The Volokh Conspiracy
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Baseball Libel
From Gabbert v. Star Tribune Media Co., LLC, decided yesterday by the Minnesota Court of Appeals (Judge Francis Connolly, joined by Presiding Judge Michelle Larkin and Judge Jill Flaskamp Halbrooks):
Following an incident at an August 2018 Twins game in Target Field, the Twins issued a trespass notice banning appellant Jason Gabbert from Target Field for a year. Appellant brought a negligence action against the Twins, seeking to prevent enforcement of the ban (the 2018 litigation). The Twins moved for summary judgment, and the district court granted the motion on the ground that the Twins were a private entity leasing Target Field and could issue trespass notices as they wished.
The Star Tribune newspaper published items by reporters Randy Furst and Rochelle Olson and columnist Patrick Reusse, as well as letters by Gail Van Der Linden and Susan Seim; plaintiff sued the newspaper and the letter writers, but the court held he had no case. As to the Furst and Olson articles,
The most significant item that appellant claims is defamatory is the Furst Report, published on November 15 and 16, 2018, in the online and print versions of the Star Tribune. Furst interviewed appellant and quoted him several times in the report. The headline of the online version was, "Twins fan banned from Target Field over pursuit of baseballs goes to bat to stay at games"; an introductory paragraph in smaller type read, "Twins officials say Jason Gabbert, who chases baseballs thrown to fans in stands, has been disruptive, but he disagrees. One judge has already backed the team." The district court concluded that "[t]he statements from the Furst Report materials … are fair and accurate statements as to the 2018 Litigation and are subject to the fair reporting privilege" because they fairly reflect appellant's disagreement with the Twins' evidence, and his disagreement with the substance of those statements "do[es] not defeat application of the privilege."
Appellant contends that "the district court erred in failing to find that the Furst Report is an inaccurate and unfair summary" of his 2018 litigation with the Twins. He specifically challenges the sentence "One judge has already backed the team," which he claims would cause readers to think that a court had found that appellant deserved the trespass notice and that the allegations of misconduct in the Furst Report were credible…. [But] "One judge has already backed the team" was supported by the fact that a district court judge had granted the Twins' motion and dismissed appellant's 2018 complaint seeking to enjoin enforcement of the no trespass order….
Appellant's argument—that both the inclusion of "additional contextual material" in the Furst Report and the "omission of a pertinent fact, the court's findings" from the Furst Report defeat the fair reporting privilege—is based on a misunderstanding of the privilege. Larson extended the privilege to hold that it "protects news reports that accurately and fairly summarize statements about a matter of public concern." A news report is not required either to provide every fact or to omit information that some may consider merely contextual in order to be protected by the privilege. The Furst Report was entitled to the fair reporting privilege [and the same reasoning applies to the Olson Report].
As to the letters to the editor and the Reusse column,
The Van Der Linden letter, directed to appellant, said in relevant part:
[Y]ou have no desire to be a well-mannered, polite fan in the stands, especially when a baseball finds its way into your vicinity. … [O]ther fans have no right to obtain a prized game souvenir when you're within arm's reach or tackle zone. … [Y]ou are thumbing your nose at the Twins organization which [has] … giv[en] you a no-trespass notice for a year by professing you have no intention of staying away.
The Seim letter, published a few days later, said:
Regarding the lovely picture of our local baseball snatcher … [w]ouldn't it be more useful to follow the wise practice of omitting a perpetrator's name and image when reporting "crimes," so as not to create much-desired notoriety? [Appellant] continues to gain fame through his narcissistic behavior. Yet again, he wins.
These letters express the writers' opinions of appellant, his conduct, and the Twins' response. The district court pointed out that the letters-to-the-editor section of a newspaper is "a forum for expressing opinions," and letters often express the writers' opinions of what has appeared in the paper. The district court also observed that Van Der Linden "expresses her opinion that [appellant] should be ashamed of his reported behavior" and that Seim's "use of quotations around the word 'crimes' suggests she is aware that [appellant] did not actually commit a crime" so her letter "cannot reasonably be interpreted as a factual statement that [appellant] committed a crime." We agree.
Appellant also argues that Van Der Linden's statement that Twins fans who saw appellant's picture in the newspaper could either stay away from him or wear protective gear when seated near him would cause reasonable readers to leave or to "brace themselves for physical contact" with appellant. But that statement, as appellant concedes in his brief, is not fact but hyperbole, and hyperbole is nonactionable as a matter of law.
Finally, appellant also argues that Seim's references to a "baseball snatcher," a "perpetrator of crimes," and the "narcissistic behavior" of a Harry Potter character known as "He-Who-Must-Not-Be-Named" were defamatory. But these statements, like Van Der Linden's, were expressions of opinion, not of fact. The quotation marks around "crimes" indicate Seim's awareness that appellant was not guilty of an actual crime and had not been arrested or prosecuted for any crime; again, readers could consult the Furst Report to determine whether appellant was a perpetrator of crime. Finally, Seim's view that appellant's behavior was comparable to that of the narcissism of a fictional character is clearly a matter of opinion. Neither the Van Der Linden letter nor the Seim letter rises to the level of defamation because neither asserts any facts.
For the same reason, the section of the Reusse sports column that appellant views as defamatory is a reference to an unpopular golfer whom Reusse compares to "a Target Field ball hog triumphantly holding a foul ball after wrestling it from a 6 year old girl." Appellant argues that "the timing of the column and statements are sufficiently similar to language used in the other published materials to make the assertions sufficiently recognizable as a reference to [appellant]." But, to be defamatory, a statement must refer to a specific individual. As the district court noted, the statements about the unpopular golfer had nothing whatever to do with appellant or his conduct, and no reference was made to appellant taking a ball from any child, let alone specifically from a girl aged six. The district court concluded that, because the statement was not a recognizable reference to appellant, it was not defamatory. We agree.
Moreover, like the letters, the Reusse Column was a statement of opinion, not of fact; it merely conjectured that spectators at a golf course would greet an unpopular golfer the same way they would greet someone who had wrestled a baseball away from a child. There was no factual basis to the comparison. Appellant asserts that readers of the Reusse Column "need only believe that Reusse was referring to [appellant] having committed an act of wrongdoing that earned him mention in the column" for the column to be defamatory. By that standard, anyone mentioned in any context, humorous or otherwise, as committing any "act of wrongdoing" could claim defamation. That notion is contrary to the law and defies basic common sense.
