Context is Everything in Determining if a Statement is Defamatory
A recent holding in the Los Angeles Superior Court beautifully illustrates a point I have made here many times, and have explained to innumerable potential clients. But apparently, some attorneys still don’t embrace this reality.
Here are the facts, as set forth in the Court’s ruling, with additional information from news sources:
Michael Kassan is the former CEO and Chairman of MediaLink. According to its website, MediaLink is “the media & marketing industry’s most trusted and connected advisor, . . . specializing in defining the optimal path forward.”
MediaLink is a United Talent Agency (“UTA”) company, and apparently there was some acrimony between Kassan and UTA. Kassan sued UTA lawyer Bryan J. Freedman in Los Angeles Superior Court for slander and libel stemming from a statement the attorney made to Deadline (a news publication) in which he called Kassan a “pathological liar.” Freedman responded with an anti-SLAPP motion.
Freedman’s statement was found to satisfy the first prong of the anti-SLAPP analysis, both because it was “made in connection with an issue under consideration or review by a … judicial body,” and because it was a matter of public interest because the dispute between Kassan and UTA was extensively covered in the media.
In analyzing whether a complaint is a SLAPP, context is everything.
We attorneys often refer to the “totality of the circumstances,” and in the defamation context, that includes all the surrounding circumstances of the statement in question. In most circumstances, “pathological liar” would be viewed as non-actionable, hyperbolic language. As the Court explained:
“Statements do not imply a provably false factual assertion and thus cannot form the basis of a defamation action if they cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual.” (Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1401.) “Thus, ‘rhetorical hyperbole,’ ‘vigorous epithet[s],’ ‘lusty and imaginative expression[s] of . . . contempt,’ and language used ‘in a loose, figurative sense’ have all been accorded constitutional protection.” (Ibid.) “In drawing the distinction between opinion and fact, California courts apply the totality of the circumstances test to determine whether an allegedly defamatory statement is actionable.” (Ibid.)
In applying the totality of the circumstances test, “editorial context is regarded by the courts as a powerful element in construing as opinion what might otherwise be deemed fact.” (Morningstar, Inc. v. Superior Court (1994) 23 Cal.App.4th 676, 693.) “[T]he publication is to be measured not so much by its effect when subjected to the critical analysis of a mind trained in the law, but by the natural and probable effect upon the mind of the average reader.” (Id. at p. 688.) “Part of the totality of the circumstances used in evaluating the language in question is whether the statements were made by participants in an adversarial setting.” (Ferlauto, supra, 74 Cal.App.4th at p. 1401.) “Thus, where potentially defamatory statements are published in a public debate, a heated labor dispute, or in another setting in which the audience may anticipate efforts by the parties to persuade others to their positions by use of epithets, fiery rhetoric or hyperbole, language which generally might be considered as statements of fact may well assume the character of statements of opinion.” (Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 601.)
Here, the statement that Kassan was a “pathological liar” was made in the context of a highly publicized, contentious dispute between Kassan and UTA involving allegations in both directions. The Deadline article itself described the conflict as a “dogfight,” “messy battle,” and “great drama” involving the “embarrassing disintegration” of a $125 million deal. (Def.’s Ex. A.) Kassan’s own representatives “shot back,” referring to UTA as “[d]esperate people” making false and “absurd” accusations in “a pathetic attempt to tarnish his reputation.” Kassan’s representatives further accused UTA of filing a “frivolous” lawsuit to “mislead people” about Kassan. The article describes Kassan as “controversial” and “[n]o stranger to corporate intrigue.”
This context is critical to the totality of the circumstances test because it shows that the statement was made in an adversarial setting and heated dispute wherein the participants were expected to use epithets and hyperbole which an average reader would not take as fact. The article shows that Kassan himself accuses UTA of lying. Courts have found that accusations similar to calling someone a “liar” were nonactionable. (See Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 389 [“his statements that Franklin ‘stole’ copyrighted material, ‘compromised’ DDi, and ‘plagiarized’ data appear in context as rhetorical hyperbole”]; Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 279 [“Assuming that Scherer called plaintiff a thief and a liar, that statement was not, as a matter of law, defamatory under the undisputed circumstances here”].)
Making hyperbolic language actionable.
To that end, Kassan argued that Freedman had confirmed his statement as a factual assertion by explicitly characterizing it as such. Kassan cited to Sanders v. Walsh (2013) 219 Cal.App.4th 855, where an online poster prefaced his statements with “Fact:” and proceeded to recite “alleged historical facts detailing perjury and fraud by Cheryl Sanders.” However, Sanders is distinguishable because the poster there alleged specific historical facts about Cheryl Sanders awarding contracts to friends and family and taking bribes. The court found that these were not “vague implications of fact but . . . specific factual claims.”
Here, Freedman’s use of the word “fact” was less dispositive than the substance and context of the statements themselves. (See Herring Networks, Inc. v. Maddow (9th Cir. 2021) 8 F.4th 1148, 1153-60 [TV personality’s statement that a certain news outlet “really literally is paid Russian propaganda” was hyperbole even if it was arguably provable whether the outlet received money from Russia].) Freedman’s follow-up comment was a continuation of the ongoing dispute between the parties. The Court held that it did not transform the characterization of Kassan as a pathological liar from an expression of opinion into one of fact.
Even an opinion can still be actionable.
Does Civil Code § 47 apply?
The one thing I spotted that might make ruling appealable goes back to the first prong analysis. Some judges take the “made in connection with an issue under consideration or review by a … judicial body” language too literally. Generally a statement “in connection with a judicial body” is only protected if it somehow advances that litigation. In the Court’s first prong analysis, it seems to find that the statement was in connection with a judicial matter only because it was ABOUT a judicial matter. But even the Court appears to acknowledge this fact in the context of discussing whether the absolute litigation privilege of Civil Code § 47 applies:
Civil Code section 47(b) makes privileged a publication made “[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law.” (Civ. Code, § 47(b).) “To be privileged a statement must (1) be made in a judicial proceeding, (2) by litigants or other authorized participants, (3) aim to achieve the litigation’s objects, and (4) have some logical connection or relation to the proceeding.” (O’Keefe v. Kompa (2000) 84 Cal.App.4th 130, 134.)
The statement about Kassan’s character is arguably not a publication made in the course of a judicial proceeding nor logically connected to one, and arguably does not achieve the litigation’s objectives. As with above, because reasonable minds may differ as to the application of the privilege, it does not preclude the defamation claims as a matter of law.
In sum, while the privileges under Civil Code section 47 do not preclude the defamation claims as a matter of law, the defamation claims fail as a matter of law because they are based on a nonactionable statement of opinion. Because the complaint targets protected activity, and Plaintiff has failed to demonstrate a probability of success, the claims must be stricken under Code of Civil Procedure section 425.16.
Free Speech can be very free.
Here is a cut and paste from one of my anti-SLAPP motions, that explains these concepts in detail. In this case, my client has posted a Yelp review that refereed to the business owner as a “crook” and “should not to be trusted.” The business owner sued, claiming those statements were defamatory, and I had the case dismissed with an anti-SLAPP motion that contained these arguments and authorities:
Statements that are “‘broad, unfocused and wholly subjective comment,’ such as that the plaintiff was a ‘shady practitioner’, ‘crook’, or ‘crooked politician’” are regarded by courts as unactionable opinion. Copp v. Paxton (1996) 45 Cal.App.4th 829, 837. Here, the term “crook” cannot reasonably be understood as literally meaning Plaintiff committed a crime. See generally Reed v. Gallagher (2016) 248 Cal.App.4th 841, 859 (noting use of the term “crook” may be defamatory when under the totality of the circumstances it can be understood in the literal sense to mean that plaintiff committed a specific crime).
The statement was made online, which is an environment recognized as promoting “a looser, more relaxed communication style” in which users may “substitute gossip for accurate reporting and often adopt a provocative, even combative tone.” Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, 1162 -1163. Indeed, online discussions often look “more like a vehicle for emotional catharsis than a forum for the rapid exchange of information and ideas.” An average reader would be aware of this, and correspondingly understand that in absence of any specific facts in the Yelp post explaining how Plaintiff actually broke the law, the use of the term “crook” at most meant that Defendant’s experience with Plaintiff left her of the opinion that he could not be trusted. That this is the only reasonable interpretation of the vague term is bolstered by the very next assertion in the statement: “not to be trusted.”
As to the statement that Plaintiff is “not to be trusted,” while it does add spice to inflammatory language, it does not render the opinion defamatory. Charges of dishonesty can be actionable, but they too must “convey a factual imputation of specific dishonest conduct capable of being proved false.” Carver v. Bonds (2005) 135 Cal.App.4th 328, 346. For instance, in Milkovich v. Lorain (1990) 497 U.S. 1, 21, branding plaintiff a “liar” was actionable because the statement also implied the plaintiff committed perjury in a particular case, which was an objectively provable assertion of fact.
In contrast, “‘rhetorical hyperbole,’ ‘vigorous epithets,’ ‘lusty and imaginative expressions of contempt,’ and language used ‘in a loose, figurative sense’ have all been accorded constitutional protection.” Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1401. For example, in Standing Committee v. Yagman (9th Cir. 1995) 55 F.3d 1430, 1440, an attorney could not be disciplined for calling a judge “dishonest” because the word was only “one in a string of colorful adjectives” used that “together convey[ed] nothing more substantive than the attorney’s contempt.” In context, the word could not “reasonably be construed as suggesting that [the judge] had committed specific illegal acts,” and was thus mere “rhetorical hyperbole, incapable of being proved true or false.” Id. Similarly, “[t]he expression ‘keep him honest’ makes no factual imputation of specific dishonest conduct capable of being proved true or false,” and is therefore not actionable. Copp, supra, 45 Cal.App.4th at 838.
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