The Volokh Conspiracy
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I'm pleased to report that yesterday, a New Jersey appellate court affirmed a grant of summary judgment to the defendant in an interesting online libel case, Roberts v. Mintz. My students Jeremy Holmes and Melanie Rollins and I filed an amicus brief in the case, on behalf of Public Citizen, and with the invaluable help of local counsel Daniel Schmutter (now of Hartman & Winnicki). Here's an excerpt from the court's opinion:
We discern the following facts from the record, viewed in the light most favorable to plaintiffs as the non-movants.
In August 2008, defendant bought what he believed was a purebred Havanese dog from plaintiffs. One of the plaintiffs had represented to defendant that the dog was a healthy, nine-month-old, purebred Havanese. After taking the dog home, defendant allegedly learned from veterinarians that the dog was actually two years old, was not a purebred Havanese, and suffered from various health problems. He named the dog "Moose."
Later in August, defendant confronted plaintiffs with these findings, which they denied. Plaintiffs offered to refund his money in exchange for Moose, but defendant insisted on keeping Moose in addition to a refund. He claimed he had spent $800 in veterinary fees and had become fond of Moose. Plaintiffs refused.
Beginning in September 2008, defendant aired his dissatisfaction with plaintiffs in a series of posts on his personal blog titled "Rants and Raves," which appears on his personal website, www.biojobblog.com. His posts, in addition to relating his personal experience with plaintiffs, disclosed what he claimed to have learned about plaintiffs from other pet owners, pet activists, and public records. He also frequently referred to plaintiffs as "dog grifters," "scammers," "nefarious," and "amoral and unethical scumbags." …
On February 27, 2009, in a post titled, "The Dark Underside of New Jersey Dog Breeders: Revisited," defendant wrote, "For the past year or so, I have been dealing with Donna Roberts, a so-called dog breeder who recently was convicted in New Jersey on three counts of animal cruelty." The next allegedly defamatory remark appeared in an April 7, 2010 post, in which defendant stated, "The Vincentown address is where Dawn Roberts lives in a run down farmhouse with 6 children." This is a reference to the house where defendant bought Moose.
Defendant ratcheted up the rhetoric in his next two posts. In an April 27, 2010 post titled, "The Dog Grifters: Donna Roberts and Dawn Abrams Strike Again," defendant wondered how "these despicable human beings" "think that they can continue to get away with ripping people off …" Plaintiffs challenge a section of the following sentence where defendant declares, "eventually we will be able to shut down their fraudulent puppy mill ring! To that end, please pass the information along that nobody ought to buy dogs from these grifters!" The final post in this series was a May 3, 2010 entry titled, "Donna Roberts Responds: I am Innocent of All Charges—The Rest of the World is Guilty." Here he writes, "I frequently get messages from others, who, like me, were unwittingly scammed by Donna and her spawn after purchasing puppies and dogs from them." …
[W]e conclude [these statements] were non-actionable opinion. There are three elements of a cause for defamation: "'(1) the assertion of a false and defamatory statement concerning another; (2) the unprivileged publication of that statement to a third party; and (3) fault amounting at least to negligence by the publisher.'" "To determine if a statement has a defamatory meaning, a court must consider three factors: '(1) the content, (2) the verifiability, and (3) the context of the challenged statement.'"
In considering verifiability, our courts have drawn a line between opinions, which are not actionable, and statements of fact, which are. "A statement's verifiability refers to whether it can be proved true or false." A statement is actionable if it "'suggested specific factual assertions that could be proven true or false.'" Statements of opinion are usually not actionable, as opinions "'are generally not capable of proof of truth or falsity because they reflect a person's state of mind[.]'" But an opinion is actionable if "it implies 'reasonably specific assertions' of 'underlying objective facts that are false.'"
"Loose, figurative or hyperbolic language is not likely to imply specific facts" and thus is generally not actionable. Similarly, "epithets, insults, name-calling, profanity and hyperbole" are not actionable. "The higher the fact content of a statement," the more likely it is actionable….
Applying these principles, we consider first defendant's comment that Roberts lived in "a run down farm house" with six children. This merely conveys defendant's opinion of Roberts's home, and is therefore not actionable.
The two remaining statements present a closer issue. As noted, in the April 27, 2010 post, defendant called plaintiffs "grifters" and their business a "fraudulent puppy mill ring." The May 3, 2010 post alleged that defendant "frequently" received messages from "others" who also "were unwittingly scammed by Donna and her spawn after purchasing puppies and dogs from them."
We recognize that words like "grifters," "scammed," and "fraudulent" can be used to describe unscrupulous or deceptive business practices, and a "puppy mill" is a facility where puppies are bred, usually in inhumane conditions. However, our concern is not the meaning of these words in isolation, but rather their meaning in the context in which defendant said them. And three elements of context lead us to conclude that a reasonable reader would not take defendant's use of these words literally.
First, the words immediately surrounding these terms include sarcastic quips like "Despite a down economy, it appears that business for the dog grifting team of [Roberts and Abrams] is booming," and derisive insults such as "nefarious individuals," "despicable human beings," and "cronies." Second, defendant's invective grew more disparaging in response to comments left by readers claiming to be plaintiffs, which attacked defendant using incendiary language. The parties' exchange of insults suggests a reader would view defendant's words as barbs, hyperbole, and opinion—not fact.
Perhaps most importantly, defendant made these statements under the heading, "Rants and Raves," signaling to any reader that what followed were the author's personal viewpoints. See Summit Bank v. Rogers, (Cal. Ct. App. 2012) (fact that statements appeared in section of website entitled "Rants and Raves" indicated a reader would "view them with a certain amount of skepticism" and understand that "they will likely present one-sided viewpoints rather than assertions of provable facts"). That impression is reinforced by the fact that few of the blog posts included in this record are factual in nature. Given the profanity-laden, emotionally-charged context in which defendant used "grifters," "scammed," and "fraudulent puppy mill," a reader would not reasonably understand defendant as charging plaintiffs with a crime or fraud. Instead, a reasonable reader would interpret these statements as name-calling and hyperbole. See Greenbelt Coop. Publ'g Ass'n v. Bresler (1970) (stating that "even the most careless reader" would have interpreted an accusation of "blackmail" in the context of public negotiations as "rhetorical hyperbole").
Additionally, defendant did not assert specific, verifiable facts to support claims that plaintiffs operated a "fraudulent puppy mill" or "scammed" their customers. See Dice v. Johnson (M.D. Pa. 2010) (accusation that someone was a "notorious puppy broker" was not defamatory); NBC Subsidiary (KCNC-TV) v. Living Will Ctr. (Colo. 1994) (statement that company that sells living will forms is a "scam" was not defamatory because it did not imply "a verifiable fact" nor could "it reasonably be understood as an assertion of actual fact."). In the absence of "underlying objective facts" that could be proven true or false, defendant's accusations are more accurately classified as opinions.
[Footnote: We find compelling one commentator's observation that "verifiability often becomes intertwined with linguistic analysis; a lack of 'precise meaning,' such as for the word 'scam,' renders the description of a transaction as a scam 'incapable of being proven true or false.'" Nat Stern, Defamation, Epistemology, and the Erosion (But Not Destruction) of the Opinion Privilege, 57 Tenn. L. Rev. 595, 615 (1990); see also Lyrissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 Duke L.J. 855, 936-37 (2000) (suggesting that words like "scam" are often used loosely and should not be taken literally).]
In conclusion, the court properly dismissed plaintiffs' claims, as defendant's statements were non-actionable opinion, hyperbole, and epithets….