In Gardner v. Martino, the 9th Circuit handed down an important ruling that should be required reading for any opportunist looking to turn any crybaby’s hurt feelings into a defamation suit payday.
Tom Martino is a talk radio host who is prone to make the kinds of statements we expect from talk radio. He is hyperbolic, outspoken, rude, crude, and crass. One day he had Melissa Feroglia on the air. Feroglia was a disgruntled consumer who had a bad experience with Mt. Hood Polaris and complained about a jet ski she bought there and some apparently dishonest customer service she received. The dealer chose to file a defamation suit.
Martino filed a motion to dismiss under the Oregon Anti-SLAPP statute, Or. Rev. Stat. § 31.150. The lower court dismissed the claim, so Mt. Hood Polaris appealed to the 9th Circuit. The 9th reaffirmed that there must be some kind of damage to the plaintiff’s reputation before a defamation claim may properly lie. As a matter of law, it is up to the judge to determine if damage could be possible by examining the speech itself, since loose hyperbolic language is not capable of a defamatory meaning.
In Unelko Corp. v. Rooney, 912 F.2d 1049, 1053 (9th Cir. 1990), we held that the threshold question after Milkovich in a defamation claim is “whether a reasonable factfinder could conclude that the contested statement implies an assertion of objective fact.” If the answer is no, the claim is foreclosed by the First Amendment. (Op. at 4834)
The 9th then analyzed the talk show itself.
The Tom Martino Show is a radio talk show program that contains many of the elements that would reduce the audience’s expectation of learning an objective fact: drama, hyperbolic language, an opinionated and arrogant host, and heated controversy. (Op. at 4836)
As a result, even if the statements made were capable of a defamatory meaning in a vacuum, the proper analysis is to look at the context in which they are made – and then determine if a reasonable reader would interpret them as statements of fact. In this case, the court held that a reasonable listener would not — therefore, no defamation.
Hurtful though it may be, if it isn’t credible, it can’t be slander. While no one has (yet) claimed that Talk Radio is a civil rights issue for women, it clearly has a greater impact based on its far broader audience reach and far greater credibility than anonymous comments on Auto-Admit. And yet it is incapable of giving rise to actionable slander because it is what every reasonable person knows it to be: Hyperbolic commentary intended to feed the bias of its audience, with little concern for truth or accuracy.
The call to record and maintain the identities of these anonymous attackers is based upon the need to identify the miscreants so that the victims can go after them. But go after them for what? If Talk Radio doesn’t give rise to slander for lack of credibility, then how could an anonymous, baseless attack on a website be held sufficiently credible to maintain a slander action? It can’t, and it never should. It is not credible. It was never credible. There may be many hurt feelings, but there is no slander.
It occurs to me that rather than try to reconstruct the problem of anonymous nastiness and attacks as a womens rights issue to gain rhetorical and political advantage, and use it to seek legislation to curtail everyone’s free speech and shift liability to third parties by making them part of the cyber police patrol, the efforts would be far better spent pounding home the point that anonymous attacks online are worthless, incredible crap, and people who post them are the idiots of this cyber village. (source)
It is pretty rare that a legal theory is proven (or disproven) by a court so resoundingly and so quickly. However, as Greenfield previously identified — the liberal academic circle jerk isn’t interested in anything but applying lotion to one another. Fortunately, those of us who actually represent clients and deal with judges keep up on this kind of thing.