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Batson v. Shiflett3/12/1992
oners' also contend that, as a matter of law, their statements in Flyer No. 5 are immunized as an expression of opinion constitutionally protected in the absence of "actual malice." Although defamatory communications usually consist of statements of fact and statements merely representing a difference of opinion between the parties usually are not actionable, an expression of opinion or of a suspicion or belief may be actionable. See Restatement (Second) of Torts ยง 566 (1977).
Furthermore, caselaw does not support petitioners' assertion. In Milkovich v. Lorian Journal Co., 487 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), the Supreme Court warned about creating a "wholesale defamation exemption for anything that might be labeled 'opinion.'" 497 U.S. at ,
110 S.Ct. at 2705, 111 L.Ed.2d at 17. Recognizing that "expressions of 'opinion' may often imply an assertion of objective fact," id., the Court explained that a false statement of fact cannot escape liability for defamation by labeling it an opinion. See also Cianci v. New York Times Pub. Co., 639 F.2d 54, 60 (2d Cir.1980); Rinaldi v. Holt, Reinhart & Winston, Inc., 42 N.Y.2d 369, 381, 397 N.Y.S.2d 943, 950-51, 366 N.E.2d 1299, 1307 (N.Y.), cert. denied, 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456 (1977).
Petitioners' public accusations to the union membership and company officials that Shiflett committed "crimes" and that he misused and embezzled union funds also cannot be considered "mere rhetorical hyperbole" deserving of constitutional protection. Rather, the impact of petitioners' statements is that Shiflett, in fact, was guilty of these various crimes. The Court addressed this issue in Milkovich, supra, where it determined whether a newspaper article, which stated that the plaintiff lied at a hearing, could be defamatory. The Court stated that the dispositive question is whether a reasonable factfinder could conclude that the statements in the column imply that the plaintiff perjured himself in a judicial proceeding, and answered this question affirmatively. The Court explained:
"This is not the sort of loose, figurative or hyperbolic language which would negate the impression that the writer was seriously maintaining petitioner committed the crime of perjury. Nor does the general tenor of the article negate this impression."
497 U.S. at , 110 S.Ct. at 2707, 111 L.Ed.2d at 19. See also Cianci, 639 F.2d at 64. The Milkovich Court specifically distinguished the statements in Greenbelt Pub. Assn. v. Bresler, 398 U.S. 6, 14, 90 S.Ct. 1537, 1542, 26 L.Ed.2d 6, 15 (1970) (use of the word "blackmail" to characterize developer's negotiating position with city council was "no more than rhetorical hyperbole, a vigorous epithet used by those who considered [the developer's] negotiating position extremely unreasonable."); Hustler Magazine, 485 U.S. at 50, 108 S.Ct. at 879, 99 L.Ed.2d at 48 (First Amendment
precluded recovery under state emotional distress action for ad parody which "could not reasonably have been interpreted as stating actual facts about the public figure involved"); and Letter Carriers v. Austin, 418 U.S. 264, 284-86, 94 S.Ct. 2770, 2781-82, 41 L.Ed.2d 745, 761-63 (1974) (use of the word "traitor" in literary definition of a union "scab" was not basis for a defamation action under federal labor law since used "in a loose, figurative sense" and was "merely rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members").
Petitioners' statements are not protected as permissible within the context of a labor dispute or as mere opinion. We agree with the trial court's conclusion that petitioners' statements were capable of a def
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