the context in which they appear, as well as the entire circumstances surrounding the publication. See, e.g., Potomac Valve & Fitting, Inc. v. Crawford Fitting Co., 829 F.2d 1280 (4th Cir.1987); McCabe v. Rattiner, 814 F.2d 839 (1st Cir.1987); Ollman v. Evans, 750 F.2d 970 (D.C. Cir.1984) (en banc), cert. denied, 471 U.S. 1127, 105 S.Ct. 2662, 86 L.Ed.2d 278 (1985); Lewis v. Time, Inc., 710 F.2d 549 (9th Cir.1985); Steinhilber v. Alphonse, 68 N.Y.2d 283, 508 N.Y.S.2d 901, 501 N.E.2d 550 (1986); Camer v. Seattle Post-Intelligencer, 45 Wn.App. 29, 723 P.2d 1195 (1986).
In formulating the appropriate standard in this case, we might well use "argument" as a synonym for "opinion," since we deal with the question whether the words complained of were part of an attempt by the defendants to persuade their readers that a governmental act by the city council was wrong. We must also recognize that the language of public commentary is almost limitless in its richness and variety, frequently intermixing statements of fact with evaluations, conclusions, and argumentation. Any standard for determining whether a particular piece of commentary is actionable must, for example, leave considerable room for "rhetorical hyperbole." Greenbelt Cooperative Publishing Assoc. v. Bresler, 398 U.S. 6, 14, 90 S.Ct. 1537-42, 26 L.Ed.2d 6, 15 (1970) (developer's negotiating tactics in zoning case called "blackmail"); Old Dominion Branch 496, National Assoc. of Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974) ("scab" defined as traitor to his God, his country, his family, and his class). It is
In Lewis v. Time, Inc., supra, the court identified three factors in determining whether a statement expresses fact or opinion. These factors were (1) whether the words would be understood in a defamatory sense, (2) whether the statements were made in public debate, a heated labor dispute, or other circumstances in which fiery rhetoric is expected, and (3) whether the language of the statement is more likely to be understood as a statement of opinion than as fact. 710 F.2d at 553.
In Ollman v. Evans, supra, the D.C. Circuit elaborated the standard somewhat by setting out four factors to be considered. That court would consider (1) an analysis of the common usage or meaning of the language of the challenged statements, (2) the statement's verifiability, (3) the full context of the statement, that is, the entire article, and (4) the broader context or setting in which the statement appears. 750 F.2d at 979. We believe the Lewis and Ollman factors are simply restatements of the same standard. Any variations are accounted for by the different types of statements to which the standard is to be applied. Applying factors distilled from Lewis and Ollman, we readily conclude that the article in this case, considered as a whole, constituted absolutely protected opinion.
(1) Would the words used here be understood in a factually defamatory sense?
No words in the Jennings column attributed any illegal conduct to AMCOR. The article attacked the city council, not AMCOR. In fact, it complimented AMCOR, though in a back-handed way, for "certainly doing exactly what it should be — making money." There was no allegation or even an implication that AMCOR was guilty of illegal or criminal conduct such as was involved in Cianci v. New Times Publishing Co., 639 F.2d 54 (2d Cir.1980) (article implied that mayor of Providence had committed rape and bribed victim not to prosecute) or in Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 397 N.Y.S.2d 943, 366 N.E.2d 1299 (1977) (allegation that judge was corrupt). No doubt the factual statements in the column implied that AMCOR was heedless of the public interest in its drive for profits. And surely AMCOR's product was disparaged by such statements. But the statements neither assert nor imply that AMCOR had engaged in criminal or morally repugnant behavior. All the statements, given the controversy, are in the nature of predictions of future events or conditions. They are quite clearly integral parts of the editor's argument that the Mesa City Council had failed in its public duty and that AMCOR's conduct had not been in the public interest.
We would have a different case if the statements at issue had taken the form of statements of past or even present illegal or morally repugnant fact, rather than predictions of the future. For example, if an editorial column commenting on maladministration of a public hospital were to assert that one of its physicians was known to be infected with a virulently contagious disease, a court might well treat the statement as one of defamatory fact not entitled to absolute constitutional protection.
(2) Are the statements capable of being objectively characterized as true or false?
At the outset we note that if particular expression consists entirely of "pure opinion," it is not actionable and no further analysis is required. Potomac Valve and Fitting, supra, 829 F.2d at 1288. In the case before us, many of the statements in the Jennings column, such as those characterizing the development as "absolute insanity" and a "cockamamie idea" are pure opinion and absolutely protected by the First Amendment.
There are some statements in the column that might be read as factual. For example, Jennings stated that the development lies in the bad weather landing pattern of Williams Air Force Base and that the Air Force had warned that training jets would fly at 1600 feet over the development. On
Many of the apparently factual statements in the column lacked precision and specificity. Assertions that people may have a difficult time conversing when aircraft are using the bad weather flight pattern and that residents will ultimately try to prohibit the Air Force from using the flight pattern are merely argumentative or are speculations that are not verifiable. Presidio Enterprises, Inc. v. Warner Brothers Distributing, 784 F.2d 674, 679-80 (5th Cir.1986). Individuals and newspapers alike are afforded absolute constitutional protection to voice spirited opinions on the "merits or demerits of a condition, cause or controversy, which is under public scrutiny." Information Control Corp., supra, 611 F.2d at 783.
The article did purport to recite certain "facts." But, as we have already indicated, those "facts" did not defame AMCOR and most are in the nature of predictions. In any event, merely because a commentary contains both opinion and alleged fact does not result in the article being actionable in tort. It is the rare commentary that will be totally devoid of supporting "facts" or premises. It is for this reason that most courts confronted with this issue appear to find no workable bright-line distinction between fact and opinion. In addition, it is important here that the primary target of Jennings' ire was the city council, not AMCOR. The fact that the statements as to the location of the bad weather landing pattern and the Air Force's warning might be verifiable does not justify ignoring the essential nature of the expression of which these statements were a part. Scott v. News-Herald, 25 Ohio St.3d 243, 496 N.E.2d 699 (1986).
The need for free and open debate on public issues and governmental action should not be chilled by rules requiring courts artificially to single out statements of fact and treat them in a vacuum, unrelated to the argument of which they are a part.
(3) Does the context in which the alleged defamatory statements were made indicate that they were to be understood as argument rather than undiluted statements of fact?
By context we mean here not only the internal structure of the writing in which the statements appear, but the place it occupies in the publication, as well as the wider social and political setting of the publication. On all these counts, the statements at issue clearly require protection as part of the public argument about an important public issue.
The article was a signed column carrying Max Jennings' name and photograph, the traditional format in American newspapers for columns of opinion and argument. It is labeled "Commentary" and is written in colloquial style, frequently in the first person. Jennings was identified as the executive editor of the Mesa Tribune. The column appeared on the editorial page of the newspaper under the heading "Opinion" in large, bold type. It ran directly under an editorial cartoon and is positioned to the right of an article entitled "Editorial" dealing with health care.
As the court in Ollman stated, the "Op-Ed page of a newspaper [is] the well-recognized home of opinion and comment." 750 F.2d at 990. The labeling of the article as "editorial" or "commentary" indicates that it constitutes opinion, Information Control Corp., supra, 611 F.2d at 784, even though such a label does not necessarily
As indicated, the column criticized a decision of elected public officials regarding zoning, residential development, safety, and the quality of life in a city near an Air Force base. It is simply impossible that anyone reading this column would fail to perceive that they were reading arguments aimed at persuading them that several of the members of their city council had, in the opinion of the writer, made a serious mistake.
The factors applied here to determine whether the Tribune column is entitled to absolute protection constitute guidelines for approaching the problem, not a wooden "test." They require the court to balance all the factors in a particular case. The balancing must always be informed by acute awareness of the public's need, reflected in the Constitution, for free debate on public issues.
We affirm the trial court's dismissal of the complaint.
ROLL and LIVERMORE, JJ., concur.