Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
2021-03-02 Select Board Packet
Town of Reading Meeting Posting with Agenda This Agenda has been prepared in advance and represents a listing of topics that the chair reasonably anticipates will be dis cussed at the meeting. However the agenda does not necessarily include all matters which may be taken up at this meeting. Page | 1 2018-07-16 LAG Board - Committee - Commission - Council: Select Board Date: 2021-03-02 Time: 7:00 PM Building: Location: Address: Agenda: Revised Purpose: General Business Meeting Called By: Caitlin Saunders on behalf of Chair Notices and agendas are to be posted 48 hours in advance of the meetings excluding Saturdays, Sundays and Legal Holidays. Please keep in mind the Town Clerk’s hours of operation and make necessary arrangements to be sure your posting is made in an adequate amount of time. A listing of topics that the chair reasonably anticipa tes will be discussed at the meeting must be on the agenda. All Meeting Postings must be submitted in typed format; handwritten notices will not be accepted. Topics of Discussion: This Meeting will be held remotely on Zoom and streamed live on RCTV as usual. Public participation at this meeting: 1. We will allocate 15 minutes for public comment at ~8:20 PM on March 2nd, 2021. 2. Public comment must include full name and address, not include disparaging statements and have content of not more than 2 minutes. 3. Please indicate your desire to speak at the meeting by sending an email to the board selectboard@ci.reading.ma.us no later than 5 pm on Tuesday, March 2nd, 2021. 4. We will respond to you on the night of the meeting with information to join the Zoom at the appropriate time in the waiting room and will let you in to speak in person subject to the above rules—after you speak, we will have you leave the zoom meeting whil e the next speaker is allowed to join. You will be able to watch the meeting on RCTV, Facebook Live or YouTube. 7:00 Overview of Meeting 7:05 Executive Session – to discuss strategy with respect to civil court and administrative actions involving 59 Middlesex Ave. and Catherine Rawson, as personal representative of the Estate of Alan Greenough; and, Anthony Perrotti v. Town of Reading, et. al., and Town of Reading Meeting Posting with Agenda This Agenda has been prepared in advance and represents a listing of topics that the chair reasonably anticipates will be dis cussed at the meeting. However the agenda does not necessarily include all matters which may be taken up at this meeting. Page | 2 to approve executive session minutes for: November 17th, 2020 December 8th, 2020 December 15th, 2020 January 5th, 2021 January 26th, 2021 February 16th, 2021 8:00 Covid-19 Response 8:10 Liaison Reports 8:20 Public Comment 8:35 Vote to approve Results of public Debt Sale & authorize MWRA debt 10 8:45 MassDOT – Update on Main Street Road 26 9:45 Vote to confirm Remote Participation for Annual Town Meeting 60 9:50 April 2021 Elections Update 10:00 Vote to close warrant – Annual Town Meeting 61 10:10 Vote to determine the Maillet Land is no longer needed for the purpose it was acquired and should be transferred to Conservation Commission (See M.G.L. c.40, s.15A.) 81 10:20 Approve Meeting Minutes 102 10:30 Future Meeting Agenda Topics Correspondence • Email from Walt Tuvell, re: Question about OML • Email from Mystic Valley Elder Services, re: Be safe • Email from MWRA Advisory Board, re: Feb 2021 Board meeting • Email from Mystic Valley Elder Services, re: Book your vaccine appointment • Email from Mike Lacey, re: request to speak • Email from Walt Tuvell, re: double talk about publishing minutes 106 Town of Reading Meeting Posting with Agenda This Agenda has been prepared in advance and represents a listing of topics that the chair reasonably anticipates will be dis cussed at the meeting. However the agenda does not necessarily include all matters which may be taken up at this meeting. Page | 3 • Email from National Civic League, re: Webinar • Email from Jackie McCarthy, re: request to speak • Email from Ed Thomas, re: feb 16 • Email from Walt Tuvell, re: double talk about publishing minutes • Email from Walt Tuvell, re: double talk about publishing minutes • Email from Laura Gemme, re: papers 2021 • Email from Mike Lacey, re: public comment • Email from Mass Cultural Council, re: Community Initiative • Email from Lisa Egan, re: covid vaccine update • Email from Walt Tuvell, re: continuation of discussion • Email from DLS Alerts, re: new IGR • Email from Jackie McCarthy, re: public records access policy • Email from Lynn Landes, re: you can make a positive impact • Email from DLS Alerts, re: City & Town Feb 18th • Email from Greg Burns, re: weekly notes • Email from DLS Alerts, re: CvRF-MP Supplemental Guidance • Email from anonymous, re: writing on the wall • Email from Karen Herrick, re: town forest • Email from Bob LeLacheur, re: Deputy Chief Naming • Email from David Zeek, re: biomass • Email from MWRA Advisory Board, re: survey • Email from DLS Alerts, re: local assessment bureau chief • Email from Lisa Egan, re: how does an extra $300 sound • Email from David Zeek, re: RCAC recommendation • Email from Vivek Soni, re: RCAC recommendation • Email from Jackie McCarthy, re: water tank • Email from Bob LeLacheur, re: press release • Email from Bob LeLacheur, re: vote by mail • Email from Bob LeLacheur, re: budget doc • Command Meeting Notes 2/8 Town of Reading Meeting Posting with Agenda This Agenda has been prepared in advance and represents a listing of topics that the chair reasonably anticipates will be dis cussed at the meeting. However the agenda does not necessarily include all matters which may be taken up at this meeting. Page | 4 • Command Meeting Notes 2/21 • Email from Walt Tuvell. re; opinion vs. fact Office of the Town Manager 781-942-9043 16 Lowell Street townmanager@ci.reading.ma.us Reading, MA 01867 www.readingma.gov/town-manager To: Select Board From: Robert W. LeLacheur, Jr. CFA Date: February 24 2021 RE: Agenda for March 2, 2021 meeting The meeting will begin at 7:00pm with an Overview and then the Board will vote to convene in Executive Session, returning approximately at 8:00pm. Incident Command will then give a Covid-19 update, to be followed by Liaison reports and public comment. Treasurer Endri Kume will then ask the Board to approve a public debt sale of $12.4 million ($10.4 million water, $1 million sewer, $1 million storm water) as well as to authorize some low-cost borrowing from the MWRA. All of this debt was previously approved by Town Meeting. MassDOT will be in to provide the Board and the public an update on the so -called Road Diet on Main Street. Recall that the project began with an opportunity to get significant funding to repave Main Street from border-to-border, except for a small portion between the train tracks and Route 129 that is town owned. Various twists and turns with locations to conduct trial road diets and then change construction schedules because of the pandemic ensued. MassDOT will provide an update that covers revised constructions schedules and decision points. Please see your meeting packet for their presentation. Moderator Alan Foulds will visit the Board to request another remote (via Zoom) Town Meeting be held for the upcoming Annual Town Meeting in late April 2021. Town Clerk Laura Gemme will provide the Board on update for the early April upcoming local elections – we expect the House to file a bill shortly to extend the March 31st date to be June 30th. The Board will then vote to close the Warrant for the local election & state primary, as well as the Warrant for Annual Town Meeting. I will review each article in turn, most are routine or easy to understand. The Article about the Maillet land will blend into the next discussion about a related vote the Board is requested to take, so I’m happy to explain these items together. The meeting will conclude with approval of Minutes and a look at future agendas. January 22, 2021 Mr. Ryan A. Percival, P.E. Town Engineer Town of Reading 16 Lowell Street Reading, MA 01867 RE: MWRA I/I Local Financial Assistance Program: March 2021 Funding Distribution Town of Reading Sewer System Rehabilitation: Study / Design / Construction MWRA Project No. WRA -P11 -28-3 -1164 Dear Mr. Percival: The MWRA acknowledges receipt of your application for assistance under the MWRA’s I/I Local Financial Assistance Program. The above project includes I/I investig ation, design , and construction of sewer rehabilitations within the Town of Reading. Overall sewer project cost is estimated at $1,240,000. Eligible MWRA financial assistance is $1,040,000 (MWRA Phase 12 funds). The MWRA approves this project for funding pending resolution of the following issue: 1. The loan portion of the financial assistance award will require the issuance of a Sewer Bond or other documentation verifying obligation of the community to repay the loan to the MWRA. An Opinion of Bond Counsel will be required with the Sewer Bond or any other proposed obligation for repayment. If wording other than the Sewer Bond is proposed, approval of the MWRA will be required. The community’s bond counsel representative (Charlene Doucette, Locke Lord, LLP) has been notified of this funding request and will contact appropriate community officials for specific Sewer Bond information. Once the above issue is resolved, the MWRA will provide the community with a financial assistance award amount of $1,040,000 , of which $780,000 shall be in the form of a grant and $260,000 shall be in the form of an interest-free loan. The interest-free loan portion will be repaid to the MWRA in ten equal payments ($26,000), over a ten-year period, beginning February 15, 2022. Funding distribution is planned for March 4, 2021. The MWRA award amount will be deposited into the community-designated MMDT Account No. 44257384. Financial Assistance / Loan Agreements will be forwarded to the community later this month for final signature. Mr. Ryan A. Percival, P.E. Page 2 If you have any questions or comments relating to this matter, please do not hesitate to e -mail me at israel.alvarez@mwra.com or contact me on my cell phone at (617) 645-8574. Sincerely, Massachusetts Water Resources Authority Israel D. Alvarez, Project Manager MWRA Community Support Program cc: Robert W. LeLacheur, Jr., Town Manager Alex Rozycki, P .E., Sr. Civil Engineer Endri Kume, Town Treasurer Rob Musci, P .E., CDM Smith Lisa Gove, P.E., CDM Smith Charlene Doucette, Locke Lord LLP Carl Leone, P.E., MWRA Community Support Program Summary: Reading, Massachusetts; General Obligation Primary Credit Analyst: Felix Winnekens, New York + 1 (212) 438 0313; felix.winnekens@spglobal.com Secondary Contact: Anthony Polanco, Boston + 1 (617) 530 8234; anthony.polanco@spglobal.com Table Of Contents Rating Action Stable Outlook Credit Opinion Related Research WWW.STANDARDANDPOORS.COM/RATINGSDIRECT FEBRUARY 11, 2021 1 Summary: Reading, Massachusetts; General Obligation Credit Profile US$12.4 mil GO mun purp loan bnds ser 2021 due 10/01/2040 Long Term Rating AAA/Stable New Reading GO Long Term Rating AAA/Stable Affirmed Reading GO (MBIA of Illinois) Unenhanced Rating AAA(SPUR)/Stable Affirmed Many issues are enhanced by bond insurance. Rating Action S&P Global Ratings has assigned its 'AAA' long-term rating to Reading, Mass.' series 2021 general obligation (GO) municipal-purpose loan bonds and affirmed its 'AAA' rating on the town's existing GO debt. The outlook is stable. Reading's GO bonds are eligible to be rated above the sovereign because we believe the town can maintain better credit characteristics than the nation in a stress scenario. Under our criteria, titled "Ratings Above The Sovereign: Corporate And Government Ratings—Methodology And Assumptions" (published Nov. 19, 2013), U.S. local governments are considered to have moderate sensitivity to country risk. Reading's GO pledge is the primary source of security on the debt; this severely limits the possibility of negative sovereign intervention in the payment of the debt or operations of the town. The institutional framework in the nation is predictable for local governments, allowing them significant autonomy, independent treasury management, and no history of government intervention. Reading has considerable financial flexibility, as demonstrated by the very high general fund balance as a percent of expenditures, as well as very strong liquidity. Reading pledges its full faith and credit, within the limitations of Proposition 2-1/2, to secure the bonds. Officials intend to use series 2021 bond proceeds to primarily fund various water and sewer projects. We rate the limited-tax GO debt based on the application of our "Issue Credit Ratings Linked To U.S. Public Finance Obligors’ Creditworthiness" criteria (published Nov. 20, 2019). We are rating the obligation at the same level as our view of Reading's general creditworthiness. Any limitation imposed on the obligor's ability to raise revenue is already embedded in the rating. Therefore, we are not making a rating distinction. Credit overview Reading is a small residential community just outside of Boston and part of the Boston-Cambridge-Newton metropolitan statistical area (MSA). Residential and commercial development in its downtown is ongoing and also spreading to other parts of the town. Notably, the pandemic has not slowed this economic momentum but even boosted real estate prices, especially for single-family homes, given Reading's favorable location. As a result, assessed values continue to rise, supporting the stability of Reading's largest revenue source, property taxes, and allowing the WWW.STANDARDANDPOORS.COM/RATINGSDIRECT FEBRUARY 11, 2021 2 town to keep tax rates fairly stable and maintaining strong levels of levy capacity. Repeat strong budgetary performance even throughout the pandemic has afforded Reading with very strong budgetary flexibility. That said, Reading's large pension and other postemployment benefit (OPEB) obligations and especially its high carrying charge constrain the rating, notwithstanding the town's commitment to fully fund pensions by 2029. The stable outlook is underpinned by our expectation that management will continue making necessary budgetary adjustments to maintain strong performance. We will monitor the economic and financial impact from a second wave of COVID-19 infections and the pace of the economic recovery. For more information on COVID-19's effect on U.S. public finance, see "Outlook For U.S. Local Governments: Revenue Pressures Mount And Choices Get Harder," published Jan. 6, 2021, and "Staying Home For The Holidays," published Dec. 2, 2020, both on RatingsDirect. The rating reflects our view of Reading's: • Very strong economy, with access to a broad and diverse metropolitan statistical area (MSA); • Strong management, with good financial policies and practices under our Financial Management Assessment (FMA) methodology; • Strong budgetary performance, with operating surpluses in the general fund and at the total governmental fund level in fiscal 2019; • Very strong budgetary flexibility, with an available fund balance in fiscal 2019 of 24% of operating expenditures; • Very strong liquidity, with total government available cash at 47.0% of total governmental fund expenditures and 11.9x governmental debt service, and access to external liquidity we consider strong; • Very strong debt and contingent liability profile, with debt service carrying charges at 4.0% of expenditures and net direct debt that is 30.8% of total governmental fund revenue, as well as low overall net debt at less than 3% of market value and rapid amortization, with 93.3% of debt scheduled to be retired in 10 years, but a large pension and OPEB obligation; and • Strong institutional score. Environmental, social, and governance factors We have analyzed Reading's environmental, social, and governance risks relative to the town's economy, budgetary outcomes, management, and debt and long-term liability profile, and view them as generally consistent with those of the sector. Stable Outlook Downside scenario We could lower the rating if operating performance weakens, if there is a sharp increase in fixed costs, leading to a significant decline in reserves, or if the town fails to adhere to current management practices and financial policies. WWW.STANDARDANDPOORS.COM/RATINGSDIRECT FEBRUARY 11, 2021 3 Summary: Reading, Massachusetts; General Obligation Credit Opinion Very strong economy We consider Reading's economy very strong. The town, with an estimated population of 26,365, is in Middlesex County in northeastern Massachusetts, about 10 miles north of Boston. It is in the Boston-Cambridge-Newton MSA, which we consider broad and diverse. It has projected per capita effective buying income of 171% of the national level and per capita market value of $216,994. Overall, market value grew by 4.6% over the past year to $5.7 billion in 2021. The county unemployment rate was at a multiyear low of 2.3% in 2019 but spiked as a result of the pandemic and associated stay-at-home restrictions. Following a peak at 15% in June 2020, the unemployment rate recovered to 6% in December 2020. Reading's tax base continues to expand, with several larger residential projects under development or nearing completion. This growth has been spurred by zoning changes and a more streamlined permitting process. Management reports that real estate activity remained robust during the pandemic, with high demand for single-family homes in particular. With some of the development activity spreading outside of the downtown area as well, we expect continued growth during and beyond the outlook period. We understand the town received about $28 million in grant funding, which it used to support small businesses that were hit by the pandemic and associated lockdown restrictions. Overall, we expect Reading will maintain a very strong economy, as indicated by its high wealth and market value levels. Reading's property tax base is 92% residential and the 10 leading taxpayers represent 3.7% of assessed value, which is very diverse. Strong management We view the town's management as strong, with good financial policies and practices under our FMA methodology, indicating financial practices exist in most areas, but that governance officials might not formalize or monitor all of them on a regular basis. Key management practices include detailed budgetary assumptions, consistent budget monitoring, and long-term planning. Management analyzes five years of past trends and incorporates current and future forecasts when determining the town's revenue and expenditure assumptions. Budget-to-actual performance is reported monthly to each department and quarterly to the town board. The town maintains a detailed 10-year capital improvement plan that outlines specific projects and funding sources. It also keeps a long-term financial plan that forecasts 12 years of revenue and expenditures. Sound financial policies for the town include formal investment and reserve policies. Reading has adopted commonwealth guidelines for its investment management policy. Holdings and earnings on investments are monitored and filed monthly; however, there are no official reporting requirements. The town's reserve policy requires that cash reserves be maintained at a level of at least 7% of the current budget. While Reading has a formal debt and capital policy, in our opinion, it lacks comprehensive guidelines pertaining to the issuance of debt. We view positively the steps management has taken to protect the town from emerging threats, such as cyber risks. WWW.STANDARDANDPOORS.COM/RATINGSDIRECT FEBRUARY 11, 2021 4 Summary: Reading, Massachusetts; General Obligation Strong budgetary performance Reading's budgetary performance is strong in our opinion. The town had operating surpluses of 5.8% of expenditures in the general fund and of 5.5% across all governmental funds in fiscal 2019. In our assessment, we account for lingering risks presented by the pandemic to the economic recovery and the town's revenue, especially from state aid. Our analysis of the town's performance adjusts recurring payments in lieu of taxes into the general fund from the electrical fund as revenues. We understand the town expects it will have ended with fiscal 2020 with another healthy surplus of about $4 million. Thanks to strong revenue collection up until March 2020, when the pandemic hit and lockdown restrictions were implemented, revenue came in about $1 million over budget. On the expense side, the town has a good track record of unexpended appropriations. Together with some expense savings as town staff moved to remote working and the pandemic delayed some hiring, overall savings on the expense side amounted to about $3 million. Reading benefits from the stability of its largest revenue source, property taxes, which account for around 71% of general fund revenue. Following the onset of the pandemic, it reduced its fiscal 2021 budgeted revenue to $102.9 million, from $105.3 million in the initial budget proposal. So far in fiscal 2021, we understand revenue is closely tracking budgeted figures. In addition, the town is generating some savings from energy costs in its school buildings and a premium holiday from its health insurance company. It received about $2.2 million in Coronavirus Aid, Relief, and Economic Security Act funding, which it has to spend by year-end. Other pandemic-related costs will be reimbursed through the Federal Emergency Management Agency. Overall, we believe Reading will maintain its track record of positive financial performance. Management has demonstrated its ability and willingness to make necessary budgetary adjustments to reflect changing revenue and expenditure expectations, as seen during the pandemic. This will help Reading address potential medium-term challenges with future state aid payments, for which there is still a high degree of uncertainty. Very strong budgetary flexibility Reading's budgetary flexibility is very strong, in our view, with an available fund balance in fiscal 2019 of 24% of operating expenditures, or $24.1 million. The town has consistently maintained a healthy fund balance with steady increases over the past three fiscal years. Although it has relied on the use of fund balance to balance its budget each year, it typically generates enough revenue so the use of appropriated funds is not necessary. Management states that there are no plans to spend down reserves and that it expects to at least maintain, if not increase, fund balance. Considering surplus results expected for fiscal 2020 and likely again in fiscal 2021, we expect Reading will preserve its very strong budgetary flexibility. Very strong liquidity In our opinion, Reading's liquidity is very strong, with total government available cash at 47.0% of total governmental fund expenditures and 11.9x governmental debt service in 2019. In our view, the town has strong access to external liquidity if necessary. We expect Reading's liquidity profile will remain very strong, as there is no expectation of significant reduction of cash balances. The town also maintains strong access to external liquidity by frequently issuing debt for any capital project WWW.STANDARDANDPOORS.COM/RATINGSDIRECT FEBRUARY 11, 2021 5 Summary: Reading, Massachusetts; General Obligation needs. In addition, we do not consider its use of investments aggressive. Reading does not have any variable-rate or direct-purchase debt, reducing its exposure to any contingent liquidity risks. Very strong debt and contingent liability profile In our view, Reading's debt and contingent liability profile is very strong. Total governmental fund debt service is 4.0% of total governmental fund expenditures, and net direct debt is 30.8% of total governmental fund revenue. Overall net debt is low at 0.6% of market value, and approximately 93.3% of direct debt is scheduled to be repaid within 10 years, which are in our view positive credit factors. Following this issuance, Reading will have approximately $45.4 million in total direct debt with about $9.6 million considered self-supporting debt. The town has about $6.1 million in authorized but unissued debt, which it may issue within or beyond the outlook period. Pension and OPEB liabilities • In our opinion, a credit weakness is Reading's large pension and OPEB obligation, particularly given the pension system's relatively high carrying charges. • Although the use of an actuarially determined contribution (ADC) is a positive, we believe some of the assumptions used to build the pension ADC reflect what we view as slightly weak assumptions and methodologies, which we believe increases the risk of unexpected contribution escalations. • Although OPEB liabilities are funded on a pay-as-you-go basis, which, given claims volatility as well as medical cost and demographic trends, is likely to lead to escalating costs, the city has legal flexibility to alter OPEB benefits, which we view as a potential means of mitigating escalating costs. The town participates in the following plans: • Reading Retirement System: 72.6% funded, with a net pension liability of $36.5 million as of Dec. 31, 2018. • A single-employer, defined-benefit health care plan (OPEB): 7.1% funded, $68.5 million net OPEB liability. Reading's combined required pension and actual OPEB contributions totaled 9.2% of total governmental fund expenditures in 2019. Of that amount, 5.0% represented required contributions to pension obligations, and 4.0% represented OPEB payments. The town makes its full annual required pension contribution annually. Massachusetts requires all pension systems to achieve full funding no later than 2040 and Reading has planned to achieve full funding by 2029. We generally view closed, short amortization schedules as positive, but for Reading to meet its adopted funding schedule to achieve full funding by 2029, costs will likely rise, considering its funded ratio (for more information, please see "Pension Spotlight: Massachusetts," Oct. 14, 2020). While we believe costs are currently manageable for Reading, we expect they will rise. Reading has established a postemployment health insurance trust fund with a $10.2 million balance in fiscal 2020. Although we expect retirement costs will continue to increase, we think the town will likely manage these costs due to historically balanced operations and conservative budgeting, coupled with a relatively credible OPEB funding plan and above-average funding ratio. WWW.STANDARDANDPOORS.COM/RATINGSDIRECT FEBRUARY 11, 2021 6 Summary: Reading, Massachusetts; General Obligation Strong institutional framework The institutional framework score for Massachusetts municipalities is strong. Related Research Through The ESG Lens 2.0: A Deeper Dive Into U.S. Public Finance Credit Factors, April 28, 2020 Certain terms used in this report, particularly certain adjectives used to express our view on rating relevant factors, have specific meanings ascribed to them in our criteria, and should therefore be read in conjunction with such criteria. Please see Ratings Criteria at www.standardandpoors.com for further information. Complete ratings information is available to subscribers of RatingsDirect at www.capitaliq.com. All ratings affected by this rating action can be found on S&P Global Ratings' public website at www.standardandpoors.com. Use the Ratings search box located in the left column. WWW.STANDARDANDPOORS.COM/RATINGSDIRECT FEBRUARY 11, 2021 7 Summary: Reading, Massachusetts; General Obligation WWW.STANDARDANDPOORS.COM/RATINGSDIRECT FEBRUARY 11, 2021 8 STANDARD & POOR’S, S&P and RATINGSDIRECT are registered trademarks of Standard & Poor’s Financial Services LLC. S&P may receive compensation for its ratings and certain analyses, normally from issuers or underwriters of securities or from obligors. S&P reserves the right to disseminate its opinions and analyses. S&P's public ratings and analyses are made available on its Web sites, www.standardandpoors.com (free of charge), and www.ratingsdirect.com (subscription), and may be distributed through other means, including via S&P publications and third-party redistributors. Additional information about our ratings fees is available at www.standardandpoors.com/usratingsfees. S&P keeps certain activities of its business units separate from each other in order to preserve the independence and objectivity of their respective activities. As a result, certain business units of S&P may have information that is not available to other S&P business units. S&P has established policies and procedures to maintain the confidentiality of certain non-public information received in connection with each analytical process. To the extent that regulatory authorities allow a rating agency to acknowledge in one jurisdiction a rating issued in another jurisdiction for certain regulatory purposes, S&P reserves the right to assign, withdraw or suspend such acknowledgment at any time and in its sole discretion. S&P Parties disclaim any duty whatsoever arising out of the assignment, withdrawal or suspension of an acknowledgment as well as any liability for any damage alleged to have been suffered on account thereof. Credit-related and other analyses, including ratings, and statements in the Content are statements of opinion as of the date they are expressed and not statements of fact. S&P’s opinions, analyses and rating acknowledgment decisions (described below) are not recommendations to purchase, hold, or sell any securities or to make any investment decisions, and do not address the suitability of any security. S&P assumes no obligation to update the Content following publication in any form or format. The Content should not be relied on and is not a substitute for the skill, judgment and experience of the user, its management, employees, advisors and/or clients when making investment and other business decisions. S&P does not act as a fiduciary or an investment advisor except where registered as such. While S&P has obtained information from sources it believes to be reliable, S&P does not perform an audit and undertakes no duty of due diligence or independent verification of any information it receives. Rating- related publications may be published for a variety of reasons that are not necessarily dependent on action by rating committees, including, but not limited to, the publication of a periodic update on a credit rating and related analyses. No content (including ratings, credit-related analyses and data, valuations, model, software or other application or output therefrom) or any part thereof (Content) may be modified, reverse engineered, reproduced or distributed in any form by any means, or stored in a database or retrieval system, without the prior written permission of Standard & Poor’s Financial Services LLC or its affiliates (collectively, S&P). The Content shall not be used for any unlawful or unauthorized purposes. S&P and any third-party providers, as well as their directors, officers, shareholders, employees or agents (collectively S&P Parties) do not guarantee the accuracy, completeness, timeliness or availability of the Content. S&P Parties are not responsible for any errors or omissions (negligent or otherwise), regardless of the cause, for the results obtained from the use of the Content, or for the security or maintenance of any data input by the user. The Content is provided on an “as is” basis. S&P PARTIES DISCLAIM ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, FREEDOM FROM BUGS, SOFTWARE ERRORS OR DEFECTS, THAT THE CONTENT’S FUNCTIONING WILL BE UNINTERRUPTED OR THAT THE CONTENT WILL OPERATE WITH ANY SOFTWARE OR HARDWARE CONFIGURATION. In no event shall S&P Parties be liable to any party for any direct, indirect, incidental, exemplary, compensatory, punitive, special or consequential damages, costs, expenses, legal fees, or losses (including, without limitation, lost income or lost profits and opportunity costs or losses caused by negligence) in connection with any use of the Content even if advised of the possibility of such damages. Copyright © 2021 by Standard & Poor’s Financial Services LLC. All rights reserved. February 25, 2021 For Immediate Release For Further information, contact; Endri Kume Treasurer/Assistant Finance Director 16 Lowell Street Reading, MA 01867 Tel: (781) 942-6634 Town of Reading, MA $10,890,000 General Obligation Bonds Net 1.262% Endri Kume, Town Treasurer/Assistant Finance Director, received competitive bids from bond underwriters on Thursday, February 25, 2021 for a $10,890,000 20-year bond issue. Fidelity Capital Markets was the winning bidder on the Bonds with an average interest rate of 1.262%. The Town received a total of 4 bids on the Bonds. Bond proceeds will be used to finance various municipal purposes. Prior to the sale, S&P Global Ratings, a municipal credit rating agency, affirmed the Town’s AAA underlying long-term debt rating, the highest attainable rating. The agency cited the Town’s very strong economy, strong management with good financial policies, very strong budgetary flexibility, very strong liquidity and very strong debt and contingent liability position as positive credit factors. The bids for the Bonds were accepted at the offices of the Town’s Financial Advisor, Hilltop Securities, Inc., at 54 Canal Street in Boston. -end- Town of Reading Select Board March 2, 2021 Resurfacing and Road Diet Pilot Project Main Street Agenda 1.Pilot Timeline 2.Pilot Evaluation A.Community Feedback and Adjustments B.Data Analysis 3.Next Steps 1.Pilot Timeline 2.Pilot Evaluation A.Community Feedback and Adjustments B.Data Analysis 3.Next Steps Pilot Schedule Adjustments •Pilot originally scheduled through October 2020 •In September 2020, MassDOT extended the pilot through March 2021 due the impact of COVID -19 on traffic patterns and volumes •In January 2021, we received requests from Town staff and members of the public to extend duration of the pilot Data Quality vs. Pavement Service •MassDOT conducted the pilot to test the new pavement markings in “typical conditions” •We want to have as much data as possible before making any final decisions •The project team analyzed extending the pilot beyond March 2021 to gather more data Data Quality vs. Pavement Service •Delaying the final Surface Course increases the risk of reflective cracking associated with the underlying concrete base which would reduce the service life of the completed pavement structure –Resurfacing plans consisted of two 1.5” layers: one Intermediate Course and one Surface Course –The 1.5” Intermediate Course was installed on South Main Street in Fall 2019 and on North Main Street in Spring 2020 –A final 1.5” Surface Course will be installed on both segments upon completion of the project Reflective Cracking Concrete Base Final Surface Course Intermediate Course } 1 ½ inches } 1 ½ inches Anticipated 2021 Timeline Mar.Apr.May June July Aug.Sept.Oct. North Main St. Collect Traffic Data Final Decision Design and Prep Adjust Structures, Pave, and Paint (with Abutter Coordination) South Main St.Collect Traffic Data Final Decision Design and Prep Adjust Structures, Pave, and Paint (with Abutter Coordination) Public Outreach Milestones Meet with Select Board Announce N. Main Decision Public Meeting Meet with Select Board* Announce S. Main Decision Project Completion Trench Restoration Continue Meeting and Coordinating with Town Staff Continue Gathering Public Input 1.Pilot Timeline 2.Pilot Evaluation A.Community Feedback and Adjustments B.Data Analysis 3.Next Steps Driving the Corridor Observations Community Feedback Data Analysis Vehicle Speeds Travel Times Traffic Volumes and Impacts Driver and Pedestrian Experience Pilot Evaluation: Community Feedback Pilot Outreach Before and During Pilot •Door-to-door flyering and outreach at businesses along project area •Business Breakfast and Info Session •MassDOT and Town of Reading project webpages –Project information –Road Diet guides –Project team contact info •PIMA online comment map •Informational video presentation –1,000+ views on YouTube –Rebroadcasted on RCTV •Two Reverse 9-1-1 Calls –Code Red calls sent to 20,000 residents •Project information included in Town Water Bill •September virtual public meeting •Two presentations to Select Board •Developed How To Use A Center Turn Lane Info Guide and shared it on social media and with Pleasant Street Center •Press releases at key milestones •Periodic social media posts Project Feedback Themes •Anticipated traffic impacts •Anticipated diversions •Impacts of COVID-19 on pilot •Access to businesses •Intersection configurations •Less speeding on Main Street •Increased safety for people walking and biking •Improper use of Center Turn Lane •Emergency response 201 104 12 317 Comments Submitted f PIMA Online Map Email Other 183 Requested and Received Written Responses 317 Comments Submitted South Main Street Comment Clusters Downtown Doyon’s and Dynamik Sports Summer Ave South St. Bagel World Car Wash 4 5 10 43 6 South Main Street Adjustments Doyon’s and Dynamik Sports Summer Ave South St. Bagel World Car Wash 4 5 10 43 6 Reviewed Intersection Crash Data and Guidelines Added Merge Arrows Revised NB Lane Markings Adjusted Signal Timing Revised SB Lane MarkingsRevised Lane Markings and Contacted Bagel World North Main Street Comment Clusters Rocky Rd. Birch Meadow Dr. Forest St. Charles St. Federal St. Franklin St. Downtown 16 4 4 27 4 6 North Reading North Main Street Adjustments Rocky Rd. Birch Meadow Dr. Forest St. Charles St. Federal St. Franklin St. 16 4 4 27 4 6 Revised NB Lane Markings Revised SB Lane Markings Added NB Left Turn Lane Extended NB Left Turn Lane Extended Center Turn Lane Extended Center Turn Lane Installed Traffic Camera North Reading Project Feedback By Month MAR APR MAY JUNE JULY AUG SEP OCT NOV DEC JAN 2020 2021 •Business Walk •Business Breakfast •Project Video •South Main Pilot Begins •PIMA goes live •North Main Pilot Begins •Reverse 9-1-1 Call •Social Media Posts •Select Board Meeting •Reverse 9-1-1 Call •Press Release •Public Meeting •TWLTL Info Sheet Posted Online •Social Media Posts •Water Bill Notice Email Town of ReadingPIMA Other Design Adjustments 1.Pilot Timeline 2.Pilot Evaluation A.Community Feedback and Adjustments B.Data Analysis 3.Next Steps Driving the Corridor Observations Community Feedback Data Analysis Vehicle Speeds Travel Times Traffic Volumes and Impacts Driver and Pedestrian Experience Pilot Evaluation: Data Analysis Average Daily Volumes on Route 28/ Main Street Traffic Volumes At Additional Locations Percentage Change of Monthly Traffic Volumes Percent Change of Average Monthly Volumes (2019 to 2020) at Various Locations in Reading ID Location Name Jan Feb March April May June July Aug Sept Oct Nov Dec % Chg.% Chg.% Chg.% Chg.% Chg.% Chg.% Chg.% Chg.% Chg.% Chg.% Chg.% Chg. A Franklin St. (Between Collins and Sailor Tom's)0%10%-21%-56%-37%-29%-24%-22%-15%-17%-21%-22% B Franklin St. (Between Pearl and Gavin)-1%10%-19%-52%-36%-25%-21%-19%-15%-16%-19%-22% C Franklin St. (Between Blueberry Ln and Sunset Rock Ln)-2%10%-20%-55%-38%-30%-24%-22%-16%-17%-19%-20% D Pearl St. (Between Briarwood and Willard)-7%31%-6%-50%-33%-25%-23%-28%-14%-18%-21%-25% E Haverhill St. (Between Rustic and Charles)-2%8%-20%-52%-37%-25%-21%-20%-15%-16%-19%-22% F Grove St. (Between Forest and Spruce)-3%11%-20%-55%-38%-30%-21%-21%-16%-16%-19%-20% G Charles St. (Between Cemetery and Timberneck)-5%6%-20%-56%-39%-28%-22%-23%-15%-16%-17%-19% H Route 129 (Between Intervale and Hartshorn)0%6%-21%-53%-37%-25%-19%-19%-14%-15%-19%-21% I Charles St. (At Memorial Park)-9%6%-22%-52%-36%-26%-20%-20%-13%-16%-18%-21% J Route 129 (Between Pierce and Manning)-1%7%-22%-53%-37%-24%-19%-18%-14%-15%-18%-20% K Haverhill St. (At River Road)-2%8%-20%-52%-37%-26%-22%-20%-15%-16%-20%-22% Route 28 (averaged through entire corridor)-4%5%-23%-53%-36%-25%-19%-18%-14%-15%-19%-20% Source: StreetLight Insight “StreetLight Volume (Vehicle Trips)” zone activity analysis ; data shown through December 31, 2020 Average Speeds and Travel Times 9.5 min 8.6 min 6 7 8 9 10 11 12 Jan Feb March April May June July Aug Sept Oct Nov DecTravel Time (Mins)Reading, Route 28 -Average Travel Time by Month 2019 2020 28 mph 29 mph 15 20 25 30 35 Jan Feb March April May June July Aug Sept Oct Nov DecAverage Speed (MPH)Reading, Route 28 -Average Speed by Month 2019 2020 Average Vehicle Speeds: Morning (8 -9 AM) and Afternoon (4 -5 PM) Peaks 27 mph 29 mph 15 20 25 30 35 Jan Feb March April May June July Aug Sept Oct Nov DecAverage Speed (MPH)Reading, Route 28 -Average Peak Period Speed by Month 2019 2020 AM PM 26 mph 26 mph 15 20 25 30 35 Jan Feb March April May June July Aug Sept Oct Nov DecAverage Speed (MPH) Average Travel Times: Morning (8 -9 AM) and Afternoon (4 -5 PM) Peaks 9.3 min 8.8 min 6 7 8 9 10 11 12 Jan Feb March April May June July Aug Sept Oct Nov DecTravel Time (Mins)Reading, Route 28 -Average Peak Period Travel Time by Month 2019 2020 AM PM 9.9 min 9.8 min 6 7 8 9 10 11 12 Jan Feb March April May June July Aug Sept Oct Nov DecTravel Time (Mins) Morning (8 -9AM) Congestion Percentages “Congestion %” is defined as measured speed as a percentage of the free flow speed. RITIS does not have complete coverage of all roadways within Reading. 2019 data includes segments (grey) with insufficient data coverage to display the congestion metric. January 2021 -Every Tuesday, Wednesday, and ThursdayJanuary 2020 -Every Tuesday, Wednesday, and Thursday Afternoon (4 -5PM) Congestion Percentages “Congestion %” is defined as measured speed as a percentage of the free flow speed. RITIS does not have complete coverage of all roadways within Reading. 2019 data includes segments (grey) with insufficient data coverage to display the congestion metric. January 2020 -Every Tuesday, Wednesday, and Thursday January 2021 -Every Tuesday, Wednesday, and Thursday Key Findings •Traffic volumes have stabilized at around 80% of what they were before the COVID -19 pandemic. •Average vehicle speeds on Main Street have stayed relatively consistent while other roadways in the region have seen an increase in speeding •Travel times have stayed relatively consistent •Additional data collected until June 2021 will help determine the final decisions 1.Pilot Timeline 2.Pilot Evaluation A.Community Feedback and Adjustments B.Data Analysis 3.Next Steps Anticipated 2021 Timeline Mar.Apr.May June July Aug.Sept.Oct. North Main St. Collect Traffic Data Final Decision Design and Prep Adjust Structures, Pave, and Paint (with Abutter Coordination) South Main St.Collect Traffic Data Final Decision Design and Prep Adjust Structures, Pave, and Paint (with Abutter Coordination) Public Outreach Milestones Meet with Select Board Announce N. Main Decision Public Meeting Meet with Select Board* Announce S. Main Decision Project Completion Trench Restoration Continue Meeting and Coordinating with Town Staff Continue Gathering Public Input Gathering Additional Feedback Before Final Decisions Now that the pilot has been in place for almost a year, we want to know: •What areas do you find easier or more difficult to navigate? •Did the lane marking adjustments improve your experience? •What additional lane marking adjustments would you suggest? •What would you like to learn more about at our public meeting in June? Monitoring After Project Completion •MassDOT will monitor available safety and crash data after pilot is complete •We will continue to review MassDOT District 4 public inquiries •There will be ongoing communication with Town of Reading staff Q&A LEARN MORE Visit: mass.gov/route-28-in-reading-resurfacing-and-road-diet-pilot Search on the Web: ‘Route 28 Road Diet Pilot’ SHARE FEEDBACK Email: Route28Pilot@dot.state.ma.us Visit: bit.ly/37rad24 Three-lane roadways provide increased clarity in the event of an emergency by allowing for law enforcement and emergency services vehicles to bypass stopped traffic by using the TWLTL, if necessary. Drivers in through lanes can remain in place, leaving the TWLTL solely for emergency response vehicles. When a four-lane corridor contains a large number of driveways and side streets, the majority of through traffic stays in the outside lanes to avoid being delayed by slow and stopped left-turning vehicles in the inside lanes. These four-lane corridors essentially behave like there is only one through lane in each direction, so when they are converted to a three-lane section they are less likely to experience a significant change in capacity. For questions and comments about the TWLTL on Main Street in Reading, email the Route 28 Resurfacing and Road Diet Pilot Project Team: Route28Pilot@dot.state.ma.us DESCRIPTION OF IMPACTS A two-way left-turn lane (TWLTL) is a street configuration that provides a center lane for left turning vehicles traveling in either direction. A TWLTL removes left turning vehicles from the through lanes and allows vehicles to wait in the center lane until a safe gap in oncoming traffic is available before turning left. LEFT TURN ONLY CLARITY DURING EMERGENCIESMAINTAINING ROADWAY CAPACITY Two-Way Left Turn Lanes informational guide Two-Way Left Turn Lanes…Which can Result in... Remove stopped or slow left-turning vehicles from the through lanes • Fewer rear-end collisions • Reduced delay to through vehicles Provide drivers a space to wait for an adequate gap in traffic before turning left • Fewer side-swipe collisions Create spatial separation between opposing lanes of traffic • Fewer head-on collisions 1. Plan for the turn. 2. Signal your turn at least 100 feet before making the turn. On a highway, signal at least 500 feet before a turn. 3. Reduce your speed. 4. Check your mirrors for traffic behind you and check the blind spot on your turning side. 5. Watch out for oncoming vehicles that may be using the center turn lane. 6. When it is safe and the center turn lane is clear, enter the center turn lane. 7. Make sure no part of your vehicle is blocking through traffic. 8. Wait in the center left turn lane until it is safe to turn left. Two-way left turn lanes should only be used when: 1. Making a left turn or a U-turn from the roadway when permitted 2. Making a left turn from a side street or driveway Drivers may not travel in a center turning lane. Never use the center left turn lane as an ordinary traffic lane or for passing other vehicles. Before and after data from road diets around the country often show the three lane roads have similar capacities and lower crash rate than the original four lane road. To learn more about road diets and two-way left-turn lanes, please visit: • https://safety.fhwa.dot.gov/road_diets/ • https://www.mass.gov/info-details/what-are-road-diets HOW TO USE THEM WHEN TO USE THEM LEARN MORE Two-Way Left Turn Lanes informational guide For questions and comments about the TWLTL on Main Street in Reading, email the Route 28 Resurfacing and Road Diet Pilot Project Team: Route28Pilot@dot.state.ma.us February 17, 2021 DELIVERED BY EMAIL Dear Members of the Select Board, In view of the ongoing COVID-19 pandemic and the federal, state and local advisories to practice social distancing and avoid the congregation of crowds, I request approval to conduct the Town of Reading's Annual Town Meeting, scheduled to commence on April 26, 2021, through remote participation via Zoom Webinar videoconferencing platform in accordance with Chapter 92 of the Acts of 2020 (the "Act"). I have determined, with the assistance of the town’s IT department and the positive experience we had with the annual town meeting, that the Zoom Webinar videoconferencing platform is suitable to use to hold the town meetings. In addition, I have consulted with Laura Gemme, Reading’s local coordinator for the Americans with Disabilities Act ("ADA"), and I have confirmed that the meeting will comply with the ADA, if held over Zoom. I hereby certify that: (A) I have tested the Zoom videoconferencing platform; and (B) the Zoom videoconferencing platform satisfactorily enables the Town Meeting to be conducted in substantially the same manner as if the meetings occurred in person at a physical location and in accordance with the operational and functional requirements set forth in the Act. I further certify that the Zoom system provides for: (i) the Moderator, Town Meeting members, Town officials and any other interested members of the public to identify and hear the Moderator and each Town Meeting member who attends and participates in the remotely-held town meetings, as well as any other individuals who participate in the remotely-held town meeting; (ii) the ability to determine if a quorum is present; (iii) a Town Meeting member, Town official or other individual to request recognition by the Moderator without prior authorization; provided, however, that, to the extent technologically feasible, the request is visible or audible to the public in real time and upon review of the recording of the Town Meeting, preserved according to the Act; (iv) the Moderator to determine when a town meeting member wishes to be recognized to speak, make a motion, raise a point of order or object to a request for unanimous consent; (v) the Moderator to recognize a Town Meeting member, Town official or other individual to speak and to enable that person to speak; (vi) the ability to conduct a roll call vote; (vii) any interested members of the public to access the meetings remotely for purposes of witnessing the deliberations and actions taken at the Town Meeting; and (viii) the Town Meeting to be recorded. Sincerely, ALAN E. FOULDS Alan E. Foulds Town Moderator COMMONWEALTH OF MASSACHUSETTS Middlesex, ss. Officer's Return, Town of Reading: By virtue of this Warrant, I ______________________________, on ____________, 2021 notified and warned the inhabitants of the Town of Reading, qualified to vote on Town affairs, to meet at the place and at the time specified by posting attested copies of this Town Meeting Warrant, along with the written request of Town Moderator Alan Foulds dated February 17, 2021 asking that this Town Meeting be held by remote participation pursuant to St. 2020, c. 92, §8, in the following public places within the Town of Reading: Precinct 1 J. Warren Killam School, 333 Charles Street Precinct 2 Reading Police Station, 15 Union Street Precinct 3 Reading Municipal Light Department, 230 Ash Street Precinct 4 Joshua Eaton School, 365 Summer Avenue Precinct 5 Reading Public Library, 64 Middlesex Avenue Precinct 6 Barrows School, 16 Edgemont Avenue Precinct 7 Birch Meadow School, 27 Arthur B Lord Drive Precinct 8 Wood End School, 85 Sunset Rock Lane Town Hall, 16 Lowell Street The date of posting being not less than fourteen (14) days prior to April 6, 2021, the date set for Town Meeting in this Warrant. I also caused a posting of this Warrant, and the Town Moderator’s request for a remote Town Meeting, to be published on the Town of Reading website on _______________, 2021. _____________________________________________ Constable A true copy Attest: _____________________________________________ Laura Gemme, Town Clerk TOWN WARRANT COMMONWEALTH OF MASSACHUSETTS Middlesex, ss. To any of the Constables of the Town of Reading, Greetings: In the name of the Commonwealth of Massachusetts, you are hereby required to notify and warn the inhabitants of the Town of Reading, qualified to vote in the Local Elections and Town affairs, to meet in the following place designated for the eight precincts in said Town, namely: Precincts 1, 2, 3, 4, 5, 6, 7 and 8 Reading Memorial High School, Hawkes Field House, Oakland Road TUESDAY, the SIXTH DAY OF APRIL, A.D., 2021 from 7:00 a.m. to 8:00 p.m. to act on the following Articles, viz: ARTICLE 1 To elect by ballot the following Town Officers: A Moderator for one year; One member of the Select Board for three years; Two members of the Board of Library Trustees for three years; Two members of the Municipal Light Board for three years; Two members of the School Committee for three years; Sixty-Six Town Meeting Members shall be elected to represent each of the following precincts: Precinct 1 Eight members for three years; Precinct 2 Eight members for three years; Precinct 3 Eight members for three years; one member for two years; and one member for one year; Precinct 4 Eight members for three years; Precinct 5 Eight members for three years; Precinct 6 Eight members for three years; Precinct 7 Eight members for three years; and Precinct 8 Eight members for three years and to meet in accordance with Chapter 92 of the Acts of 2020 and through the Zoom platform on MONDAY, the TWENTY-SIXTH DAY of APRIL A.D., 2021 at seven-thirty o’clock in the evening, at which time and place the following Articles are to be acted upon and determined exclusively by Town Meeting Members in accordance with the provisions of the Reading Home Rule Charter. Members of the public may access and witness the deliberations and actions taken at the Annual Town Meeting in the following manner: RCTV Facebook or on local public access television. Town Meeting members and Town officials shall receive a link to join the Zoom video conferencing platform to participate in the Annual Town Meeting. Non-Town Meeting Members who are registered voters residing in the Town who wish to participate in the Annual Town Meeting must submit a request to participate to the Town Clerk not less than 48 hours in advance of the Annual Town Meeting, and when submitting this request, non-Town Meeting Members who wish to make a comment, ask a question, or otherwise address Town Meeting, should contact Town Clerk Laura Gemme (lgemme@ci.reading.ma.us or 781-942-6647) with the following information: (a) First and Last Name, (b) Street Address, (c) Phone Number, (d) Email Address, and (e) Article(s) he or she would like to speak to, and once verified, shall receive follow up information with specific participation instructions for the meeting. If, on April 26, 2021, the Town Meeting elects not to hold the Annual Town Meeting remotely, then the Town Meeting shall adjourn to Reading Memorial High School Performing Arts Center, 62 Oakland Road, Reading on Thursday April 29, 2021 at seven-thirty o’clock in the evening. ARTICLE 2 To hear and act on the reports of the Select Board, School Committee, Library Trustees, Municipal Light Board, Finance Committee, Bylaw Committee, Town Manager, Town Accountant and any other Town Official, Board or Committee. Select Board ARTICLE 3 To choose all other necessary Town Officers and Boards or Committees and determine what instructions shall be given to Town Officers and Boards or Committees, and to see what sum the Town will vote to appropriate by borrowing or transfer from available funds, or otherwise, for the purpose of funding Town Officers and Boards or Committees to carry out the instructions given to them, or take any other action with respect thereto. Select Board ARTICLE 4 To see if the Town will vote to amend the FY 2021-31 Capital Improvements Program as provided for in Section 7-7 of the Reading Home Rule Charter and as previously amended, or take any other action with respect thereto. Select Board ARTICLE 5 To see if the Town will vote to amend the Town’s Operating Budget for the Fiscal Year commencing July 1, 2020, as adopted under Article 17 of the Annual Town Meeting of June 15, 2020 and amended under Article 4 of the Subsequent Town Meeting of November 9, 2020; and to see if the Town will vote to raise and appropriate, borrow or transfer from available funds, or otherwise provide a sum or sums of money to be added to the amounts appropriated under said Article, as amended, for the operation of the Town and its government, or take any other action with respect thereto. Finance Committee ARTICLE 6 To see if the Town will vote to raise and appropriate, transfer from available funds, borrow or otherwise provide a sum or sums of money to pay bills remaining unpaid from prior fiscal years for goods and services actually rendered to the Town, or take any other action with respect thereto. Select Board ARTICLE 7 To see if the Town will vote to raise and appropriate, transfer from available funds, borrow or otherwise provide a sum or sums of money for the purpose of funding the irrevocable trust for “Other Post-Employment Benefits Liabilities” or take any other action with respect thereto. Select Board ARTICLE 8 To see if the Town will vote to amend the Zoning Bylaw as follows, with additions being shown in bold italics and deletions being struck through, except for Part 5 below: 1. By modifying, in Section 2.0, Definitions, the following definition: Open StorageOutdoor Commerce, Dining, Programming, or Storage: An accessory use involving tThe relocation or extension of indoor commerce, dining, programming, or storage outdoorto outdoor areas, as an accessory use, on the same lot as a lawful principal use storage or display of retail goods for sale. 2. By adding a new trigger for Minor Site Plan Review, in Section 4.6.2.3: 4.6.2 Applicability 4.6.2.3 Except as otherwise specified in Section 4.6.2.1 or Section 4.6.2.2, Minor Site Plan Review is required if the proposed construction, modification to use, or site alteration involves any of the following: a Exterior alteration of 500 square feet or more of horizontal or vertical area that is limited to doors, paint, awnings, railings, step replacement, handicapped ramps or building code compliance measures, for a site within the Business B Zoning District; b Redevelopment or alteration of a site, or the interior of a building, in such a manner that the proposed site or building function is anticipated to generate unreasonable visual or auditory impacts to abutters;. c An existing site that becomes a nuisance to public health, safety or welfare (i.e. due to routine traffic spillover, excessive noise, site illumination beyond the hours of operation, etc.) as evidenced by substantiated complaints to the Police Department and/or Public Services Office; or. d Outdoor Commerce, Dining, Programming, or Storage. 3. By modifying, in Section 4.6.3.2, Minor Site Plan Review Procedures: 4.6.3 Minor Site Plan Review 4.6.3.1 The CPDC, through regulation, may authorize the Community Development Director to grant Administrative Approval for a Minor Site Plan Review, with or without conditions, provided the proposed construction, expansion or alteration is not anticipated to result in any adverse impact on surrounding areas. 4.6.3.2 Minor Site Plan Review Procedures The Applicant shall submit to the CPDC through the Community Development Director, one electronic copy and six two (26) printed sets of plans documents showing including the following: 1 A complete application, including authorization from the property owner; 2 1 A written narrative explaining the proposed changes; 3 2 Photographs of the existing site or area to be altered; and 4 3 A rendering, site plan, plot plan or sketch. For Minor Site Plan Review by the CPDC, the Applicant shall also submit one (1) set of postage stamped addressed envelopes in order for the Community Development Director to mail notification of the Minor Site Plan Review to abutters. For applications under Outdoor Commerce, Dining, Programming, or Storage, notification will also be provided to businesses and tenants located on the site and within a 300’ radius of the site, at a minimum. The Minor Site Plan Review shall not be considered complete, and a building permit shall not be issued, until a written approval is issued by the CPDC. Minor Modifications to an approved Minor Site Plan Review shall be subject to the provisions of Section 4.6.9.2. 4. By combining Sections 4.6.3.3 and 4.6.3.4 into a new Section 4.6.3.3, Waiver of Parking, Loading and Related Design Requirements: 4.6.3.3 Waiver of Loading Zone Space Requirements Upon the applicant’s request and submission of supporting documentation, the Community Planning and Development Commission may waive the requirements of Section 9.1 of the Zoning Bylaw as to the number of loading zone spaces upon a finding that there will be no adverse impact on surrounding areas. 4.6.3.3 4.6.3.4 Waiver of Parking, Loading Space and Related Design Requirements in the Business Districts Upon the Applicant’s request and submission of supporting documentation, the Community Planning and Development Commission may waive or reduce the requirements of Section 9.1 for a site located in the Business Districts upon a finding that there will be no adverse impact on surrounding areas. 5. By adding a new Section 4.6.3.4, Criteria for Approval – Outdoor Commerce, Dining, Programming, or Storage, as follows and as shown in bold and regular text as it will appear in the Zoning Bylaw, if adopted: 4.6.3.4 Criteria for Approval – Outdoor Commerce, Dining, Programming, or Storage When reviewing an application for Outdoor Commerce, Dining, Programming, or Storage, the CPDC will consider and may impose limitations and/or conditions related to the following criteria: a Duration of Use- hours of operation, seasonality, and recurrence of the use; b Site Circulation & Access- adequacy of pedestrian, vehicular, and emergency access to and movement through the site; c Parking- availability of and impact to parking; d Intensification of Use – whether the proposal will expand or intensify the principal use; e Structures & Furnishings- dimensions, methods for securing/storing, and specifications for all proposed structures and furnishings to be used; f Materials & Products- materials and products displayed or stored shall be for sale on-site, and not for distribution, and shall not generate dust, noise or other objectionable effects, or create a hazard to the community on account of fire, explosion or any other cause; g Lighting, Heating & Sound- details regarding any proposed outdoor lighting, heating, or sound-generating devices, as well as specifications regarding any utility extensions for such; h Setbacks- proximity of structures and activities to property lines; i Visual Impact- measures to address the effect of the use (such as plantings, fencing, sculptures, trellises, artwork, etc.) on neighbors; j Signage-justification for any desired temporary signage; k Competing Uses & Neighborhood Coordination- consideration for how the area is used throughout the day, and at night, and accommodations for the needs of neighboring uses. Compliance with Decision of Approval Should an applicant fail to comply with the limitations or conditions contained in a minor site plan decision of approval issued for Outdoor Commerce, Dining, Programming, or Storage, in addition to any and all other methods of zoning enforcement available to the Town, the applicant may be required to propose solutions to staff and may be required to return to the CPDC to amend the decision of approval. Ongoing failure to comply with conditions contained in a decision of approval issued hereunder shall result in rescission of the decision of approval. 6. By modifying Section 5.2, General Requirements, to include an acronym for Minor Site Plan Review (MSPR): 5.2 General Requirements 5.2.1 Use regulations for all uses shall be as specified in Section 5.3.1, the “Table of Uses for Business and Industrial Districts,” and Section 5.3.2, the “Table of Uses for Residence Districts.” In these tables, "Yes" denotes a use permitted by right in a particular district; the letters "SPA" denote a use permitted in a particular district only by Special Permit from the Zoning Board of Appeals; the letters "SPS" denote a use permitted in a particular district only by Special Permit from the Board of Selectmen; the letters "SPP" denote a use permitted in a particular district only by Special Permit from the Community Planning and Development Commission (CPDC); the letters “MSPR” denote a use permitted in a particular district only by Minor Site Plan Review from the CPDC, unless approved as part of a full Site Plan Review application; "No" denotes a use prohibited in a particular district. 7. By modifying the row for Open Storage in Section 5.3.1 Table of Uses for Business and Industrial Districts – Accessory Uses, and by adding Note 6, as follows: 5.3 Table of Uses 5.3.1 Table of Uses for Business and Industrial Districts ACCESSORY USES BU S A BUS B BU S C IND PUD-B Overlay PUD-I Overlay Open StorageOutdoor Commerce, Dining, Programming, or Storage6 SPPMSPR NoMSPR NoMSPR SPPMSPR SPPMSPR SPPMSPR Notes: 1 Townhouse style Multi-Family Dwelling only in Business C Planning Subdistrict A. 2 Permitted only in Business C Planning Subdistricts B and D. 3 Requires on-site garage for all vehicles and enclosed storage for all materials. 4 The total number of children under age sixteen (16) in a family child care home shall not exceed ten (10), including participating children living in the residence. 5 Except by a contractor performing construction work on the premises. 6 Also allowed by MSPR in the Downtown Smart Growth District (40R Overlay). Not applicable to Home Occupation or Special Home Occupation uses in any district. 8. By inserting a new row to Section 5.3.2 Table of Uses for Residence Districts – Accessory Uses, immediately following the existing row for “Animal Kennel,” and by adding Note 4, as follows: 5.3.2 Table of Uses for Residence Districts ACCESSORY USES RES S-15 S-20 S-40 RES A-40 RES A-80 PRD-G PRD-M PUD-R Outdoor Commerce, Dining, Programming, or Storage4 MSPR MSPR MSPR No No Notes: 1 In a Residence District, a single-family dwelling existing prior to April 1942, which at that time had at least eight (8) finished and habitable principal rooms, upon receipt of a Special Permit from the Zoning Board of Appeals, may be converted into a two- family dwelling, provided that the conversion does not increase the gross floor area of the structure by the lesser of 1000 square feet or one-third of the gross floor area of the dwelling existing on the date of application for conversion or on January 1, 2020, whichever is earlier, and that the external appearance as a single-family dwelling is retained. However, if no increase in gross floor area is proposed to the existing single- family structure as part of conversion, then the Special Permit shall not be required. After a structure is converted to a two-family under this Footnote, no future additions to the structure will be allowed. At such time that the original April 1942 single-family dwelling is voluntarily demolished, rights to a two-family under this Footnote – whether granted by-right or by Special Permit – shall be discontinued. 2 The total number of children under age sixteen (16) in a family child care home shall not exceed ten (10), including participating children living in the residence. 3 Except by a contractor performing construction work on the premises. 4 Applicable to legally existing businesses in residence districts, where the principal use of the site is commercial. Not applicable to Home Occupation or Special Home Occupation uses in any district. 9. By deleting Section 5.6.1, Open Storage, in its entirety, from Section 5.6, Uses by Special Permit, and by renumbering remaining sections accordingly: 5.6 Uses by Special Permit 5.6.1 Open Storage Open Storage may be authorized as specified in the Table of Uses for Business and Industrial Districts set forth in Section 5.3.1 of the Zoning Bylaw by Special Permit from the CPDC, based upon the criteria set forth in Section 5.6.1.1. 5.6.1.1 Criteria for Approval a Products shall be stored only for the purpose of merchandise display or stock for sale on site, and not for distribution. b Open storage area shall occupy no more than ten percent (10%) of a lot’s total area. c Products stored shall not impede pedestrian movement or vehicular circulation. d Products stored shall neither encroach upon required parking spaces nor impede access thereto e Products stored may be required to be screened from any abutting residential properties. f No products may be stored in any public right of way nor impede access thereto. g In issuing a Special Permit, the CPDC may restrict the hours during which products may be displayed. h No products shall be stored so as to create dust, noise or other objectionable effects, or to create a hazard to the community on account of fire, explosion or any other cause. 5.6.1.2 Process Applications for a Special Permit for open storage shall be made in accordance with the procedures for Site Plan Review set forth in Section 4.6.4 of the Zoning Bylaw. or take any other action with respect thereto. Community Planning and Development Commission ARTICLE 9 To see if the Town will vote to (1) establish the limit on the total amount that may be expended from each revolving fund established by Article 9 of the Town of Reading General Bylaw pursuant to Section 53E½ of Chapter 44 of the Massachusetts General Laws for the fiscal year beginning July 1, 2021; and (2) amend Section 6.6.2 of the General Bylaw, establishing the Inspection Revolving Fund, as shown below, with the additions being shown in bold and deletions being struck through: 6.5.2 Inspection Revolving Fund Funds held in the Inspection Revolving Fund shall be used for legal costs, oversight and inspection, plan review, property appraisals and appeals, public services general management, pedestrian safety improvements, records archiving, and other costs related to building, plumbing, wiring, gas and other permits required for large construction projects and shall be expended by the Town Manager. Receipts credited to this fund shall include building, plumbing, wiring, gas and other permit fees for the Schoolhouse Commons, The Metropolitan at Reading Station, Postmark Square, 20-24 Gould Street, 467 Main Street, Oaktree, Addison-Wesley/Pearson, and Johnson Woods, Eaton Lakeview (23-25 Lakeview Avenue and 128 Eaton Street), 258 Main Street, 267 Main Street, 531 Main Street, 25 Haven Street, and 18-20 Woburn Street developments. or take any other action with respect thereto. Select Board ARTICLE 10 To see if the Town will vote to approve an Affordable Housing Trust Fund Allocation Plan pursuant to Chapter 140 of the Acts of 2001 entitled “AN ACT AUTHORIZING THE TOWN OF READING TO ESTABLISH AN AFFORDABLE HOUSING TRUST FUND,” or take any other action with respect thereto. Select Board ARTICLE 11 To see if the Town will vote to accept Clause Twenty-second G of M.G.L. c.59, §5 for real estate that is the domicile of a person but is owned by a trustee, conservator or other fiduciary for the person's benefit if the real estate would be eligible for exemption under clause Twenty-second, Twenty-second A, Twenty-second B, Twenty-second C, Twenty-second D, Twenty-second E or Twenty-second F of M.G.L. c.59, §5 if the person were the owner of the real estate, or take any other action with respect thereto. Select Board at the recommendation of the Board of Assessors ARTICLE 12 To see if the Town will vote to accept Clause Twenty-second H of M.G.L. c. 59, § 5 to exempt from taxation certain real property of and occupied by parents or guardians of military personnel who were killed in action or injured in action that subsequently caused their death, or military personnel missing in action and presumed dead, subject to residency requirements, or take any other action with respect thereto. Select Board at the recommendation of the Board of Assessors ARTICLE 13 To see if the Town will vote to raise and appropriate, borrow, transfer from available funds or otherwise provide a sum or sums of money to pay the costs of making improvements including full replacement of the Reading Memorial High School Stadium Track and Turf Field, including the payment of any and all other costs incidental and related thereto, or take any other action with respect thereto. Select Board ARTICLE 14 To see if the Town will vote to raise and appropriate, borrow, transfer from available funds or otherwise provide a sum or sums of money to pay the costs of making improvements including repairs to and replacement of the Parker Middle School Roof, including the payment of any and all other costs incidental and related thereto, or take any other action with respect thereto. Select Board ARTICLE 15 To see if the Town will vote to raise and appropriate, transfer from available funds, borrow or otherwise provide a sum or sums of money for highway projects in accordance with Chapter 90 of the Massachusetts General Laws, or take any other action with respect thereto. Select Board ARTICLE 16 To see if the Town will vote to raise and appropriate, transfer from available funds, borrow or otherwise provide a sum or sums of money for the operation of the Town and its government for Fiscal Year 2022 - beginning July 1, 2021, or take any other action with respect thereto. Finance Committee ARTICLE 17 To see if the Town will vote to transfer the care, custody, management and control of the properties off Lowell Street and Willow Street, shown on Assessors’ Map 26 as Lots 50 & 32 (previously referred to as Plat 99, lots 2 and 21) which properties together contains 5.82 acres, more or less, to the Reading Conservation Commission, for the sole purpose of open space management; provided, however, that the Reading Department of Public Works shall have the right to replace, repair, maintain, and make necessary improvements to the existing sewer drains on the properties as shown on the following plans on file with the Town Clerk: 1. A plan of land entitled “Plan Showing Taking for Proposed Sanitary Sewer and Force Main from Mineral Street to New Senior High School, Town of Reading, Board of Public Works,” prepared by Whitman & Howard, Engineers, Boston, Mass., dated June 1953, Sheet 2 of 5 Sheets; 2. A plan of land entitled “Record Sewer Plan Interceptor Pumping Station to High School, Board of Public Works,” prepared by Philip Welch, Superintendent, dated May 1959; 3. A plan of land entitled “Town of Reading Massachusetts, Board of Public Works, Easement Through Private Property For Drainage And Sewerage Purposes, Hunt Street,” prepared by the Engineering Division, Phillip Welsh, Superintendent, dated September 1963, and recorded with the Middlesex South Registry of Deeds on March 23, 1964, as Plan 266 of 1964; and 4. A plan of land entitled “Town of Reading Massachusetts, Board of Public Works, Record Sewer Plan Hunt St. and Interceptor No.1,” prepared by the Engineering Division, Phillip Welsh, Superintendent, dated April 1965, such plans on file with the Town Clerk; and provided further that such transfer of care, custody, management and control shall be subject to such right of the Department of Public Works; or take any other action with respect thereto. Select Board ARTICLE 18 – To see if the Town will vote to amend Section 7.9, Stormwater Management and Erosion Control, of the General Bylaw as follows: 1. By revising Section 7.9.2, Definitions, as shown below, with additions being shown in bold and deletions being struck through: 7.9.2 Definitions Unless the context clearly indicates otherwise, the following words and terms, as used in Section 7.9, shall have the following meanings: 7.9.2.1 Applicant Any person requesting a Stormwater Permit. 7.9.2.2 Best Management Practice (BMP) An activity, procedure, restraint, or structural improvement that helps to reduce the quantity or improve the quality of stormwater runoff. 7.9.2.3 Common Plan of Development or Sale Any plan reflected in an announcement, documentation or physical demarcation indicating Tthat one (1) or more multiple distinct construction activities are or may be undertaken on a Site or on contiguous Sites, either simultaneously or at different times or on different schedules, that are shown under one (1) plan. For example, if a developer buys a 20-acre lot and builds roads, installs pipes, and runs electricity with the intention of constructing homes or other structures sometimes in the future, this would be considered a larger common plan of development or sale. If the land is parceled off or sold, and construction occurs on plots that are less than one acre by separate, independent builders, this activity still would be subject to stormwater permitting requirements if the smaller plots were included on the original site plan. 7.9.2.4 Construction and Waste Materials Excess or discarded building or site materials at a construction site, including concrete truck washout, chemicals, litter and sanitary waste, that may adversely impact water quality. 7.9.2.5 Critical Area Any of the following: An Outstanding Resource Water or Special Resource Water as designated in 314 CMR 4.00, a recharge area for a public water supply as defined in 310 CMR 22.02 (a Zone I, Zone II, or Interim Wellhead Protection Area for a groundwater source or a Zone A for a surface water source), a bathing beach as defined in 105 CMR 445.000, or a cold-water fishery as defined in 310 CMR 10.04. 7.9.2.56 Erosion The wearing away of the land surface by natural or artificial forces such as wind, water, ice, gravity, or vehicle traffic and the subsequent detachment and transportation of soil particles. 7.9.2.67 Erosion and Sedimentation Control Plan A document prepared by a qualified professional engineer or a Certified Professional in Erosion and Sedimentation Control, that specifies best management practices designed to control surface runoff, erosion and sedimentation during land-disturbing activities prior to or during construction. 7.9.2.78 Grading Changing the level or shape of the ground surface. 7.9.2.89 Impervious Surface Any artificial material or structure on or above the ground that prevents water from infiltrating the underlying soil. Impervious Surfaces may include roads, paved parking lots, sidewalks, and rooftops. 7.9.2.10 Impaired Water A water is impaired if it does not meet one or more of its designated use(s). For purposes of this Bylaw, Impaired Waters are those classified as categories 4 and 5 of the five-part categorization approach used for classifying the water quality standards attainment status for water segments under the U.S. EPA Total Maximum Daily Load (TMDL) program. This classification is done by the Massachusetts Department of Environmental Protection in its “Integrated List of Waters,” pursuant to Clean Water Act Section 303(d) (33 USC Section 1313(d)) and 40 CFR Section 130.7(b)(4). 7.9.2.911 Land-Disturbing Activity (or Disturbance of Land) Any activity that causes a change in the position or location of soil, sand, rock, gravel, or similar earth material. 7.9.2.12 Low Impact Development (LID) Systems and practices that use or mimic natural processes resulting in the infiltration, evapotranspiration or use of stormwater. LID includes, but is not limited to, the following: Site Design: Environmentally sensitive site design approaches such as minimizing impervious surfaces, fitting the development to the terrain, preserving and capitalizing on natural drainage systems, and reproducing pre-development hydrologic conditions; and Systems: Stormwater management systems modeled after natural hydrologic features to manage rainfall at the source using decentralized micro-scale controls, such as bioretention facilities, rain gardens, vegetated rooftops, rain barrels, and permeable pavements. 7.9.2.1013 Massachusetts Stormwater Management Standards The Stormwater Management Standards issued by the Massachusetts Department of Environmental Protection, aimed at encouraging recharge and preventing stormwater discharges from causing or contributing to the pollution of the surface waters or groundwater of the Commonwealth. 7.9.2.1114 Municipal Storm Drain System (or Storm Drain System) The system of conveyances owned by the Town (including roads, catch basins, curbs, gutters, ditches, constructed channels, pipes, and outfalls) by which stormwater is collected or conveyed. 7.9.2.1215 New Development Any construction activities or land alteration that disturbs one or more acres of land, on an area that does not contain Impervious Surfaces. 7.9.2.1316 Operation and Maintenance Plan (O&M Plan) A plan establishing the functional, financial and organizational mechanisms for the ongoing operation and maintenance of a Sstormwater Mmanagement Ssystem. 7.9.2.1417 Owner A Person with a legal or equitable interest in property. 7.9.2.1518 Pollutant Dredged spoil, solid waste, incinerator residue, filter backwash, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials (except those regulated under the Atomic Energy Act of 1954, as amended (42 U.S.C. 2011 et seq.)), heat, wrecked or discarded equipment, rock, sand, cellar dirt, industrial, municipal, and agricultural waste, and any other material that may cause or contribute to exceedance of water quality standards in the waters to which the Storm Drain System discharges. 7.9.2.1619 Redevelopment Any construction, land alteration or improvement of Impervious Surfaces that disturbs one or more acres of land, on an area that already contains Impervious Surfaces. 7.9.2.1720 Runoff Rainfall, snowmelt, or irrigation water flowing over the ground surface. 7.9.2.1821 Sediment Mineral or organic soil material that is transported, by wind or water, from its origin to another location. 7.9.2.1922 Sedimentation The process or act of deposition of sediment. 7.9.2.2023 Site Any parcel of land or area of property where land-disturbing activities are, were, or will be performed. 7.9.2.2124 Soil Any earth, sand, loam, clay, rock, gravel, or similar material. 7.9.2.2225 Stabilization The use, singly or in combination, of mechanical, structural, or vegetative methods, to prevent, reduce or slow erosion. 7.9.2.2326 Stormwater Any surface flow, runoff or drainage resulting entirely from any form of natural precipitation. 7.9.2.2427 Stormwater Management Plan A document containing sufficient information for the Community Planning and Development Commission (CPDC) to evaluate the environmental impact, effectiveness and acceptability of the measures proposed by the applicant for reducing adverse post-construction impacts from stormwater, including controlling stormwater runoff and promoting infiltration. 2. By revising Section 7.9.3, Responsibility for Administration, as shown below, with additions being shown in bold and deletions being struck through. 7.9.3 Responsibility for Administration The Community Planning and Development Commission (CPDC) shall administer, implement and enforce Section 7.9, with assistance from the Building Inspector, except as provided in Section 7.9.3.3 for projects within the jurisdiction of the Conservation Commission. Any powers granted to or duties imposed upon the CPDC, except the power to hear appeals, may be delegated in writing by the CPDC to other employees or agents of the Town. 7.9.3.1 Rules and Regulations The CPDC may adopt, and periodically amend, rules and regulations to effectuate the purposes of Section 7.9 or to implement any post- construction design requirements of the Town’s NPDES stormwater discharge permit. The rules and regulations may specify the precipitation estimates to be used when calculating stormwater runoff for drainage system design. Failure by the CPDC to promulgate such rules and regulations shall not have the effect of suspending or invalidating the requirements of Section 7.9. 7.9.3.2 Waiver The CPDC may waive strict compliance with any requirement of Section 7.9 or the rules and regulations promulgated hereunder, where such action is in the public interest and is not inconsistent with the purpose and intent of Section 7.9. In making this determination, the CPDC shall consider whether: • The public health, safety, and the environment will be protected; • Strict application of the requirement to be waived would undermine the public interest; • Specific substitute requirements can be adopted that will result in the substantial protection of the Municipal Storm Drain System, and the rights of persons affected by the waiver; and • The action made possible by the waiver will not violate the provisions of federal or state law, other applicable provisions of local bylaws or regulations, or the Town’s NPDES stormwater discharge permit. 7.9.3.3 Projects Within Conservation Commission Jurisdiction In order to avoid duplicative permitting proceedings, for activities regulated under Section 7.9 that will be undertaken wholly or partly within the jurisdiction of the Reading Conservation Commission and require stormwater review under 310 CMR 10.00 or the Reading Wetlands Bylaw, the Conservation Commission shall serve as the permitting authority for the stormwater permit required by Section 7.9.4.1. For those projects, the Conservation Commission shall have the role, powers and duties assigned to the CPDC in this Section 7.9, except the power to adopt regulations. The CPDC’s Stormwater Regulations shall apply to those projects, with the Conservation Commission substituting for the CPDC in carrying out the permitting as specified in this Section 7.9 and the CPDC’s Stormwater Regulations. The Conservation Commission may adopt its own Stormwater Management and Erosion Control Procedures to govern the mechanics of submission and review of permit applications. 3. By revising Section 7.9.4, Applicability, as shown below, with additions being shown in bold and deletions being struck through. 7.9.4 Applicability 7.9.4.1 Regulated Activities Any activity that results in disturbance of one (1) or more acres of land and any land-disturbing activity that is part of a Common Plan of Development or Sale that will ultimately result in the disturbance of one (1) or more acres of land, shall be subject to the requirements of Section 7.9. No person shall undertake any such activity unless it is authorized by a stormwater permit issued by the CPDC, or exempt pursuant to Section 7.9.4.2. 7.9.4.2 Exempt Activities The following activities are exempt from the requirements of Section 7.9: • Normal maintenance and improvement of land in agricultural or aquacultural use, as defined by MGL Chapter 131 Section 40 and 310 CMR 10.04; and • Normal maintenance of lawns and landscaping.; and • Activities that are subject to the jurisdiction of the Conservation Commission under Section 7.1 or MGL Chapter 131 Section 40 and its implementing regulations; demonstrate compliance with the Massachusetts Stormwater Management Standards, as reflected in an Order of Conditions; and are in compliance with the requirements of that Order of Conditions. 4. By revising Section 7.9.5, Permits and Procedure, as shown below, with additions being shown in bold and deletions being struck through. 7.9.5 Permits and Procedure 7.9.5.1 Stormwater Permit Application Prior to the commencement of any activity regulated by Section 7.9, a stormwater permit application shall be filed with the CPDC, including: • A completed stormwater permit application Form with original signatures of all owners; • A narrative describing the incorporation of LID strategies as defined in Section 7.9.2.12; • An Erosion and Sediment Control Plan satisfying the requirements of Section 7.9.6; • A Stormwater Management Plan satisfying the requirements of Section 7.9.7; • An Operation and Maintenance Plan satisfying the requirements of Section 7.9.8; and • Payment of any application fee established by the CPDC pursuant to Section 7.9.5.6. 5. By revising Section 7.9.7, Stormwater Management Plan, as shown below, with additions being shown in bold and deletions being struck through. 7.9.7 Stormwater Management Plan The Stormwater Management Plan shall contain sufficient information for the CPDC to evaluate the environmental impact, effectiveness, and acceptability of the measures proposed by the applicant for reducing adverse post- construction impacts from stormwater. The Stormwater Management Plan shall fully describe the proposed activity in drawings and narrative. 7.9.7.1 Design Standards The stormwater management measures set forth in the Stormwater Management Plan shall be designed to meet Standards 1-6 (for New Development) or Standard 7 (for Redevelopment) of the Massachusetts Stormwater Management Standards, as well as any post-construction design requirements adopted under Section 7.9.3.1. In addition, LID site planning and design strategies shall be incorporated unless infeasible in order to reduce the discharge of stormwater. 7.9.7.2 Site Plan The Stormwater Management Plan shall include a site plan, stamped and certified by a qualified Professional Engineer registere d in Massachusetts, containing the following information: • The names, addresses, and telephone numbers of the owner, the applicant, and the persons or firms who prepared the plan; • Title, date, north arrow, scale, legend, and locus map; • The site’s existing and proposed topography with contours at 2-foot intervals; • Existing site hydrology, including any existing stormwater conveyances or impoundments; • Estimated seasonal high groundwater elevation (November to April) in areas to be used for stormwater retention, detention, or infiltration; • The existing and proposed vegetation and ground surfaces with runoff coefficient for each; • A drainage area map showing pre- and post-construction watershed boundaries, drainage area and stormwater flow paths; • Identification of all critical areas and tributaries to critical areas within the geographic area shown on the plan; • Identification of all impaired waters to which stormwater from the site will discharge directly or indirectly; • Drawings of all components of the proposed drainage system; and Such other information as is required by the CPDC. Or take any other action with respect thereto. Community Planning and Development Commission ARTICLE 19 To see if the Town will vote to authorize the Select Board to settle all claims relative to 59 Middlesex Ave, LLC. v. Town of Reading filed in Federal District Court for the District of Massachusetts (Civil Action No. 20-11101) and a Complaint filed with the Department of Housing and Urban Development (Case #01-21-7269-8) by 59 Middlesex Ave, LLC, and to raise and appropriate, transfer from available funds, or borrow a sum of money, to be expended under the direction of the Select Board, for the purpose of paying expenses related to the settlement of such claims, actions, and proceedings against the Town, or take any other action with respect thereto. Select Board ARTICLE 20 To see if the Town will vote, pursuant to Section 2-6 of the Reading Home Rule Charter, to declare the seats of certain Town Meeting Members to be vacant and remove certain described persons from their position as Town Meeting Members for failure to take the oath of office within 30 days following the notice of election or for failure to attend one-half or more of the Town Meeting sessions during the previous year, or take any other action with respect thereto. Select Board and you are directed to serve this Warrant by posting an attested copy thereof in at least one (1) public place in each precinct of the Town not less than fourteen (14) days prior to April 6, 2021, or providing in a manner such as electronic submission, holding for pickup or mailing, an attested copy of said Warrant to each Town Meeting Member. Hereof fail not and make due return of this Warrant with your doings thereon to the Town Clerk at or before the time appointed for said meeting. Given under our hands this __th day of ___________, 2021. _______________________ Mark L Dockser, Chair _______________________ Anne DJ Landry, Vice Chair _______________________ Carlo Bacci, Secretary _______________________ Vanessa I Alvarado _______________________ Karen Gately Herrick SELECT BOARD OF READING _______________________________ , Constable 1 Maillett Conservation Area Chronology The Maillet Conservation Area, sometimes referred to as the Maillet, Morgan, Somes Land, consists of four parcels. The Morgan and Somes parcels were transferred to Conservation by deed. The Board of Selectmen attempted to transfer the two tax-title Maillet parcels in 1986, but current Town Counsel ruled that transfer invalid in 2018.1 1. December 28, 1884: “Morgan” lot deeded to Town “for Conservation purposes” by Elizabeth Morgan. 2. March 21, 1994: “Somes” lot deeded to Town “for Conservation purposes” by Robert and Marjorie Somes. The deed states that “Acceptance of this land was authorized by vote of the Town of Reading Conservation Commission by meeting dated October 9, 1991 and by vote of the Board of Selectmen at its meeting dated November 5, 1991.” 3. January 10, 1986: Letter from Camille Anthony, Chair of Conservation Commission, to Paul Dustin, Chair of Board of Selectmen. She requests that the Maillet Property, which has “recently been taken by the Town as tax-possession land,” be given to Conservation Commission. She also states that Article 17 of 1937 Annual Town Meeting could be used to convey the property to Conservation. 4. February 7, 1986: Letter from John Agnew, Executive Secretary to Board of Selectmen, in response to the letter from Ms. Anthony above. He states that the Board of Selectmen “voted that this land be given to the jurisdiction of the Conservation Commission.” The land was transferred under the authority of Article 17 of the 1937 Annual Town Meeting. 5. September 13, 1999: Memo from Karen DeFrancesco, Conservation Administrator, to Peter Hechenbleikner, Town Manager. She states that the two Maillet parcels are still on the Tax Possession List of August 30, 1999 despite having been transferred to Conservation in 1986. She encloses the letters itemized as #3 and #4 above to support the transfer. 6. December 24, 2018: Bob LeLacheur states in an email that Town Counsel could find no legal transfer of the land in Town or land court records. He further states that “Town Meeting took the issue up in the 1930s but never completed any action ”. 7. January 8, 2019: The Select Board vote to ratify the Conservation Commission’s management of the two Maillet parcels and to authorize the Conservation Commission to continue managing the land. Enclosures a) Map titled “Maillet Parcels to be Transferred to Conservation, dated July 3, 2019 b) Property map 99 rev. Jan. 1, 2001 c) Article 17 1937 d) Morgan lot deed 1984 e) Somes lot deed 1994 f) January 10, 1986 letter g) February 7, 1986 letter 1 The two Maillet parcels, previously numbered map 99, lots 2 and 21, are now numbered map 26, lots 32 and 50. 2 h) September 13, 1999 memo i) December 24, 2018 memo j) January 8, 2019 Select Board minutes, pp 1,2 of 4 26-50(old 99-21) 26-32(old 99-2) 26-51 26-52ABERJONA R IVE R Parcels to betransferredParcels to betransferred MAILLETCONSERVATIONAREA THELINBIRDSANCTUARY DICENZO LOWELLST LOWELL ST VINE STHARTSHORNSTGROVESTH U N T S T L E E S TBON DSTIN TERVALETERW IL L O W S TLegend Maillet Conservation AreaParcels to be Transferred to ConsSewer Easement (approx.)TrailExistingProposed Map by Town of ReadingMap date 7/3/19 MAILLET PARCELSTO BETRANSFERRED TO CONSERVATION 0 100 20050Ft ± MEMORANDUM TO: Peter Hechenbleikner, Town Manager CC: Board of Selectmen; Conservation Commission FROM: Karen DeFrancesco, Conservation Administrator DATE: September 13, 1999 RE: Tax Possession Properties-Maillet, Map 99, Parcels 2 and 21 In reviewing the Tax Possession List of August 30, 1999, I have discovered that the above referenced properties were transferred to Conservation back in 1986. The two parcels abut the Maillet Conservation Area; border the Aberjona River, and contain extensive wetlands. Please find enclosed two letters dated January 10, 1986 and February 7, 1986 regarding the above transfer. In addition, I have enclosed a copy of the Conservation Commission’s Criteria for Open Space adopted December 16, 1992 and contained in the 1995 Open Space and Recreation Plan. If you have any questions, please contact me. Thank you. Town of Reading 16 Lowell Street Reading, MA 01867-2683 Conservation Administrator (781) 942-9016 Fax (781) 942-9070 Email: kdefrancesco@ci.reading.ma.us OWN Or Hr O' Town of Reading Meeting Minutes RECEIVED TOWN CLERK READING, MA. Board - committee - commission - council: 2919 MAR 20 PM 2: 48 Select Board Date: 2019-01-08 Time: 7:00 PM Building: Reading Town Hall Location: Select Board Meeting Room Address: 16 Lowell Street Session: Open Session Purpose: General Business Version: Attendees: Members - Present: Andy Friedmann, Barry Berman, Vanessa Alvarado, Dan Ensminger, John Halsey Members - Not Present: Others Present: Town Manager Bob Letacheur, Executive Assistant Caitlin Saunders, Bill Brown, Nancy Docktor, Shannon Coughlin, Julie Thurlow, Elizabeth Gomez, Kristyn Kaupas, Glenn DeCesare, Cathy Hoodle, Crystal Hudson, Mike Foley, Kathleen Devine, Tom Gardiner, Jean Jacobs, Will Finch, Ben Ream, Kim Honetschlager, Megan Fidler Carey, Linda Antinoro, Marianne Downing, Sarah McLaughlin, Anne Boffa, Anthony D'Artista Minutes Respectfully Submitted By: Topics of Discussion: Andy Friedmann called the meeting to order just after 7 PM. Recognition — Julie Thurlow Julie Thurlow is the President and CEO of Reading Cooperative Bank. Mr. Berman wanted to recognize her for her 25 years of service to the citizens of Reading as a banker with Reading Coop. Julie's leadership, mentoring and role modeling have earned her accolades outside of Reading. Mr. Berman made a motion to recognize Julie Thurlow, with a second from Mr. Friedmann the motion passed with a 5-0 vote. Liaison Reports Mr. Berman noted Ms. Alvarado and himself have met and been working as the ad-hoc Human Rights subcommittee. They are almost ready to send out invites for people to join and start doing work. Also, as an FYI, on Monday, January 14`h, DA Marian Ryan will be at the Pleasant Street center talking about scam awareness with the seniors. Ms. Alvarado attended the Birch Meadow Master Plan Subcommittee earlier this evening noting they have the surveys back and will start to go through them and process the Information. The cemetery board is working on and planning to update signage in the spring. Mr. Halsey explained that Post Mark Square has finally crossed their last hurdle last night so they should be starting to break ground any time now. The Boston Area Boy Scout council Page I 1 recognized all 2018 Eagle Scouts this past weekend and Reading had the most men in all of the communities. Mr. Friedmann noted on Christmas day the board got an email about construction noises and he wanted to make everyone aware of the Town's Bylaws which lay out the allowed construction times. He attended the Board of Health meeting where they discussed their new draft of pesticide regulations and will be coming to the board soon. He also noted he reviewed a violation log for the Board of Health going back a number of years and he noticed something that concerns him; there are no fines the past 2 years compared to previous years. It is concerning to him we haven't had any violations and it is something we need to keep an eye on. Public Comment Bill Brown asked for an update on recognizing Frank Driscoll and Oakland Road. Town Manager Bob LeLacheur mentioned they are working with the family to decide how they want to recognize him and you should see more on that In February. Ms. Alvarado noted as a part of the Oakland Rd subcommittee, her and Mr. Halsey will be meeting next week to look into this. Kristy Kaupas wanted to follow up on her traffic concerns regarding Haverhill and Timberneck. She understands that Haverhill Street is being looked into but she finds it very unacceptable that the traffic officer told her they won't be doing anything for Timberneck because there haven't been any accidents. Elizabeth Gomez wanted to follow up about getting a sign placed at the end of her driveway to slow people down so she can back out of her driveway. Cadance Thomases wanted to speak up again regarding her displeasure with the Lincoln/Prescott project. Carlo Bacci noted the Hitching Post is closing and while it may be due to the owner retiring he still feels certain members of the Select Board are going down the wrong path voting for a split tax rate and they can continue to expect businesses to close due to it. Town Manager's Report Mr. LeLacheur echoed the board's thoughts about Julie Thurlow. He noted some future meeting dates have been change and moved to accommodate a Jewish Holiday. We are scoping out a project to put in a crosswalk by the library. He wanted the boards' thoughts before he has staff continue. The board all agreed this is important to manage the foot traffic to the library and school in the area. There was a staff meeting yesterday regarding the Post Office project and as Mr. Halsey noted they have passed their last hurdle. They now can come in and apply for all their permits. He noted the town Is sad to see the Hitching Post go. The best way to support our local businesses is to shop there. Managjpa Maillet Land Town Counsel researched back to 1937 Town Meeting to find that they did not do something they thought they did; so some parcels are still In your care even though Conservation has been taking care of them. This motion simply allows Conservation to continue to take of the land. Ms. Alvarado moved that the Select Board vote to: (1) ratify the Conservation Commission's management of two parcels of land, shown on the Assessors' records as Plat 26 lots 32 and 50 (formerly Plat 99, lots 2 and 21), held under the Board's care, custody and control, and (2) authorize the Conservation Commission to continue managing said parcels as open space on behalf of the Board. The motion was seconded by Mr. Berman and approved with a 5-0 vote. Page 12 ARTICLE 17 To see if the Town will vote to transfer the care, custody, management and control of the properties off Lowell Street and Willow Street, shown on Assessors’ Map 26 as Lots 50 & 32 (previously referred to as Plat 99, lots 2 and 21) which properties together contains 5.82 acres, more or less, to the Reading Conservation Commission, for the sole purpose of open space management; provided, however, that the Reading Department of Public Works shall have the right to replace, repair, maintain, and make necessary improvements to the existing sewer drains on the properties as shown on the following plans on file with the Town Clerk: 1. A plan of land entitled “Plan Showing Taking for Proposed Sanitary Sewer and Force Main from Mineral Street to New Senior High School, Town of Reading, Board of Public Works,” prepared by Whitman & Howard, Engineers, Boston, Mass., dated June 1953, Sheet 2 of 5 Sheets; 2. A plan of land entitled “Record Sewer Plan Interceptor Pumping Station to High School, Board of Public Works,” prepared by Philip Welch, Superintendent, dated May 1959; 3. A plan of land entitled “Town of Reading Massachusetts, Board of Public Works, Easement Through Private Property For Drainage And Sewerage Purposes, Hunt Street,” prepared by the Engineering Division, Phillip Welsh, Superintendent, dated September 1963, and recorded with the Middlesex South Registry of Deeds on March 23, 1964, as Plan 266 of 1964; and 4. A plan of land entitled “Town of Reading Massachusetts, Board of Public Works, Record Sewer Plan Hunt St. and Interceptor No.1,” prepared by the Engineering Division, Phillip Welsh, Superintendent, dated April 1965, such plans on file with the Town Clerk; and provided further that such transfer of care, custody, management and control shall be subject to such right of the Department of Public Works; or take any other action with respect thereto. Town of Reading Meeting Minutes Page | 1 2016-09-22 LAG Board - Committee - Commission - Council: Select Board Date: 2021-02-02 Time: 7:00 PM Building: Location: Address: Session: Open Session Purpose: General Business Version: Draft Attendees: Members - Present: Mark Dockser, Karen Herrick, Vanessa Alvarado, Carlo Bacci, Anne Landry Members - Not Present: Others Present: Town Manager Bob LeLacheur, Executive Assistant Caitlin Saunders Nocella, Dr. Lopez, Kevin Bohmiller, Jenna Fiorente, Jead Delios, Greg Burns, Julie Mercier, Will Finch, Kathy Kelly, Chuck Tirone, Rich Hand, Mark Novak Minutes Respectfully Submitted By: Topics of Discussion: This meeting was held remotely on Zoom. The meeting was called to order at 7:00 PM. Dr. Lopez started the meeting off with a COVID update. He noted we seem to be in the post-surge period. There is a clinic on Friday to finish phase I and test protocols for mass clinics for the next phases. We currently have a very low amount of vaccines. Town Manager Bob LeLacheur noted any veterans who are enrolled in VA healthcare can get vaccinated through them. He noted we are ready to do large scale clinics once we actually have the vaccine to give. Fire Chief Burns noted first responders will be getting their second doses next week. Liaison Reports Vanessa Alvarado noted the School Committee has picked the finalists for the Superintendent. RMLD has brought to our attention a grant that would help put in electric charging stations but they need guidance for location. Carlo Bacci noted Recreation approved to move forward with a walk way at Birch Meadow and a storage/ restroom pavilion. CPDC has been discussing outdoor dining for the spring and changes to the downtown smart growth district. Anne Landry noted the board received a request from concerned parents asking the to attend a meeting tomorrow evening. The board decided Mark Dockser and Vanessa Alvarado will attend for the board. Page | 2 Karen Herrick noted there is an upcoming VASC meeting to which she needs to recuse herself because her daughter has an application in. Van essa Alvarado noted she can stand in for Karen for this meeting. Karen Herrick also attended the open space planning forum. Mark Dockser attended the Permanent Building Committee to discuss if the water tower project could be something they could handle. The most obvious point they made was this isn’t a building; but they did ask for an application to be filled out for their review. Town Manager Bob LeLacheur thanked the DPW workers who have been working for 2 days straight now plowing and clearing snow. They have been sent home for rest but will be back out later tonight to continue clean up efforts. Public Comment Will Finch commented that recently it has been noted the trails committee needs to use their funds to take down trees. He doesn’t believe that funding should have to come from them since their funding is limited. Kathy Kelly agreed with Mr. Finch noting they do not have to funds to take down trees and she has some concerns that this is falling on them. Carlo Bacci wanted to take a minute and note he would like to move forward with creating a new liquor license for one of businesses Erin mentioned last week. He thinks this is a good opportunity to get ahead of it and have a license available for when they need it. It’s about creating opportunities for businesses to want to be in town. PARC Community Development Director Julie Mercier presented the board with a new committee for them to consider creating to discuss the downtown parking. The board recently saw this proposal but noted they think there should be more people from the downtown area on the committee. The new proposal tonight would include 9 members total now. One member from the Select Board, one member from CPDC and 7 members from the downtown area to represent the residents and businesses owners. Julie also reminded the board of the potential conflict of interests that Town Counsel sent them a memo regarding. Vanessa Alvarado wasn’t sure if she liked the 4 categories for the 7 other members. It was noted the Select Board will be picking all the members and these are just guidelines but they will be the ones to pick the members in the end. The board agreed they liked the 9 member board and the proposal. Carlo Bacci moved that the board create the ad-hoc Parking Advisory & Recommendations Committee (PARC) as presented: The PARC shall be comprised of nine (9) members and will be a Committee as defined by the Town of Reading Home Rule Charter. In selecting the PARC, the Select Board shall fill the positions as follows: • One member from the Select Board; • One member of the Community Planning & Development Commission (CPDC), recommended by the CPDC; • Seven other members, and the Select Board will consider the following qualifications: o Residents of the downtown or greater downtown area; o Downtown business owners, managers or representatives of the Reading/North Reading Chamber of Commerce, who are also Reading residents; o Employees of the downtown, who are also Reading residents; and o Residents or resident business owners/managers with professional experience or keen personal interest in parking management, Page | 3 economic development, data analysis or service systems design and logistics. The PARC will sunset within one month from the date of the Select Board vote on the series of recommendations, or by December 31, 2021, whichever comes first. If needed, this date can be extended by vote of the Select Board. The motion was seconded by Vanessa Alvarado and approved with the following roll call vote: Herrick – yes; Alvarado – yes; Landry – yes; Bacci – yes; Dockser – yes. Birch Meadow Master Plan Update Recreation Director Jenna Fiorente, Conservation Administrator Chuck Tirone, Recreation Chair Rich Hand and Consultant Mark Novak were present for this agenda item. Consultant Mark Novak gave the board a thorough presentation which can be found in the Select Board packet for this meeting date on our website. The presentation broke down the best options for the Birch Meadow area, the top priorities or projects in phases and a general idea of costs for each project. Mark Dockser asked if the walkways being proposed would be wide enough for strollers and bikes. It was noted they would be wide enough to get a vehicle in there when needed. Vanessa Alvarado asked if lighting was needed on the walkways if most of the surrounding fields would be lit at night. It was noted everything would be able to be turned off/on remotely so when lighting isn’t needed it can be easily turned off. Carlo Bacci thanked everyone and hopes we can move this along and start some of these projects. Open Space Update Conservation Administrator Chuck Tirone, Conservation Commission Chair Mike Flynn, Consultant Krista Moravec and Martha Moore were present for this agenda item. They had a meeting last night to update the 2013 Open Space plan. Consultant Krista Moravec gave the board a presentation which can be found in the Select Board packet for this meeting date on the website. The presentation went over why we have an open space plan, what the benefits are, and where we are today with the plan. Mark Dockser asked if the Birch Meadow Master Plan process has been in conjunction with this as well. He also asked about funding. Maillet Land Update Town Manager Bob LeLacheur gave a background on this noting the board/community is facing a two-step process to rectify some things that were done in the 30’s. The board needs to vote to determine the Maillet Land is no longer needed for what it was intended for orginially and should be transferred to the Conservation Commissi on. The second action would be an Article at Town Meeting. They will need to create easements for DPW that will create a little complicated language in the Article. Conservation Administrator Chuck Tirone noted the Maillet Land is 4 parcels and two are already deeded to Conservation and they would like the other 2 to come over to them as well. There have been attempts to do this in the past. Conservation Commission would really appreciate if you would support this for the Spring 2021 Town Meeting. DPW Protocols DPW Director Jane Kinsella noted that herself, Conservation Administrator Chuck Tirone, ConsCom Chair Mike Flynn, Community Development Director Julie Mercier, Tree Warden Mike Hannaford and Assistant DPW Director Chris Cole started meeting last spring to come up with some protocols for DPW with regards to communication on tree removal on Page | 4 conservation land. They drafted this policy which is in the Select Board packet for this meeting date on the website. She noted they started by looking at all th e tree removal requests they have gotten and the facts surrounding the requests. She discussed the funds they have for tree removal and the costs they have been incurring. Karen Herrick noted she wanted to speak to the tree warden and asked why he is not here. Jane Kinsella explained that he had every intention of being here tonight, however, he just worked 36 hours straight during the snow storm and could not be here. Karen Herrick noted she needs to here from him that he is good with this. Jane Kinsell a noted he worked on this with them and signed off on it. The snow storm was unplanned and he would have been here if he wasn’t working the storm. Chuck Tirone noted the Trails committee needs to be involved; their budget is so miniscule and they need it to maintain the trails, there is not enough to also use to take down trees. Karen Herrick asked if the Town Forest committee has reviewed this since they are mentioned in this policy as well. Vanessa Alvarado asked if the issue is more funding or staffing. Jane Kinsella noted they take down the tree if they can but if they cannot; they have to outsource, which is expensive. Our current tree department is only three people and they are constantly trimming trees and doing maintenance. Vanessa Alvarado noted she is concerned about the trails committee budget being in the policy since it is so small. Conservation Commission Chair Mike Flynn noted ConsCom has been making an effort over the past few years to develop a tree policy that includes mechanisms to put funds into the shade tree fund. He thinks it has been successful but they are still looking into more ways to increase funding for trees. Jane Kinsella noted DPW now meets monthly with Conservation to increase communication and talk about projects coming down the pipeline. Town Manager Goal Update The board decided to move this discussion until a future meeting. The chair asked members to look over what Bob LeLacheur had put in their packet and send him any questions they have in advance of their next conversation. Karen Herrick asked if she could have minutes to address the Town Manager. She noted she has three things she would like to address. The first item was she has been hearing rumors about disturbing things going on between the teachers an d police officers; the second was that there has been no update about the election day police incident. She has heard a rumor that an officer was suspended and wants to know why the Board was not told. Lastly, she wants to know the status of the Deputy Police Chief hiring. The Town Manager attempted to get the attention of Chair Dockser, and then noted that he should not discuss personnel matters in public. He added that both he and Superintendent Doherty had made previous statements about the police/teacher situation. Karen replied that she was not aware of that statement. Minutes Carlo Bacci moved to approve the meeting minutes of January 5th, 2021 as amended. The motion was seconded and approved with the following roll call v ote: Herrick – yes; Alvarado – yes; Landry – yes; Bacci -yes; Dockser – yes. Carlo Bacci moved to adjourn at 10:27 PM. The motion was seconded by Anne Landry and approved with the following roll call vote: Herrick – yes; Alvarado – yes; Landry – yes; Bacci -yes; Dockser – yes. 1 Saunders, Caitlin From:LeLacheur, Bob Sent:Wednesday, February 24, 2021 3:18 PM To:Reading - Selectboard Subject:press release from the SB Chair and Vice Chair Attachments:Press Statement Reading Litigation 02232021 Final.pdf Please find attached a press release from the Chair and Vice Chair, that will be sent to the local media shortly. Thanks, Bob Robert W. LeLacheur, Jr. CFA Town Manager 16 Lowell Street Reading, MA 01867 townmanager@ci.reading.ma.us 781-942-9043 (Fax 9071) Town Hall hours 7:30am-5:30pm MWTh; 7:30am-7:00pm T; closed Friday Please remember when writing or responding that the Massachusetts Secretary of State has determined that general email is a public record FAX: (781) 942-9071 Administrative Services Department Email: mkraunelis@ci.reading.ma.us (781) 942-6611 FOR IMMEDIATE RELEASE: CONTACT: February 23, 2021 Matt Kraunelis: 781-942-6611 Administrative Services Director Town Faces Civil Suit Related to Officer-Involved Shooting (READING, MA, February 23, 2021) - Select Board Chair Mark Dockser and Vice Chair Anne Landry report that a federal civil suit has been filed against the Town and two individual police officers by the family of Alan Greenough arising out of the use of deadly force by Reading police officer Erik Drauschke on February 3, 2018. This incident was investigated by the Middlesex District Attorney’s office, who requested that a judicial inquest be conducted. Subsequently, the case was presented to a grand jury and the officer was charged with manslaughter. The officer has been on unpaid leave since his indictment charged on September 23, 2020. That case is proceeding in the Superior Court. The Town is being represented in the civil case by Attorney Leonard Kesten, who was appointed by the Town’s insurer, the Massachusetts Interlocal Insurance Association (MIIA). The Select Board will be provided legal updates in executive session and will keep the community apprised where and when it can. ### Town of Reading 16 Lowell Street Reading, MA 01867-2685 1 Saunders, Caitlin From:LeLacheur, Bob Sent:Thursday, February 25, 2021 9:53 AM To:Reading - Selectboard Cc:Gemme, Laura; Kraunelis, Matthew Subject:FW: [External]: Evening Briefs: Vote by Mail Extension | "Unique Perspective" For the next SB meeting packet, and fyi for those that did not yet receive it From: Granoff, Emily (SEN) <Emily.Granoff@masenate.gov> Sent: Thursday, February 25, 2021 9:46 AM To: LeLacheur, Bob <blelacheur@ci.reading.ma.us>; Delios, Jean <jdelios@ci.reading.ma.us>; Herrick, Karen <karen.herrick@ci.reading.ma.us>; Forwarding Account for Dan Ensminger <Forwardingaccountfordanensminger@ci.reading.ma.us>; Carlo Bacci <carlobacci@hotmail.com>; alandry@ci.reading.ma.us; Mark Dockser <mdockser@gmail.com>; Vanessa Alvarado <vanessa_alvarado1@yahoo.com> Subject: Fw: [External]: Evening Briefs: Vote by Mail Extension | "Unique Perspective" Good morning all, Excited to share the following State House News article about the House Speaker's announcement that the House will seek to extend vote by mail options until 6/30/21. Senator Lewis fully expects the Senate to support this effort, and we will keep you informed. House Will Seek to Extend Vote By Mail Option The House will seek to extend vote by mail options until June 30, 2021, Speaker Ron Mariano announced Wednesday night. In a statement, Mariano said the move will respond to local concerns and will occur while House lawmakers work on a bill to make voting by mail, which was introduced last year, a permanent fixture in Massachusetts elections. "While the COVID-19 pandemic continues to cause devastation in our communities, we must find commonsense ways to empower voters, protect residents and explore ways to keep essential aspects of life as normal as possible," he said. "Since we first enacted vote by mail, it has proven to be secure and even increased voter turnout in many places. The House looks forward to making vote by mail a permanent way for residents to exercise their right to vote during and beyond the pandemic." Vote by mail authorizations are scheduled to expire March 31, but there's broad support in both branches for an extension to accommodate any local elections scheduled for this spring, while work on a larger package of election reforms continues. - Michael P. Norton/SHN Please reach out with any questions. Best, Emily From: State House News Service <news@statehousenews.com> Sent: Wednesday, February 24, 2021 8:10 PM To: State House News Service <news+malegislature.gov@statehousenews.com> Subject: [External]: Evening Briefs: Vote by Mail Extension | "Unique Perspective" 2 House Will Seek to Extend Vote By Mail Option | Lynn Court Nominee Brings Background in Law, Policing | Evening Briefs: Vote by Mail Extension | "Unique Perspective" State House News Service House Will Seek to Extend Vote By Mail Option Lynn Court Nominee Brings Background in Law, Policing Click here to read more Serving the working press since 1894 http://www.statehousenews.com For assistance with your subscription to the State House News Service, reply to this message or e-mail news@statehousenews.com. 1 Saunders, Caitlin From:LeLacheur, Bob Sent:Wednesday, February 24, 2021 3:06 PM To:Reading - Selectboard Subject:FW: budget doc Attachments:Final Budget Doc.pdf Good afternoon, Tonight the School Committee FY22 budget is in front of FINCOM. That plus the attached constitute the balanced FY22 Town Manager budget. FINCOM will be reviewing this attached budget on March 3rd and March 10th. A copy of this document will be in your meeting packet, set to be sent out tomorrow. The agenda will be posted today, but we need to wait another day for debt issuance tomorrow and some information from Town Counsel. Thanks, Bob Robert W. LeLacheur, Jr. CFA Town Manager 16 Lowell Street Reading, MA 01867 townmanager@ci.reading.ma.us 781-942-9043 (Fax 9071) Town Hall hours 7:30am-5:30pm MWTh; 7:30am-7:00pm T; closed Friday 2 Please remember when writing or responding that the Massachusetts Secretary of State has determined that general email is a public record From: Saunders, Caitlin Sent: Wednesday, February 24, 2021 2:40 PM To: LeLacheur, Bob <blelacheur@ci.reading.ma.us> Subject: budget doc Caitlin Saunders Nocella Executive Assistant Town of Reading 16 Lowell Street Reading, MA 01867 781-942-6644 csaunders@ci.reading.ma.us Town Hall Hours: Mon, Wed, Thurs 7:30 am – 5:30 pm Tues 7:30 am – 7:00 pm Friday - CLOSED 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 Reading COVID- 19 Phase 3 Vaccination Meeting Draft Notes February 8, 2021 Attendance: Mark Dockser, Chair, Select Board Kerry Dunnell, Board of Health Bob LeLacheur, Town Manager Greg Burns, Fire Chief David Clark, Police Chief Matt Kraunelis, Administrative Services Director Jean Delios, Assistant Town Manager John Doherty, Superintendent of Schools Jayne Wellman, Business Administrator Paul Jackson, Deputy Fire Chief Kevin Bohmiller, Community Services Director Peter Mirandi, Interim Health Director Gail Dowd, Chief Financial Officer of RPS Vaccine: On Friday 2/5, Community Health Centers will not receive a new vaccine allocation if less than 65 percent of doses received have been administered. The percentage will be calculated by dividing cumulative doses administered by cumulative doses shipped (removing any doses received between 2/1 and 2/5). This threshold will continue to be used on an ongoing basis. Kerry noted that the town has to hit 85% - it is not in the same grouping as Community Health Centers. New MIIS reporting: Effective this week, provider sites must comply with the MIIS Reporting Order for COVID Vaccine to report vaccine administration data to the MIIS within 24 hours (not the 72 hours previously required). Your doses administered information in the MIIS and your responses to the weekly MCVP survey, together with the number of doses available to Massachusetts, are used to determine your allocations. If you do not report doses administered to the MIIS, it will appear that you have more inventory than you may actually have on hand. This will reduce your next allocation. Peter and Public Health Nurses are filling out this information. Updated Vaccine request process: Review the COVID-19 vaccine request process for MCVP-enrolled providers. This process will continue until supply is sufficient to allow providers to place their own order through the MIIS. Only request the number of vaccine doses that you can fully administer within 10 days of receipt. Future state allocation decisions will be based upon provider inventory. Unused vaccines will be redistributed to other providers. When a clinic is set up, through PrepMod, we can create a waitlist, and it can be somewhat unlimited, and then you can call someone off that list and enter them into PrepMod. May not want to open appointments until we populate with people on our list. Keep them private clinics until we move them to public info. Even the clinic if listed is private still allows others to register. Jayne updated website and social media with the 211 Call Center information at 7AM. General discussion and expression of frustration with the reliance by the state on the local public health departments. Our systems are good, but not designed for this. This was not a DPH decision, this was a State Command Center decision to put pressure on the locals. Goal 2: Protect the health of employees. Review vaccine clinic held on Friday, February 5, 2021 DPW set up the site at the field house, set up three lanes, staffed with administrative folks, firefighters, nurses. Paul Jackson – it was a good day but we made mistakes that need to be corrected. They sent out the wrong link. So only have one person send out a link. Layout – need to get together with engineering… check-in was too close to the first lane. Some other layout issues. They had 5-6 admin trained the day before on PrepMod. They picked it up easily and were able to move forward. No need to have paperwork, a little glitch with the paperwork. They heard from the nurses that the paperwork was unnecessary and slowed them down so they will eliminate that for the next round. Hope to get more admin trained for the next round. Had a lot of firsts. They had people that showed up but didn’t sign up. It was a little slow – they hope with the ten lanes it will move faster. Part of PrepMod wasn’t working, unable to send a message to someone sitting outside waiting in their car. Signage – they need additional signage to bring people around. Need volunteers to help move people around. General consensus was that it was well done. Second dose first responders February 9th and 16th At the Pleasant Street Center. They are planning on 80 doses tomorrow. Reporting to the public and first responders: Peter Mirandi The chair of the BOH, Dr. Lopez, has stated that they have too many health division people reporting the numbers. The board should keep reporting the numbers; Laura calls nurses and Christine gets her numbers from MAVEN. We are going to start going to a weekly basis, by Christine from MAVEN and will report it to the SB for an accurate count. Website should align with whatever the SB is getting for information. For first responders, daily reports to public safety, if someone at the address is COVID positive. The addresses were sent to public safety daily, but Peter doesn’t think it is necessary, as it is inefficient and they don’t have the time to pull that info together daily. Paul Jackson disagrees. If it is your health division personnel issues it is your issue, getting the addresses to Paul is vitally important. If they are going into the house with Covid, the gowns go on, etc. Having the addresses is good. If the matter is HOW to get the addresses, that’s changeable. Laura gets information from 3 nurses, and Christine gets from MAVEN. What is the difference from what Laura is getting from three nurses, and she is contacting school nurses. She gets info from schools prior to it going to MAVEN. Back in the beginning when we didn’t know as much as we do now, that may have made sense. Getting it from a single source is cleaner. Presumptive cases. At the beginning Maven was thought to be slower. Staff have not kept up with clearing cases, and the data has not been accurate recently. The Town Manager noted the numbers should be from one source and a confirmed source, for official reporting. The division should not be wasting its time doing duplicative and apparently inaccurate work. This sets back those that are doing good work in the division. There is no excuse for bad data. If there are not enough resources to do this right and to continue to report daily to public safety, please advise. Kerry agrees with Bob and thinks it should be one source and a reliable and a confirmed source. We want the best available information: from Christine and Maven is the best source. Public health issues/privacy. asymptomatic cases discussion. The public health data confirms that it is more widespread than we are recording. Need to operate from facts, and thus, have to clear cases. Fire Chief notes that the information that is put out publicly must be accurate. Continuing to furnish these addresses to public safety is essential. We need to give our first responders the opportunity to kick up their PPE a notch. Its important to help pick people up with appropriate gear on when they are in close contact. PPE remains in short supply. When it is routine medical, police will just direct traffic and not go into the residence. If they are responding to a domestic, then they need to know the address so that officers going into a home are properly protected. Police and Fire think it is crucial information to have the info from COVID. Can they rely on the MAVEN reporting feature. Single source is key, and there is a functionality to report information to public safety. Daily is essential – it affects the approach for the response for first responders. Improving process, understanding that it is a challenge. Bob closes that daily reporting is excepted until and unless someone explains to him why this cannot be done with current resources. Goal: 1 Protect the Health of Residents School updates School testing program John Doherty – a lot is happening behind the scenes. There is a vendor that they have been assigned – CIC health. They should get results within 24-48 hours. They are going to do a slow roll out. They want to make sure that the nurses are trained, that they get the adequate support that they need from DESE, which they haven’t seen yet. Week after vacation they will do athletes and extracurricular, then later start with a full implementation. BINEX kits have already shown up, and additional material should be delivered today to each school. Consent forms have come in to the tune of about 1,000. A lot of logistical issues to work out. Another thing to put on our nurses, but they are excited to be a part of this and they are excited to offer another mitigation step. Start slow roll out Feb 22. Do nurses get called in on weekends very often? Not so much, but helping with the town for contact tracing, so they submit time cards for any after hours work that they are doing. Certainly, for second shots, FRIDAY is the best day for that so that they have a couple of days to recover. They are moving forward. Fall 2 Sports update There are a couple of weeks left in this season. They haven’t had to shut down any teams recently, which is good. This is why they want to start testing the next season’s athletes. Fall 2 is starting on the 22nd. Football, Volleyball, Cheer (at games), indoor track (which will be outside), and girls swimming. Indoor track and swimming will be virtual – so they do it at their home site and report their times. An assigned referee will report the times for competition purposes. Football supposed to have their first game on March 19 and they need 15 days of practices before that. They have also mandated that athletes have to get tested in order to participate. Can livestresam from the booth at the stadium. RCTV would have to come test that out and they have already been asked to do that. Phase II vaccination planning First 100 doses is Scheduled for Friday, February 12th. First priority 75 years of age and older Location Senior Center 3 Lanes Need a start time Messaging the public (see below goal #4) Current list of elders – 281 or so have called in. Only a handful have emails. My Senior Center Website social media Announce the clinic on website and social media all at the same time First Clinic and Bob’s NOTIFICATION: General Call, we have a limited supply, and we need to have a call center to handle this population group when the phones start ringing. Have people ready to take calls. Direct them to resources. Can’t say that its just for one clinic. We need a script for all the people who answer the phones. Having a difficulty figuring out people to call – 100 doses we need to get into people’s arms. Survey responses have to be submitted on Tuesday at 5PM, then when do you hear when its confirmed. Generalized release from Bob about how to parse the first appointments into the system. Put it out for Friday. Overview with a long-term approach. We may have an event this Friday, so keep checking the website. Pending the supply from the state, we will aim to have regular clinics on Friday. Put out the link to allow people to register for appointments statewide. IT has some training for employees that can be helpful. Prepare the website with the link and the information prior to Bob’s message for the launch. And add in request that people who are contacted for Contact Tracing to please return their calls. Jayne to send some sample language to the group for announcing the clinic. Assisting populations signing up with PrepMod BOH/MADPH concerns about privacy – no evidence that we are creating health care records or violating privacy matters. Elder Services Nurses too busy Call Center: Have to be at desk, and when no one is available it has to be routed to a voicemail. Staff needs Augment with Administrative Staff that volunteered to assist PrepMod Training by IT How to remind Seniors of time of appointment Second dose reminders Jackson – it is hard to send it out to a few. WE can set up a clinic for the 19th Goal to transition to running clinics every Friday BOH/MADPH privacy concerns about PrepMod. What is the objective of the next Town Manager update to the community? Use of town-wide Code Red message Other items: Meeting adjourned at 1:47 PM Reading COVID- 19 Command Meeting Agenda February 22, 2021 NOTES Attendance: Mark Dockser – Chair, Select Board Kerry Dunnell – Board of Health Town manager Bob LeLacheur Fire Chief Burns Police Chief Clark Assistant Fire Chief Jackson Superintendent John Doherty Assistant Town Manager Jean Delios School CFO Gail Dowd Administrative Services Director Matt Kraunelis Interim Health Director Peter Mirandi Business Administrator Jayne Wellman 1. Goal: 1 Protect the Health of Residents a. School updates i. School testing program – begins this week (today). Participation on the part of the students and teachers is lower than had been hoped. Other districts saw low participation but saw them increase as the program increased. ii. Fall 2 Sports update – student athletes must consent to participate in Testing in order to play sports. That is legally allowed. iii. Discussions school building rentals, both indoor and outdoor. Particularly in the spring, good to start having the conversation now. Traditionally they have worked very closely with the Town’s Recreation division to reserve what they need after the School Department reserves their space, THEN it goes to outside groups. Before it gets ahead of them, make sure that they understand the space needs. Right now, with exception of Coolidge, all gyms are being used as cafeterias. And now the high school is beyond that, because they have doubled people in the building. There have been small changes to the guidance since last fall. For indoors – no spectators. For the outdoors, they are encouraging people to stand, not on the track, but outside the fence for the endzones or the far side. iv. Any idea when updated state guidelines will roll out? Not known at this time. 2. Goal 2: Protect the health of employees. a. Second dose for those vaccinated on February 5th. Many changes from the last time Command met. It has now gone to the state massvax sites, with the hold out that local communities can do home bound seniors, senior housing, and low-income housing (subsidized by federal govt). And they have to fill out a survey form and send that in. Thus, they need to know who the provider is, then the town has to provide them with specific info. 50 Baystate Road has been vaccination, 75 Pearl Street and Artis have all been vaccinated. Residents of Elderberry Lane (Main st) and Frank Tanner Drive have been interested in vaccinations from the town. Estimate 240 residents that are interested in having this service from the town. Reached out to CVS to see if they are interested in coming in, but they are focused on delivering the vaccine in their stores in selected locations. The person they communicated with is not interested in partnering with the town. The town vaccinated 20 home bound seniors last Friday. We have about 50 home bound people we know of, and are getting the word out (subject to receiving vaccine). Also getting that from Mystic Valley Meals on Wheels. Criteria is pretty reasonable for getting an in-home service who otherwise wouldn’t be able to get to a mass vax site. See if we can do that ourselves, that this is something that can be done and done well at the local level. Fire Dept went out with Elder and Human Services staff to vaccinate those residents. Frank Tanner drive is very eager and so is Elderberry lane – not sure if they qualify for Senior or Low-Income housing. Bob to Greg – what is the confidence with vaccine supply? Not sure right now, the State wants to support this for the local level. Kerry notes that these doses come from a different pot, tied to a federal source, so we should feel more comfortable getting that second dose. The messaging is confusing, to and from us. The state said, as of March 1, you won’t get anymore. Then the state came back and said that we will get second doses. Peter Mirandi notes that we got a message from MassDPH regarding second doses. 100 new doses are supposed to be delivered between today and WED. There is a new procedure for ordering second doses, and he is not sure what these doses are earmarked for. He said that they can get the second dose as far as out as 42 days (up from 28 days). So these can be for second doses. Apparently there are supposed to be some trainings for staff going to home bound seniors, recommends doing those trainings before sending more staff out. Chief Burns reviewed those guidelines, and nothing earth shaking – pretty standard (clean the site, transport, handle the vaccine, and hand out paperwork). Kerry talked about a letter going to the state asking for the state to reconsider its strategy. There are oversight hearings scheduled for this week. Not sure what this means for the existing strategy. The BOH is writing a letter and we are asking that be able to vaccinate our population, particularly those that want to be vaccinated within their community. 20 doses went out last Friday, and they need to go into the system that they were distributed. There are no vaccines left. Have to order vaccine TOMORROW for a clinic on March 5 for the second doses of 66 people. Peter thinks he already ordered that. They ordered 1,000 doses from Pfizer. We need to order those doses on the Feb 23 for second doses. Planning clinics and ordering on the same day regularly is good for consistency. Planning to do the second doses at the Pleasant Street Center, using 3 lines. Peter sees this as under control. Regional site seems to only be Wilmington, N. Reading, and Reading - other communities dropped out. If Johnson and Johnson approved, will it change the state strategy. Then variants…So many things going on. Bob, said what do we do if we have vaccine and no one wants it. Let’s not add to complexity right now. But J&J may be approved this week and they may put it aside for educators. Educators – seems to be a lot of interest in getting educators vaccinated. There is a lot of focus on this right now. Peter thinks this will happen quickly. The state may have the locals focus on vaccinating teachers. Chief Burns said they already looked at it for teachers, DPW, and RMLD – that is something they would use the field house for and do it over a couple of days – its about 1,000 people. May also need to plan for Austin prep and preschools as well. School department has that list. b. Vaccination Status i. We have completed 8 clinics to date. We have administered all our medication in storage. ii. Scheduling of second doses and medication ordering. Our people are in Prep-Mod. We do know when the 4-week period ends for each of these doses. Can we set these clinics up and notify them via Prep-Mod. We know when this is going to happen and when we should order it. But also ORDER the vaccine. Peter said it is ordered on Tuesday afternoons. iii. John’s People – the order needs to go in on Tuesday for March 5, have to order two weeks in advance. Tomorrow would have to order for the 12th. iv. Vaccine due dates: 5th, 12th, 19th – the BOX was full of supplies, not vaccine. v. WHO sends the email? We thought was this was done through Prep-Mod – then the Health Dept will generate that through Prep-Mod. As far as the website is concerned – You will be receiving an email from the Prep-Mod system informing you of the date for your second dose by the town of reading, so you don’t need to go out and schedule your second dose yourself. c. Jayne: post to the website: The Town is planning to provide second doses of vaccine to those already vaccinated by the Town. Those individuals will be notified directly for their appointment dates for their second vaccination dose. There is no need to call Town offices to verify. i. All 66 individuals have email addresses. We will call anyone who may need it as well. d. i. Homebound seniors Visits clarity of roles and coordination. 1. Elder and Human Services Identifying Homebound seniors. ii. Status of elderly affordable housing plans for vaccination. Eligible housing locations that may need assistance included Frank Tanner Drive with 123 residents and staff and Elderberry Lane with 115 residents and staff for a total estimate of 240. 1. Housing Agency must complete online survey a. They need our MCVP PIN number iii. Schedule for ordering second doses and clinic set up in PrepMod iv. Regional Collaboration 3. Goal 6: Communicate effectively with the public a. Encouraging vaccination – Vax Up! Mask Up! Jayne will push that forward. 4. Other items: 5. Kerry spoke about the Town Election – The legislature is quite busy, the town can’t do anything else, and absentee voting is still on the table. It is not too late to get an absentee ballot. It is too late to send out a letter to ask if people want a mail in ballot. You can still apply for a mail-in ballot. We think the deadline is a couple more weeks away. Bob will check, we think it will be more along mid-March. 6. Laura Gemme, Town Clerk, may attend a SB meeting. Other outreach efforts on website, etc – Matt to check. 1 Saunders, Caitlin From:Walt Tuvell <walt.tuvell@gmail.com> Sent:Thursday, February 25, 2021 2:12 PM To:OpenMeeting (AGO); Reading - Selectboard Subject:Opinion vs. Fact Attachments:SackOnDefamation,5th=Chap4,Opinion.pdf To AGO & others — I'm still waiting for you to respond (substantively, as opposed to hand-waving) to my Emails 1–13 at https://readingma.us/comment/205#comment-205. (This is Email14.) Here, I add more argumentation, regarding the key point of contention: "opinion vs. fact." [I've already addressed this in Email5, where I said I didn't think we needed to beat this horse any deader, but it now appears that we do need to beat it, so here we go.] I'll repeat my charge, from the end of Email13: You are JUST PLAIN WRONG in your definition/interpretation of OML, where you write (in the document you referred me to): Here, your sentence following the highlighted one is correct, but only partially, because unfortunately/wrongly it ONLY addresses "statements of opinion," NOT "statements of fact" (and it is ONLY statements of fact that are issue in this discussion stream, where we're talking about "preparation of meeting minutes"). Your erroneous "definition" of deliberation ACTUALLY OMITS MOST OF THE DEFINITION, namely the part about "statements of fact." That is, your erroneous definition does apply (JUST PLAIN WRONGLY) to statements of fact. The real definition, with your omission restored, is this (where "no opinion" is synonymous with "fact"): As is "well-known" (at least for those who know such things well, namely, people interested in the Mass OML), that added wording about statements of fact ("no opinion") wasn't in the original OML. The "new" OML added that additional wording (among other things). [See history summary at https://www.mass.gov/doc/open-meeting-law-guide- and-educational-materials-0/download p. 25.] The current "good law" (and first impression) on our subject is Boelter v. Wayland (http://masscases.com/cases/sjc/479/479mass233.html), where the SJC directly addresses this added wording. It does so (p. 239) by turning to the dictionary for the definition of "opinion." I quote the SJC's definition below in this note, together with many more dictionary definitions (including the one used by the Boelter trial court). Additionally, I'm also including as an attachment hereto, the chapter on Opinion from Sack On Defamation. (That beats the horse very dead.) 2 Here's what the SJC says in Boelter (p. 240-242): The BALANCE here specifically refers to what I'm talking about (among other things)! Namely, it's OK to talk FACTS without triggering the OML, but it's NOT OK to talk OPINIONS! The SJC has ruled on this. You cannot (legally) contravene what the SJC has said the legislature said. Why do you continue to do so? — Walt Tuvell SOME DICTIONARY DEFINITIONS OF OPINION 3 Webster's, SJC (http://masscases.com/cases/sjc/479/479mass233.html p. 8): Webster's online (https://www.merriam-webster.com/dictionary/opinion): Random House Websters, Trial court (http://masscases.com/briefs/sjc/479/479mass233/SJC- 12353_02_Appellee_Boelter_Brief.pdf p. 24): 4 Random House Webster's Collegiate (https://www.thefreedictionary.com/opinion): Cambridge dictionary (https://dictionary.cambridge.org/us/dictionary/english/opinion): 5 6 Dictionary.com (https://www.dictionary.com/browse/opinion): Oxford (https://www.lexico.com/en/definition/opinion): 7 8 Collins (https://www.thefreedictionary.com/opinion ): Black's Law Dictionary, 9th ed. (the 3rd definition; the first two deal with technical/legal "opinions" in the sense of writings by judges/lawyers/experts, which are also dealt with in some of the preceding definitions): Chapter 4 Opinion § 4:1 Overview § 4:2 Historical Review § 4:2.1 Introduction § 4:2.2 Common-Law Roots § 4:2.3 Opinion in the Wake of Gertz [A]Gertz and Its Aftermath [B] Differentiating Fact from Opinion After Gertz § 4:2.4 Milkovich and After [A]Milkovich Decision [B] Protection for Opinion Post-Milkovich [C] Open Issues [D] Massachusetts, New Jersey, New York, Ohio, Oklahoma, Utah, and Washington § 4:3 Analysis § 4:3.1 Custom and Context [A] Generally [B] Political Expression [C] Criticism [D] The Internet [E] Academic Debate § 4:3.2 Relationship Between Opinion and Underlying Facts § 4:3.3 Epithet and Rhetorical Hyperbole As Nonactionable § 4:3.4 Expression of Opinion Not Genuinely Held § 4:3.5 Statements Held to Be Nonactionable § 4:3.6 Statements Held to Contain Allegations of Fact § 4:3.7 Judge and Jury § 4:3.8 Advertising and Commercial Speech § 4:3.9 Appellate Review § 4:4 Common-Law Fair-Comment Privilege § 4:4.1 Generally § 4:4.2 Underlying Facts, Stated and Unstated § 4:4.3 Protection for Misstatement of Underlying Facts § 4:4.4 Persons Subject to Fair Comment 4 –1(Sack, 5th ed., 4/17) § 4:4.5 Scope of Privilege § 4:4.6 Defeasance of Privilege § 4:5 Opinion and Other Speech Respecting Religion We can never be sure that the opinion we are endeavoring to stifle is a false opinion; and if we were sure, stifling it would be an evil still.1 Any nation which counts the Scopes trial as part of its heritage cannot so readily expose ideas to sanctions on a jury finding of falsity.2 § 4:1 Overview 3 It is second nature for a person who reads or hears a statement to try to determine, on the basis of the language used and surrounding circumstances, whether it is meant to be objective or subjective— whether the statement is intended to assert information about people, things, and events, on the one hand, or the speaker ’s attitude toward people, things, and events, on the other. 4 He or she is deciding whether to treat the statement as an assertion of fact or a declaration of opinion. Listeners and readers also try to decide whether and to what extent communications should be taken literally. Does “My partner is rob- bing me blind”indicate disagreement with the fairness of the alloca- tion of partnership profits, or require a telephone call to the district 1.J.S. MILL, ON LIBERTY, ch. 2. 2.Time, Inc. v. Hill, 385 U.S. 374, 406 (1967) (Harlan, J., concurring in part, dissenting in part). 3.The author ’s views on the subject are set out at some length in Robert D. Sack,Protection of Opinion Under the First Amendment: Reflections on Alfred Hill, Defamation and Privacy Under the First Amendment, 100 COLUM. L. REV. 294 (2000). 4.Cf. W. LIPPMAN, PUBLIC OPINION 18 (MacMillan paperback ed. 1965) (“Those features of the world outside which have to do with the behavior of other human beings, in so far as that behavior crosses ours, is dependent upon us, or is interesting to us, we call roughly public affairs. The pictures inside the heads of these human beings, the pictures of themselves, of others, of their needs, purposes, and relationship, are their public opinions.”). § 4:1 SACK ON DEFAMATION 4 –2 attorney? Does “This city is a jungle”mean that people in this city are particularly cruel, that the speaker has had a bad day, or that it is wise to take a snakebite kit on the next foray for lunch? The law of defamation takes this search for meaning and differentiation between fact and opinion from the living room into the courtroom. There the inquiry tends to become artificial and difficult. An easy consensus holds that in some way and to some extent expressions of opinion must be protected from the legal process. The reasons are manifold. They include the need to protect the individual value of free self-expression—“the freedom to speak one’s mind . . . [as] an aspect of individual liberty—and thus a good unto itself,”5 and the societal and political value of public debate—“the common quest for truth and the vitality of society as a whole.”6 It is significant that the guarantee of freedom of speech and press falls between the religious guarantees and the guarantee of the right to petition for redress of grievances in the text of the First Amendment. . . . It partakes of the nature of both, for it is as much a guarantee to individuals of their personal right to make their thoughts public and put them before the community . . . as it is a social necessity required for the “maintenance of our political system and an open society.”7 The reasons also include the perception that a statement of opinion tends to inflict less damage to reputation where the underlying facts are also stated, enabling the assertion of opinion to be rebutted; 8 that such an assertion typically reflects on the speaker as much as the person spoken about; 9 and that the courts should not and cannot be in the business of restraining every epithet-shouter and loudmouth, even if his or her words inflict some measure of harm. 10 And yet, a thoughtless or cruel statement of opinion can severely injure reputa- tion. A spiteful review in the New York Times Book Review can hurt 5.Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 503, 10 Media L. Rep. (BNA) 1625 (1984). 6.Id., 466 U.S. at 503–04. 7.Curtis Publ’g Co. v. Butts, 388 U.S. 130, 149 (1967) (opinion of Harlan, J.) (citation omitted). For a thorough survey of theories underlying protection for freedom of expression, see Kent Greenawalt,Free Speech Justifications, 89 COLUM. L. REV. 119 (1989). 8.See section 4:3.2,infra. 9.See section 2:4.7,supra.A statement correctly understood to be an opinion can be said to be “true”in the sense that it is an accurate portrayal of the attitude of the speaker. This is the corollary to the notion that expression of a stated opinion not genuinely held by the speaker may be said to be false.See section 4:3.5,infra. 10.See section 2:4.7,supra. § 4:1Opinion 4 –3(Sack, 5th ed., 4/17) the reputation of both the reviewed work and its author even though it is not objectively, demonstrably false. 11 No task undertaken under the law of defamation is more elusive than distinguishing between fact and opinion. 12 Analysis is complicated because communications com- monly consist of intertwined allegations of fact and opinion: state- ments that are ostensibly opinion imply allegations of fact, and statements that are ostensibly of fact turn out, upon examination, to be opinion. 13 Indeed, we suspect that there is some opinion in any assertion of fact, and some factual content in every statement of opinion.14 It is not surprising, then, that courts have had difficulty in deciding how to identify opinion and in determining the scope of its protection. 11.Cf. Moldea v. N.Y. Times Co., 22 F.3d 310, 22 Media L. Rep. (BNA) 1673 (D.C. Cir.),cert. denied, 513 U.S. 875 (1994). 12.Goldwater v. Ginzburg, 261 F. Supp. 784, 786 (S.D.N.Y. 1966),aff ’d, 414 F.2d 324 (2d Cir. 1969),cert. denied, 396 U.S. 1049 (1970) (quoting PROSSER ON TORTS (3d ed. 1964), to the effect that the distinction “has proved to be a most unsatisfactory and unreliable one, difficult to draw in practice”);cf. MCCORMICK ON EVIDENCE § 11, at 23 (2d ed. 1972) (emphasis added): This classic formula, based as it is on the assumption that “fact” and “opinion”stand in contrast and hence are readily distinguish- able, has proven the clumsiest of all the tools furnished the judge for regulating the examination of witnesses.It is clumsy because its basic assumption is an illusion. See generally Franklin & Bussel,The Plaintiff ’s Burden in Defamation: Awareness and Falsity, 25 WM. & MARY L. REV. 825, 869–71 (1984).But cf. A.S. Abell Co. v. Kirby, 227 Md. 267, 176 A.2d 340, 343, 90 A.L.R.2d 1264 (1961) (distinction is “theoretically and logically hard to draw ”but “usually reasonably determinable as a practical matter ”). Because of the difficulty in distinguishing between fact and opinion, it has long been common for a defendant to make a “rolled-up plea”to the effect that insofar as the complained-of statement is factual it is true, and insofar as it is opinion, it is either “fair,”not provably false, or otherwise protected.See PETER F. CARTER-RUCK & HARVEY STARTE, CARTER-RUCK ON LIBEL AND SLANDER 112–13 (5th ed. 1997); J. CARTER & A. HUGHES, DEFAMATION ACTIONS 33 (PLI 1963). 13.See section 4:3.2,infra. 14.See Stevens v. Tillman, 855 F.2d 394, 398 (7th Cir. 1988). The most factual of statements, an eyewitness account of a crime, for example, is no more than an assertion that the person who was there believes he or she saw something. Even honest eyewitness accounts are notoriously unreli- able.See generally E. LOFTUS & J. DOYLE, EYEWITNESS TESTIMONY/CIVIL & CRIMINAL (2d ed. 1992). And an opinion so pure that it contains no factual implications is rare, if not unimaginable. § 4:1 SACK ON DEFAMATION 4 –4 § 4:2 Historical Review § 4:2.1 Introduction An understanding of the doctrine governing the treatment of opinion by the law of defamation requires recapitulation of its history, falling roughly into three stages: common-law “fair comment,”largely prior to 1974; protection between 1974 and 1990 based on language in the Supreme Court’s opinion in Gertz v. Robert Welch, Inc.;15 and treatment arising out of the Court’s 1990 opinion in Milkovich v. Lorain Journal Co. 16 § 4:2.2 Common-Law Roots 17 In developing the common law of defamation, courts exhibited some sensitivity to the dangers of the law ’s impingement on freedom of expression long before the Supreme Court began to erect First Amendment safeguards in the area. 18 In the arena of debate and criticism about public issues, this consideration gave rise to protection for opinion usually referred to as the privilege of “fair comment.”19 The purpose served by the privilege was essentially the same as that which later motivated the Court: to ensure that “debate on public issues [will be] uninhibited, robust and wide-open.”20 15.Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). 16.Milkovich v. Lorain Journal Co., 497 U.S. 1, 17 Media L. Rep. (BNA) 2009 (1990). 17.State and federal constitutional protection has its roots in the common- law fair-comment privilege.See, e.g., West v. Thomson Newspapers, 872 P.2d 999 (Utah 1994). Because the common-law privilege is largely vestigial, however, separate discussion of common-law protection is post- poned to later in this chapter.See section 4:4,infra. 18.See generally Sweeney v. Patterson, 128 F.2d 457 (D.C. Cir.),cert. denied, 317 U.S. 678 (1942); Layne v. Tribune Co., 108 Fla. 177, 146 So. 234, 86 A.L.R. 466 (1933); Parmelee v. Hearst Publ’g Co., 341 Ill. App. 339, 347–48, 93 N.E.2d 512, 515 (1950); Cherry v. Des Moines Leader, 114 Iowa 298, 86 N.W. 323 (1901); Coleman v. MacLennan, 78 Kan. 711, 98 P. 281 (1908); and cases cited in N.Y. Times Co. v. Sullivan, 376 U.S. 254, 280 n.20 (1964). 19.See Hill,Defamation and Privacy Under the First Amendment, 76 COLUM. L. REV. 1205, 1227–36 (1976); section 4:4,infra. 20.N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).See, e.g., Pearson v. Fairbanks Publ’g Co., 413 P.2d 711, 714 (Alaska 1966) (“freedom of discussion and debate on public issues”); Edmonds v. Delta Democrat Publ’g Co., 230 Miss. 583, 591, 93 So. 2d 171, 173 (1957) (that “matters of a public nature may be freely discussed”); Julian v. Am. Bus. Consul- tants, Inc., 2 N.Y.2d 1, 7, 137 N.E.2d 1, 5, 155 N.Y.S.2d 1, 7 (1956) (“in furtherance of . . . the right to write freely ”);see also Keeton,Defamation and Freedom of the Press, 54 TEX. L. REV. 1221, 1222–23 (1976). § 4:2.2Opinion 4 –5(Sack, 5th ed., 4/17) “Fair comment”was inadequate. The scope of the common-law privilege was uncertain, and there was substantial diversity in the rationales for it. While the common-law fair-comment tradition has been termed “rich and complex,”21 that very richness and com- plexity rendered its protection uncertain. Under the fair-comment privilege, a decision to state an opinion safely required, first, a prediction by the would-be speaker as to which state’s law would govern any ensuing litigation, since the law differs markedly from jurisdiction to jurisdiction. 22 He or she would then be required to guess whether a court would consider the utterance indeed to be an opinion rather than an assertion of fact, 23 and how a jury would answer vague and subjective questions such as whether the views were the speaker ’s “actual opinion”or were “excessively vituperative”or “unfair.”24 The hazard increased dramatically as technology projected publish- ing and broadcasting into multiple jurisdictions. Speakers were subject to the constant threat of large libel judgments resting on the findings of often-hostile local juries whose views were based on subjective and ephemeral conclusions on issues such as whether the criticism was “unreasonable.”25 The fractionated common-law approach was un- equal to the task of protecting “the freedom to speak one’s mind.” Underlying the privilege was a desire to protect “intuitive, evalua- tive statements that could not be proved either true or false by the rigorous deductive reasoning of the judicial process.” Moldea v. N.Y. Times Co., 15 F.3d 1137, 1153, 22 Media L. Rep. (BNA) 1321 (Mikva, J., dissenting) (quoting Franklin & Bussel,The Plaintiff ’s Burden in Defamation: Awareness and Falsity, 25 WM. & MARY L. REV. 825, 871 (1984)),modified on reh’g, 22 F.3d 310, 22 Media L. Rep. (BNA) 1673 (D.C. Cir.),cert. denied, 513 U.S. 875 (1994). 21.See, e.g., Ollman v. Evans, 471 U.S. 1127, 1129, 11 Media L. Rep. (BNA) 2015 (1985) (Rehnquist, J., dissenting from denial of certiorari) (quoting Hill,Defamation and Privacy Under the First Amendment, 76 COLUM. L. REV. 1205, 1239 (1976)). 22.See section 4:4,infra. 23.The common law, like the predominant view post-Gertz that all opinion was constitutionally immune, required in the first instance a decision as to whether the statement was fact or opinion, since fair-comment doctrine was largely limited to protection of comment, or opinion, and ordinarily did not protect false statements of fact.But cf. section 4:4.3,infra. 24.See section 4:4.6,infra. 25.With respect to wire copy or syndicated material, an aggrieved person could bring separate actions against republishers in many jurisdictions, each applying its own common-law standards.See, e.g., Note,Fact and Opinion After Gertz v. Robert Welch, Inc.: The Evolution of a Privilege, 34 RUTGERS L. REV. 81, 87–88 (1981), describing a series of suits brought by a Congressman against newspapers carrying a syndicated column that § 4:2.2 SACK ON DEFAMATION 4 –6 § 4:2.3 Opinion in the Wake of Gertz [A]Gertz and Its Aftermath In 1974, against this legal landscape, the Supreme Court observed at the outset of its opinion in Gertz: We begin with the common ground. Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.26 This principle, together with the implication in Gertz that only a falsehood can be defamatory, 27 seemed to lead to a simple but powerful syllogism: A defamation is actionable only if it is false; 28 opinions cannot be proved false; therefore, opinions can never be actionable, no matter how derogatory they may be. The Gertz statement has often been referred to as a dictum 29 because the Court was not deciding an opinion case. Whatever its force as precedent, though, the observation had a deep, virtually instanta- neous impact on the law of defamation. allegedly accused him of anti-Semitic behavior. Most of the courts held the column to be non-libelous; one held it to be actionable and unprotected by the fair-comment doctrine. Sweeney v. Schenectady Union Publ’g Co., 122 F.2d 288 (2d Cir. 1941),aff ’d, 316 U.S. 642 (1942);cf. Walker v. Associated Press, 388 U.S. 130 (1967). The Associated Press dispatch in Walker resulted in at least fifteen different lawsuits by the plaintiff against various defendants throughout the United States. Walker v. Pulitzer Publ’g Co., 394 F.2d 800, 806–07 (8th Cir. 1968) (collecting cases). 26.Gertz v. Robert Welch, Inc., 418 U.S. 323, 339–40 (1974). 27.The Court has not held that a truthful statement can never be the basis for any defamation suit.See section 3:3.2[A],supra. 28.“An assertion that cannot be proved false cannot be held libellous.” Hotchner v. Castillo-Puche, 551 F.2d 910, 913, 2 Media L. Rep. (BNA) 1545 (2d Cir.),cert. denied, 434 U.S. 834, 3 Media L. Rep. (BNA) 1128 (1977). 29.See, e.g., Keller v. Miami Herald Publ’g Co., 778 F.2d 711, 715 n.11, 12 Media L. Rep. (BNA) 1561 (11th Cir. 1985); Ollman v. Evans, 750 F.2d 970, 974 n.6, 11 Media L. Rep. (BNA) 1433 (D.C. Cir. 1984) (en banc), cert. denied, 471 U.S. 1127, 11 Media L. Rep. (BNA) 2015 (1985); Immuno A.G. v. Moor-Jankowski, 74 N.Y.2d 548, 556, 549 N.E.2d 129, 132, 549 N.Y.S.2d 938, 941, 17 Media L. Rep. (BNA) 1161 (1989). On the day the Court rendered its opinion in Gertz, it also decided Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S. 264 (1974). The Court held that the use of vigorous epithets in the context of a labor dispute could not support a defamation judgment, basing its holding, at least in part, on the Gertz principle that “there is no such thing as a false idea.”Id. at 284. The epithets were opinion, as such unprovable, and therefore nonactionable. Although the Gertz language when stated was a dictum, it was arguably treated as authoritative by the Court on the same day it was first uttered. § 4:2.3Opinion 4 –7(Sack, 5th ed., 4/17) At the time Gertz was decided, the American Law Institute was considering a revision of the Restatement of Torts. 30 When it issued the second Restatement, three years after Gertz, the Institute relied on the Court’s language in Gertz as a basis for abandoning the common- law defense of fair comment reflected in the 1938 version of the Restatement.“The common law rule that an expression of opinion of the . . . pure type may be the basis of an action for defamation now appears to have been rendered unconstitutional by U.S. Supreme Court decisions.”31 The notion that opinion might be entitled to constitutional protec- tion had been around for some time. 32 Yet, after Gertz and the Restatement, jurisdiction by jurisdiction, an avalanche followed: Court after court employed the Gertz language as a mandate for a constitutionally based rule providing immunity for all expressions of opinion. Simultaneously, the common-law fair-comment privilege was all but abandoned. Some courts explicitly held that Gertz hadrendered the fair-comment privilege obsolete. 33 Some implied as much by referring to the fair-comment privilege but then deciding the case solely on the basis 30.See, e.g., Note,Fact and Opinion After Gertz v. Robert Welch, Inc.: The Evolution of a Privilege, 34 RUTGERS L. REV. 81, 97–99 (1981). 31.RESTATEMENT (SECOND)OF TORTS, § 566 cmt. c (1977).“Pure”opinions are those that “do not imply facts capable of being proved true or false.”Id.; accord Fuste v. Riverside Healthcare Ass’n, Inc., 265 Va. 127, 133, 575 S.E.2d 858, 862 (2003). 32.See, e.g., Cherry v. Des Moines Leader, 114 Iowa 298, 86 N.W. 323 (1901). The Supreme Court of Iowa considered a review of a musical routine by the Cherry Sisters:“Their long skinny arms, equipped with talons at the extremities, swung mechanically, and anon waved frantically at the suffering audience. The mouths of their rancid features opened like caverns, and sounds like the wailings of damned souls issued therefrom.” The court held the review protected as fair comment:“There is a manifest distinction between matters of fact and comment on or criticism of undisputed facts or conduct.Unless this be true, liberty of speech and of the press guaranteed by the constitution is nothing more than a name.”Id., 86 N.W. at 325. For a helpful, entertaining discussion of the Cherry Sisters case, see Gartner,Fair Comment, AM. HERITAGE, Oct. 1982, at 28–31. Cherry has been cited as good authority as recently as 2014. Bertrand v. Mullin,846N.W.2d884,893n.2,42MediaL.Rep.(BNA)1940(Iowa2014). 33.Koch v. Goldway, 817 F.2d 507, 509, 14 Media L. Rep. (BNA) 1213 (9th Cir. 1987); Yerkie v. Post-Newsweek Stations, 470 F. Supp. 91, 94, 4 Media L. Rep. (BNA) 2566 (D. Md. 1979); Hofmann Co. v. E.I. Du Pont de Nemours & Co., 202 Cal. App. 3d 390, 407 n.10, 248 Cal. Rptr. 384, 395 n.10 (1988); Mittelman v. Witous, 135 Ill. 2d 220, 142 Ill. Dec. 232, 552 N.E.2d 973, 982 (1989); Ferguson v. Watkins, 448 So. 2d 271, 278 (Miss. 1984); Nev. Indep. Broad. Corp. v. Allen, 99 Nev.404, 413 n.6, 664 P.2d 337, 343 n.6, 37 A.L.R.4th 1070, 9 Media L. Rep. (BNA) 1769 (1983); Kotlikoff v. Cmty. News, 89 N.J. 62, 65, 444 A.2d 1086, 1087, 8 Media L. Rep. (BNA) 1549 (1982); Marchiondo v. N.M. State Tribune Co., 98 N.M. § 4:2.3 SACK ON DEFAMATION 4 –8 of the Constitution. 34 Others considered the constitutional privilege first and then declared that the constitutional analysis had rendered superfluous any consideration of the defendant’s claim of fair com- ment.35 In the words of one court that considered the fair-comment defense before deciding the case on constitutional grounds,“Much of what we find it necessary to write in this opinion may be likened unto deciding whether or not a base runner touched third when it is clear that he was thrown out at home plate.”36 282, 295, 648 P.2d 321, 334 (Ct. App. 1981); Ryan v. Herald Ass’n, Inc., 152 Vt. 275, 566 A.2d 1316, 1321–22, 16 Media L. Rep. (BNA) 2472 (1989);cf. Pearce v. E.F. Hutton Grp., Inc., 664 F. Supp. 1490, 1503 (D.D.C. 1987) (“obsolete in light of broader First Amendment protections”). 34.Potomac Valve & Fitting, Inc. v. Crawford Fitting Co., 829 F.2d 1280, 1285 n.13 (4th Cir. 1987); Action Repair, Inc. v. Am. Broad. Cos., 776 F.2d 143, 146–47, 12 Media L. Rep. (BNA) 1398 (7th Cir. 1985); Ollman v. Evans, 750 F.2d 970, 975, 11 Media L. Rep. (BNA) 1433 (D.C. Cir. 1984) (en banc),cert. denied, 471 U.S. 1127, 11 Media L. Rep. (BNA) 2015 (1985); Orr v. Argus-Press Co., 586 F.2d 1108, 1114, 4 Media L. Rep. (BNA) 1593 (6th Cir. 1978),cert. denied, 440 U.S. 960, 4 Media L. Rep. (BNA) 2536 (1979); Amcor Inv. Corp. v. Cox Ariz. Publ’ns, Inc., 158 Ariz. 566, 764 P.2d 327, 330, 16 Media L. Rep. (BNA) 1059 (Ct. App. 1988); Henderson v. Times Mirror Co., 669 F. Supp. 356, 358–59, 14 Media L. Rep. (BNA) 1659 (D. Colo. 1987),aff ’d, 876 F.2d 108 (10th Cir. 1989); From v. Tallahassee Democrat, Inc., 400 So. 2d 52, 54, 57, 7 Media L. Rep. (BNA) 1811 (Fla. Dist. Ct. App. 1981),petition denied, 412 So. 2d 465 (Fla. 1982); Henry v. Halliburton, 690 S.W.2d 775, 780–83, 11 Media L. Rep. (BNA) 2185 (Mo. 1985); Immuno A.G. v. Moor-Jankowski, 74 N.Y.2d 548, 555–56, 549 N.E.2d 129, 132, 549 N.Y.S.2d 938, 941, 17 Media L. Rep. (BNA) 1161 (1989). 35.Hoffman v. Wash. Post Co., 433 F. Supp. 600, 603, 3 Media L. Rep. (BNA) 1143 (D.D.C. 1977),aff ’d without opinion, 578 F.2d 442, 3 Media L. Rep. (BNA) 2546 (D.C. Cir. 1978); Mashburn v. Collin, 355 So. 2d 879, 886, 3 Media L. Rep. (BNA) 1673 (La. 1977); Camer v. Seattle Post-Intelligencer, 45 Wash. App. 29, 41 n.3, 723 P.2d 1195, 1202 n.3, 13 Media L. Rep. (BNA) 1481 (1986),cert. denied, 482 U.S. 916 (1987). In the later words of a federal district court judge in the District of Columbia:“[D]efamation is inextricably linked with First Amendment concerns. For that reason, courts frequently examine the constitutional implications of libel actions at the summary judgment stage.”Lane v. Random House, Inc., 985 F. Supp. 141, 149, 23 Media L. Rep. (BNA) 1385 (D.D.C. 1995) (citing cases). 36.Brewer v. Memphis Publ’g Co., 626 F.2d 1238, 1241–42, n.4, 6 Media L. Rep. (BNA) 2025 (5th Cir. 1980),cert. denied, 452 U.S. 962 (1981).But cf. West v. Thomson Newspapers, 872 P.2d 999, 1004 (Utah 1994) (carefully reasoned explanation of the value of treating state common-law and constitutional protections first);see also Wolston v. Reader ’s Digest Ass’n, 443 U.S. 157, 160 n.2, 5 Media L. Rep. (BNA) 1273 (1979) (“dispositive issues of statutory and local law are to be treated before reaching constitutional issues”). § 4:2.3Opinion 4 –9(Sack, 5th ed., 4/17) By 1990, every federal circuit 37 and the courts of at least thirty-six states and the District of Columbia 38 had held that opinion is 37.FIRST CIRCUIT: Fudge v. Penthouse Int’l, Ltd., 840 F.2d 1012, 14 Media L. Rep. (BNA) 2353 (1st Cir.),cert. denied, 488 U.S. 821 (1988);SECOND CIRCUIT: Mr. Chow v. Ste. Jour Azur S.A., 759 F.2d 219, 11 Media L. Rep. (BNA) 1713 (2d Cir. 1985);THIRD CIRCUIT: Jenkins v. KYW, Div. of Grp. W, Westinghouse Broad. & Cable, Inc., 829 F.2d 403, 14 Media L. Rep. (BNA) 1718 (3d Cir. 1987);FOURTH CIRCUIT: Potomac Valve & Fitting, Inc. v. Crawford Fitting Co., 829 F.2d 1280 (4th Cir. 1987);FIFTH CIRCUIT: Lindsey v. Bd. of Regents, 607 F.2d 672 (5th Cir. 1979);SIXTH CIRCUIT: Falls v. Sporting News Publ’g Co., 834 F.2d 611 (6th Cir. 1987); SEVENTH CIRCUIT: Woods v. Evansville Press Co., 791 F.2d 480, 12 Media L. Rep. (BNA) 2179 (7th Cir. 1986);EIGHTH CIRCUIT: Secrist v. Harkin, 874 F.2d 1244 (8th Cir.),cert. denied, 493 U.S. 933 (1989); NINTH CIRCUIT: Ault v. Hustler Magazine, Inc., 860 F.2d 877, 15 Media L. Rep. (BNA) 2205 (9th Cir. 1988),cert. denied, 489 U.S. 1080 (1989); TENTH CIRCUIT: Rinsley v. Brandt, 700 F.2d 1304, 9 Media L. Rep. (BNA) 1225 (10th Cir. 1983) (false-light action);ELEVENTH CIRCUIT: Keller v. Miami Herald Publ’g Co., 778 F.2d 711, 12 Media L. Rep. (BNA) 1561 (11th Cir. 1985) (Fla. law);D.C. CIRCUIT: Ollman v. Evans, 750 F.2d 970, 11 Media L. Rep. (BNA) 1433 (D.C. Cir. 1984) (en banc),cert. denied, 471 U.S. 1127, 11 Media L. Rep. (BNA) 2015 (1985). 38.ALASKA: Moffatt v. Brown, 751 P.2d 939, 15 Media L. Rep. (BNA) 1601 (Alaska 1988);ARIZONA: MacConnell v. Mitten, 131 Ariz. 22, 638 P.2d 689 (1981);CALIFORNIA: Baker v. L.A. Herald Examiner, 42 Cal. 3d 254, 721 P.2d 87, 228 Cal. Rptr. 206, 13 Media L. Rep. (BNA) 1159 (1986),cert. denied, 479 U.S. 1032 (1987);COLORADO: Bucher v. Roberts, 198 Colo. 1, 595 P.2d 239 (1979);CONNECTICUT: Goodrich v. Waterbury Republican-Am., Inc., 188 Conn. 107, 448 A.2d 1317, 8 Media L. Rep. (BNA) 2329 (1982);DELAWARE: Riley v. Moyed, 529 A.2d 248, 14 Media L. Rep. (BNA) 1379 (Del. 1987);DISTRICT OF COLUMBIA: Myers v. Plan Takoma, Inc., 472 A.2d 44 (D.C. 1983);FLORIDA: Palm Beach Newspapers, Inc. v. Early, 334 So. 2d 50 (Fla. Dist. Ct. App. 1976),petition denied, 354 So. 2d 351 (Fla. 1977),cert. denied, 439 U.S. 910 (1978); GEORGIA: S&W Seafoods Co. v. Jacor Broad., 194 Ga. App. 233, 390 S.E.2d 228, 17 Media L. Rep. (BNA) 1340 (1989);ILLINOIS: Mittelman v. Witous, 135 Ill. 2d 220, 142 Ill. Dec. 232, 552 N.E.2d 973 (1989); INDIANA: Jamerson v. Anderson Newspapers, Inc., 469 N.E.2d 1243 (Ind. Ct. App. 1984);KENTUCKY: Yancey v. Hamilton, 786 S.W.2d 854, 17 Media L. Rep. (BNA) 1012 (Ky. 1989);LOUISIANA: Mashburn v. Collin, 355 So. 2d 879, 3 Media L. Rep. (BNA) 1673 (La. 1977);MAINE: True v. Ladner, 513 A.2d 257 (Me. 1986);MARYLAND: Kapiloff v. Dunn, 27 Md. App. 514, 343 A.2d 251 (1975),cert. denied, 426 U.S. 907 (1976) (recognizing a constitutionally based fair-comment privilege);MASSA- CHUSETTS: Friedman v. Boston Broads., Inc., 402 Mass. 376, 522 N.E.2d 959 (1988);MICHIGAN: Hodgins v. Times Herald Co., 169 Mich. App. 245, 425 N.W.2d 522, 15 Media L. Rep. (BNA) 1777 (1988); MINNESOTA: Gernander v. Winona State Univ., 428 N.W.2d 473 (Minn. Ct. App. 1988);MISSISSIPPI: Meridian Star, Inc. v. Williams, 549 So. 2d 1332, 16 Media L. Rep. (BNA) 2446 (Miss. 1989);MISSOURI: Henry v. Halliburton, 690 S.W.2d 775, 11 Media L. Rep. (BNA) 2185 (Mo. 1985); MONTANA: Frigon v. Morrison-Maierle, Inc., 233 Mont. 113, 760 P.2d § 4:2.3 SACK ON DEFAMATION 4 –10 constitutionally protected because, according to Gertz,“[u]nder the First Amendment there is no such thing as a false idea.” [B] Differentiating Fact from Opinion After Gertz The post-Gertz cases left courts with a single though by no means easy39 task: deciding what was an assertion of fact, and therefore potentially actionable, rather than an opinion, which was necessarily protected. They constructed a variety of tests to assist in doing so. The most comprehensive and widely used was articulated by the District of Columbia Circuit in Ollman v. Evans.40 After referring to 57 (1988);NEBRASKA: Turner v. Welliver, 226 Neb. 275, 411 N.W.2d 298 (1987);NEVADA: Nev. Indep. Broad. Corp. v. Allen, 99 Nev. 404, 664 P.2d 337, 37 A.L.R.4TH 1070, 9 Media L. Rep. (BNA) 1769 (1983);NEW HAMPSHIRE: Nash v. Keene Publ’g Corp., 127 N.H. 214, 498 A.2d 348, 12 Media L. Rep. (BNA) 1025 (1985);NEW JERSEY: Kotlikoff v. Cmty. News, 89 N.J. 62, 444 A.2d 1086, 8 Media L. Rep. (BNA) 1549 (1982); NEW MEXICO: Marchiondo v. Brown, 98 N.M. 394, 649 P.2d 462, 8 Media L. Rep. (BNA) 2233 (1982);NEW YORK: Immuno A.G. v. Moor- Jankowski, 74 N.Y.2d 548, 549 N.E.2d 129, 549 N.Y.S.2d 938, 17 Media L. Rep. (BNA) 1161 (1989);OHIO: Scott v. News-Herald, 25 Ohio St. 3d 243, 496 N.E.2d 699, 25 Ohio B. 302, 13 Media L. Rep. (BNA) 1241 (1986);OKLAHOMA: Miskovsky v. Tulsa Tribune Co., 678 P.2d 242, 9 Media L. Rep. (BNA) 1954 (Okla. 1983),cert. denied, 465 U.S. 1006 (1984);OREGON: Haas v. Painter, 62 Or. App. 719, 662 P.2d 768, 9 Media L. Rep. (BNA) 1665,review denied, 295 Or. 297, 668 P.2d 381 (1983) (finding constitutional protection for opinion about public officials); RHODE ISLAND: Healey v. New Eng. Newspapers, Inc., 520 A.2d 147, 13 Media L. Rep. (BNA) 2148 (R.I. 1987);SOUTH DAKOTA: Finck v. City of Tea, 443 N.W.2d 632 (S.D. 1989);TENNESSEE: Stones River Motors, Inc. v. Mid-South Publ’g Co., 651 S.W.2d 713 (Tenn. Ct. App. 1983); TEXAS: El Paso Times, Inc. v. Kerr, 706 S.W.2d 797, 13 Media L. Rep. (BNA) 1049 (Tex. App. 1986),cert. denied, 480 U.S. 932 (1987); VERMONT: Ryan v. Herald Ass’n, Inc., 152 Vt. 275, 566 A.2d 1316, 16 Media L. Rep. (BNA) 2472 (1989);VIRGINIA: Chaves v. Johnson, 230 Va. 112, 335 S.E.2d 97 (1985);WEST VIRGINIA: Havalunch, Inc. v. Mazza, 294 S.E.2d 70 (W. Va. 1981). Cases in other states indicated that those states would likely have held that opinion was constitutionally protected. See, e.g.,ARKANSAS: Bland v. Verser, 299 Ark. 490, 774 S.W.2d 124 (1989) (finding that statements were factual, not constitutionally protected opinion);IOWA: Kiesau v. Bantz, 686 N.W.2d 164, 177 (Iowa 2004) (stating in dictum that opinion is constitutionally protected under the First Amendment without reference to Milkovich; citing pre-Milkovich case Jones v. Palmer Commc’ns, Inc., 440 N.W.2d 884, 891, 16 Media L. Rep. (BNA) 2137 (Iowa 1989));NORTH CAROLINA: Renwick v. News & Observer Publ’g Co., 63 N.C. App. 200, 304 S.E.2d 593 (1983),rev’d on other grounds, 310 N.C. 312, 312 S.E.2d 405, 57 A.L.R.4th 1, 10 Media L. Rep. (BNA) 1443,cert. denied, 469 U.S. 858 (1984). 39.See note 12,supra. 40.Ollman v. Evans, 750 F.2d 970, 979, 11 Media L. Rep. (BNA) 1433 (D.C. Cir. 1984) (en banc),cert. denied, 471 U.S. 1127, 11 Media L. Rep. (BNA) 2015 (1985). § 4:2.3Opinion 4 –11(Sack, 5th ed., 4/17) previous attempts to fashion such tests, 41 the court proffered and applied these criteria: first,“the common usage or meaning of the specific language of the challenged statement itself ”; second, the “verifiability ”of the alleged defamation; third,“the full context of the statement—the entire article or column, for example—inasmuch as other, unchallenged language surrounding the allegedly defamatory statement will influence the average reader ’s readiness to infer that a particular statement has factual content”; and fourth,“the broader context or setting in which the statement appears. Different types of writing have . . . widely varying social conventions which signal to the reader the likelihood of a statement being either fact or opinion.”42 Courts struggled, case by case, to apply those and similar 43 analytical devices. 41.In Info. Control Corp. v. Genesis One Comput. Corp., 611 F.2d 781, 784 (9th Cir. 1980), for example, the court employed three criteria: the words understanding in context, the circumstances under which they were uttered, and the phrasing of the statement—is it phrased, for example, “‘in terms of apparency.’”See Ollman, 750 F.2d at 977 n.12. 42.Id. at 979. 43.See, e.g., Scholz v. Boston Herald, Inc., 473 Mass. 242, 250–51, 41 N.E.3d 38, 46, 43 Media L. Rep. (BNA) 3172 (2015) (“Factors to be considered include ‘the specific language used’;‘whether the statement is verifiable’; ‘the general context of the statement’; and ‘the broader context in which the statement appeared.’”) (citations omitted); Underwager v. Channel 9 Austl., 69 F.3d 361, 366, 24 Media L. Rep. (BNA) 1039 (9th Cir. 1995) (“First, we look at the statement in its broad context, which includes the general tenor of the entire work, the subject of the statements, the setting, and the format of the work. Next we turn to the specific context and content of the statements, analyzing the extent of figurative or hyperbolic language used and the reasonable expectations of the audience in that particular situation. Finally, we inquire whether the statement itself is sufficiently factual to be susceptible of being proved true or false.”); Janklow v. Newsweek, Inc., 788 F.2d 1300, 1302–03, 12 Media L. Rep. (BNA) 1961 (8th Cir.) (analysis based on (1) the statement’s precision and specificity, (2) the statement’s verifiability, (3) the social and literary context in which the statement is made, and (4) the statement’s social context),cert. denied, 479 U.S. 883 (1986); Keohane v. Stewart, 882 P.2d 1293, 22 Media L. Rep. (BNA) 2545 (Colo. 1994) ((1) is statement susceptible of being proved true or false; (2) would reasonable person conclude that assertion is one of fact based on (a) how the assertion is phrased, (b) the context of the entire statement, and (c) the circumstances surrounding the assertion including the medium used and the audience), cert. denied, 513 U.S. 1127 (1995);see also Potomac Valve & Fitting, Inc. v. Crawford Fitting Co., 829 F.2d 1280 (4th Cir. 1987) (adopting a variation of Ollman test, but apparently abandoned by the circuit in Biospherics, Inc. v. Forbes, Inc., 151 F.3d 180 (4th Cir. 1998), in favor of analysis under the language of Milkovich); Flamm v. Am. Ass’n of Univ. Women, 201 F.3d 144, 28 Media L. Rep. (BNA) 1329 (2d Cir. 2000) (looking to general tenor and context of statement, although not articulating it in “parts,”to conclude that § 4:2.3 SACK ON DEFAMATION 4 –12 § 4:2.4 Milkovich and After [A]Milkovich Decision Then, in 1990, along came Milkovich.44 The Court revisited the issue of constitutional protection for opinion for the first time in the sixteen years after Gertz.45 It rejected out of hand the notion that ostensibly underlay the fifteen years of lower-court post-Gertz juris- prudence, that the Gertz dictum was “intended to create a wholesale exemption for anything that might be labeled ‘opinion.’”46 Instead of a separate and distinct First Amendment protection for “opinion,”the Milkovich Court said, there was sufficient constitution- ally based protection for opinion otherwise firmly in place: the requirement established by Hepps47 that most statements 48 must be proved false before liability may ensue, and protection afforded to various “types”of speech that “cannot ‘reasonably [be] interpreted as stating actual facts.’”49 Protection for opinion obtains, therefore, so long as the statement in question is not provably false. reference to lawyer as “ambulance chaser ”in organization’s guide to professionals was assertion of fact). 44.Milkovich v. Lorain Journal Co., 497 U.S. 1, 17 Media L. Rep. (BNA) 2009 (1990). The cases cited in note 43,supra, were decided both pre- and post- Milkovich. As explained in this section,Milkovich had very little effect on the method used for determining whether a statement was nonactionable opinion. 45.Several Justices had, in the interval, expressed their discomfort with the sweeping protection for opinion derived by lower courts from Gertz. See Ollman v. Evans, 471 U.S. 1127, 11 Media L. Rep. (BNA) 2015 (1985) (Rehnquist, J., joined by Burger, C.J., dissenting from denial of certiorari); Miskovsky v. Okla. Publ’g Co., 459 U.S. 923, 8 Media L. Rep. (BNA) 2302 (1982) (Rehnquist, J., joined by White, J., dissenting from denial of certiorari). 46.Milkovich, 497 U.S. at 18. The Court, citing Judge Friendly ’s discussion in Cianci v. New Times Publ’g Co., 639 F.2d 54, 6 Media L. Rep. (BNA) 1625 (2d Cir. 1980), equated the use of the term “opinion”in this passage in Gertz to the term “idea”—a reiteration of the “marketplace of ideas” concept from Justice Holmes’s opinion in Abrams v. United States, 250 U.S. 616 (1919). In such a marketplace, ideas can be corrected by further discussion. 47.Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 12 Media L. Rep. (BNA) 1977 (1986). 48.Statements about matters not of general public concern and, possibly, although increasingly unlikely, statements by nonmedia defendants were not covered by Hepps. See discussion of Hepps in section 3:3.2[B],supra. 49.Milkovich, 497 U.S. at 20 (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50, 14 Media L. Rep. (BNA) 2281 (1988), and citing Greenbelt Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6 (1970), and Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S. 264 (1974)). § 4:2.4Opinion 4 –13(Sack, 5th ed., 4/17) There is also protection, said the Court, under its cases protecting invective,50 for speech properly characterized as “rhetorical hyperbole,” a “vigorous epithet,” “loose, figurative”language, or “lusty and imaginative expression”—generally, speech that although literally containing assertions of fact is intended to express only points of view.51 The Court emphasized, however, that merely clothing an assertion of fact in language of opinion does not render it immune from a lawsuit for defamation. 52 Justice Brennan, in a dissent joined by Justice Marshall, noted his agreement with the Court’s approach:“[O]nly defamatory statements that are capable of being proved false are subject to liability under state libel laws.”53 But he disagreed on the application of that principle to the sports column in issue.“Read in context, the statements [to the effect that the plaintiff lied under oath about what had happened at a wrestling meet] cannot reasonably be interpreted as implying . . . an 50.Id. 51.A classic example is Weinberg v. Pollock, 19 Media L. Rep. (BNA) 1442 (Conn. Super. Ct. 1991), where the trial court dismissed a defamation claim by a woman who claimed that the epithet “bastard”directed at her son, a convicted murderer, was actionable by her as an assault on her chastity. 52.Milkovich, 497 U.S. at 19 (“‘In my opinion Jones is a liar,’can cause as much damage to reputation as the statement ‘Jones is a liar.’”). In Garrett v. Tandy Corp., 295 F.3d 94 (1st Cir. 2002), the First Circuit held that a statement by a retail store employee to the police that he “suspected”a store patron of theft was, in context, not nonactionable as a matter of law. “[B]y ‘context’we mean such factors as the identity of the speaker, the identity of the audience, the circumstances in which the statement is made, and what else is said in the course of the conversation, and a myriad of other considerations.”Id. at 104. “[S]tatements in a publications do not attain constitutional protection simply because they are sprinkled with words to the effect that something does or does not ‘appear ’to be thus and so; or because they are framed as being ‘in our opinion’or as a matter of ‘concern.’”Overstock.com, Inc. v. Gradient Analytics, Inc., 151 Cal. App. 4th 688, 703–04, 61 Cal. Rptr. 3d 29, 40–41, 35 Media L. Rep. (BNA) 2135 (2007).“[W]rapping an article around a disclaimer that the contents represented a ‘judgment’does not conclusively resolve the dispositive question—whether a reasonable fact finder could conclude that the publication declares or implies a provably false assertion of fact.”Id. at 704, 61 Cal. Rptr. 3d at 41;see also Swengler v. ITT Corp., 993 F.2d 1063, 1071 (4th Cir. 1993); Bently Reserve LP v. Papaliolios, 218 Cal. App. 4th 418, 428, 160 Cal. Rptr. 3d 423, 425–26 (2013) (where the defendant “asserted plaintiffs’activities ‘(likely) con- tributed’to the ‘deaths’of three particular tenants [of the plaintiff] . . . and to the departure of tenants in eight particular units . . .‘in very short order[,]’[h]edging his statements with the word ‘likely ’does not insulate them from examination”as to the factual nature or their falsity) (citing Milkovich); Weller v. Am. Broad. Cos., 232 Cal. App. 3d 991, 283 Cal. Rptr. 644, 649, 19 Media L. Rep. (BNA) 1161 (1991). 53.Milkovich, 497 U.S. at 23. § 4:2.4 SACK ON DEFAMATION 4 –14 assertion as fact.”54 While the majority implicitly criticized the line of cases setting out factors developed to distinguish fact from opinion under Gertz,55 Justice Brennan said that, in determining what state- ments state or imply facts and therefore may be demonstrably false, courts might use the same “indicia that lower courts have been relying on for the past decade or so to distinguish between statements of fact and statements of opinion.”56 Justice Brennan’s opinion was something of a feat of legerdemain. The three cases he cited were widely acknowledged for the principle that “opinion”was ipso facto constitutionally protected—precisely the theory that the Court in Milkovich rejected—and for proffering tests to distinguish between unprotected allegations of fact and protected statements of opinion. The opinion nonetheless transmuted these cases from authority on the no-longer-viable issue of how to tell the difference between unprotected fact and protected opinion, to author- ity for how to tell the difference between unprotected statements provably false and protected statements not provably false under Milkovich.57 Justice Brennan thus signaled that judicial treatment of opinion after Milkovich need not materially differ from such treatment before the case was decided. The subsequent treatment of opinion by the courts has borne out his views. 58 [B] Protection for Opinion Post-Milkovich To what extent do the protections cited by the Court in Milkovich continue to immunize expressions of opinion? While there was considerable public hand-wringing by the press when Milkovich was handed down, the answer was reflected in an opinion issued by a federal district judge in New York several days after Milkovich was decided:“[The protection is] considerably broader than might be imagined from a reading of popular reports of the opinion privilege’s demise.”59 For in Milkovich,the Court gave with one hand what it took away with the other: Opinion is not protected per se by the Constitu- tion, yet because opinion can be proved neither true nor false and 54.Id. at 28. 55.Id. at 19. 56.Id. at 24 (citing Potomac Valve & Fitting, Inc. v. Crawford Fitting Co., 829 F.2d 1280 (4th Cir. 1987); Janklow v. Newsweek, Inc., 788 F.2d 1300, 12 Media L. Rep. (BNA) 1961 (8th Cir.),cert. denied, 479 U.S. 883 (1986); and Ollman v. Evans, 750 F.2d 970, 11 Media L. Rep. (BNA) 1433 (D.C. Cir. 1984),cert. denied, 471 U.S. 1127, 11 Media L. Rep. (BNA) 2015 (1985)). 57.See cases collected in note 68,infra. 58.See section 4:2.4[B],infra. 59.Don King Prods., Inc. v. Douglas, 742 F. Supp. 778, 782 (S.D.N.Y. 1990) (Sweet, J.);see also Lyons v. Globe Newspaper Co., 415 Mass. 258, 612 N.E.2d 1158, 1162 (1993) (citing The Supreme Court—Leading Cases, § 4:2.4Opinion 4 –15(Sack, 5th ed., 4/17) a plaintiff must prove falsity to succeed, it remains nonactionable as a matter of constitutional law. 60 Thus the syllogism inferred from Gertz stands after Milkovich: Defamation is actionable only if false; opinions cannot be false; opinions are not actionable. 61 There are cases that have been and will be decided differently after Milkovich than they would have been before. Shortly after Milkovich, for example, the Ninth Circuit considered a Gertz-based constitu- tional opinion-privilege accorded by the district court to a telecast editorial criticizing a commercially available rain repellent for auto- mobile windshields. It held that the privilege was of no avail post- Milkovich because the broadcast, although as a whole clearly com- mentary, contained allegations of fact. 62 Courts are thus more likely now than before Milkovich to examine closely what is ostensibly an 104 HARV. L. REV. 129, 219, 223–24 (1990), for the proposition that “[b]ecause the criteria used by lower courts to distinguish fact from opinion are consistent with Milkovich, the law of defamation will remain essentially unchanged”). 60.See Andrews v. Stallings, 119 N.M. 478, 892 P.2d 611 (Ct. App. 1995); Brian v. Richardson, 87 N.Y.2d 46, 660 N.E.2d 1126, 637 N.Y.S.2d 347, 24 Media L. Rep. (BNA) 1543 (1995); Am. Commc’ns Network, Inc. v. Williams, 264 Va. 336, 340, 568 S.E.2d 683, 685 (2002) (“‘Pure expres- sions of opinion, not amounting to “fighting words,”cannot form the basis of an action for defamation.’”) (quoting Chaves v. Johnson, 230 Va. 112, 119, 335 S.E.2d 97, 101 (1985), a pre-Milkovich opinion). The Iowa Supreme Court observed: Although the Court in Milkovich rejected the dichotomy between fact and opinion as the framework of analysis . . . , we agree with the following: The test used in Milkovich to identify protected opinions is very similar to the four-factor inquiry used by the circuit courts to distinguish fact from opinion. Specificity and variability are closely related to whether the statement is capable of being proven false. Whether a remark can be reasonably interpreted as stating actual facts must be inferred from the political, literary, and social context in which the statement was made. Given the similarity between the Supreme Court’s definition of protected opinion and the circuit courts’fact/opinion analysis, decisions applying the . . . test [established pre-Milkovich] are still helpful under Milkovich. Yates v. Iowa W. Racing Ass’n, 721 N.W.2d 762, 771 (Iowa 2006) (quoting Hunt v. Univ. of Minn., 465 N.W.2d 88, 94 (Minn. Ct. App. 1991)). 61.Section 4:2.3[A],supra. 62.Unelko Corp. v. Rooney, 912 F.2d 1049, 17 Media L. Rep. (BNA) 2317 (9th Cir. 1990),cert. denied, 499 U.S. 961 (1991). The court nonetheless affirmed the district court’s grant of summary judgment for the defendant on the ground that there was insufficient evidence that the statements of fact were false to require trial.Id. at 1057;see also Scheidler v. NOW, Inc., 751 F. Supp. 743 (N.D. Ill. 1990). § 4:2.4 SACK ON DEFAMATION 4 –16 opinion to discern whether it implies provable facts. 63 Nevertheless, most courts considering opinion since Milkovich64 have reached the results they likely would have reached before. They have done so either 63.See, e.g., Unelko Corp. v. Rooney, 912 F.2d 1049, 17 Media L. Rep. (BNA) 2317 (9th Cir. 1990),cert. denied, 499 U.S. 961 (1991); White v. Fraternal Order of Police, 909 F.2d 512, 17 Media L. Rep. (BNA) 2137 (D.C. Cir. 1990); Chapin v. Greve, 787 F. Supp. 557, 19 Media L. Rep. (BNA) 2161 (E.D. Va. 1992),aff ’d, 993 F.2d 1087, 21 Media L. Rep. (BNA) 1449 (4th Cir. 1993); Scheidler v. NOW, Inc., 751 F. Supp. 743 (N.D. Ill. 1990); Don King Prods., Inc. v. Douglas, 742 F. Supp. 778, 784 (S.D.N.Y. 1990) (under Milkovich test,“court is not free to ignore implicit assertions of fact necessarily embedded in an expression of opinion”); Yetman v. English, 168 Ariz. 71, 75, 811 P.2d 323, 327 (1991); Gill v. Hughes, 227 Cal. App. 3d 1299, 278 Cal. Rptr. 306 (1991); Fla. Med. Ctr., Inc. v. N.Y. Post Co., 568 So. 2d 454, 18 Media L. Rep. (BNA) 1224 (Fla. Dist. Ct. App. 1990); Beasley v. St. Mary ’s Hosp., 200 Ill. App. 3d 1024, 558 N.E.2d 677, 142 Ill. Dec. 232 (1989);In re Westfall, 808 S.W.2d 829 (Mo. 1991) (en banc),cert. denied, 502 U.S. 1009 (1991); Shearson Lehman Hutton, Inc. v. Tucker, 806 S.W.2d 914, 920 (Tex. App. 1991). 64.See, e.g., Phantom Touring, Inc. v. Affiliated Publ’ns, 953 F.2d 724, 19 Media L. Rep. (BNA) 1786 (1st Cir.),cert. denied, 504 U.S. 974 (1992); Turner v. Devlin, 848 P.2d 286, 21 Media L. Rep. (BNA) 1588 (Ariz. 1993); Dodson v. Dicker, 306 Ark. 108, 812 S.W.2d 97, 19 Media L. Rep. (BNA) 1124 (1991); McGarry v. Univ. of San Diego, 154 Cal. App. 4th 97, 64 Cal. Rptr. 3d 467 (2007) (totality of the circumstances test); Morningstar, Inc. v. L.A. Superior Court, 23 Cal. App. 4th 676, 29 Cal. Rptr. 2d 547, 22 Media L. Rep. (BNA) 1513 (1994) (“Before Milkovich and after, California courts have applied a ‘totality of the circumstances’test to review the meaning of the language in context and its susceptibility to being proved true or false.”); Moyer v. Amador Valley Joint Union High Sch. Dist., 225 Cal. App. 3d 720, 725, 275 Cal. Rptr. 494, 18 Media L. Rep. (BNA) 1602 (1990) (“Before Milkovich, the California courts had employed a ‘totality of the circumstances’test to differentiate between fact and opinion. . . .Milkovich did not substantially change [this] principle.”); NBC Subsidiary, Inc. v. Living Will Ctr., 879 P.2d 6 (Colo. 1994),cert. denied, 514 U.S. 1015 (1995); Piersall v. SportsVision of Chi., 230 Ill. App. 3d 503, 595 N.E.2d 103, 172 Ill. Dec. 40, 20 Media L. Rep. (BNA) 1223 (1992) (incapable of verification); Starnes v. Capital Cities Media, Inc., 19 Media L. Rep. (BNA) 2115 (Ill. App. Ct. 1992); Hunt v. Univ. of Minn., 465 N.W.2d 88 (Minn. Ct. App. 1991); K Corp. v. Stewart, 247 Neb. 290, 526 N.W.2d 429 (1995); Wheeler v. Neb. State Bar Ass’n, 244 Neb. 786, 508 N.W.2d 917, 921 (1993) (in “placing emphasis on the objectivity and verifiability of a statement,”Milkovich itself used an approach similar to pre-Milkovich cases depending on a fact/opinion dichotomy); Daniels v. Metro Magazine Holding Co., 634 S.E.2d 586, 34 Media L. Rep. (BNA) 2363 (N.C. Ct. App. 2006); Maynard v. Daily Gazette Co., 191 W. Va. 601, 447 S.E.2d 293, 22 Media L. Rep. (BNA) 2337 (1994). See also Reesman v. Highfill, 327 Or. 597, 965 P.2d 1030 (1998) (expressions of opinion,“which cannot be interpreted reasonably as stating facts, are not actionable because they are constitutionally protected”) (citing Milkovich’s observation, 497 U.S. at 20, that statements about § 4:2.4Opinion 4 –17(Sack, 5th ed., 4/17) because what was said, privileged as opinion before Milkovich, is nonactionable after Milkovich since it is not capable of being proved false as required by the rule of Hepps;65 or because it comes within the Milkovich classification of “rhetorical hyperbole,” “vigorous epithet,” matters of public concern not containing provably false factual statements are constitutionally protected). But cf. TMJ Implants, Inc. v. Aetna, Inc., 498 F.3d 1175, 1183–84 (10th Cir. 2007) (noting that federal courts do not defer to state courts in interpreting the federal Constitution and that, therefore, it is for federal courts, in cases before them, to interpret the constitutional boundaries established by Milkovich rather than accept the interpretation of the courts of the states in which they sit). 65.Since “pure”opinions are those that “‘do not imply facts capable of being proved true or false,’”Partington v. Bugliosi, 56 F.3d 1147, 1153 n.10, 23 Media L. Rep. (BNA) 1929 (9th Cir. 1995) (quoting Unelko Corp. v. Rooney, 912 F.2d 1049, 1053, 17 Media L. Rep. (BNA) 2317 (9th Cir. 1990),cert. denied, 499 U.S. 961 (1991)),“pure”opinions are as fully protected under Hepps as they were under the pre-Milkovich regime.See, e.g., Aviation Charter, Inc. v. Aviation Research Grp./US, 416 F.3d 864, 868 (8th Cir. 2005) (“It is well recognized in Minnesota that the First Amendment absolutely protects opinion that lacks a provably false state- ment of fact. Statements about matters of public concern that are not capable of being proven true or false and statements that reasonably cannot be interpreted as stating facts are protected from defamation actions by the First Amendment.”) (citations and internal quotation marks omitted); Weyrich v. New Republic, 235 F.3d 617, 624, 29 Media L. Rep. (BNA) 1257 (D.C. Cir. 2001) (opinion protected because “[f]or a statement to be actionable under the First Amendment, it must at a minimum express or imply a verifiably false fact about appellant”); Groden v. Random House, Inc., 1994 U.S. Dist. LEXIS 11794, 1994 WL 455555, 22 Media L. Rep. (BNA) 2257 (S.D.N.Y. 1994),aff ’d, 61 F.3d 1045, 23 Media L. Rep. (BNA) 2203 (2d Cir. 1995) (false advertising case; ostensibly factual statement as to President Kennedy ’s assassination treated as protected opinion because of inability to establish facts about the event); Beattie v. Fleet Nat’l Bank, 746 A.2d 717, 724 (R.I. 2000) (opinion based on nondefamatory statement of facts not actionable because it cannot be proved false, citing Milkovich); Raytheon Technical Servs. Co. v. Hyland, 273 Va. 292, 303, 641 S.E.2d 84, 90 (2007) (“Speech that does not contain a provably false factual connotation is sometimes referred to as ‘pure expressions of opinion.’It is firmly established that pure expressions of opinion are protected by both the First Amendment to the Federal Constitution and Article I, Section 12 of the Constitution of Virginia and, therefore, cannot form the basis of a defamation action.”) (brackets, citations, and some internal quotation marks omitted); Maynard v. Daily Gazette Co., 191 W. Va. 601, 447 S.E.2d 293, 22 Media L. Rep. (BNA) 2337 (1994) (suggestion that person involved in college basketball used position to obtain scholarship for his son is nonactionable because “[c]harges of favoritism and nepotism flourish in environments where people compete for positions, and no amount of independent or objec- tive evidence is likely to appease those who make an issue of this incident and whose minds are already made up”). § 4:2.4 SACK ON DEFAMATION 4 –18 “loose, figurative”language, or “lusty and imaginative expression.”66 Indeed, as Justice Brennan implied in his Milkovich dissent,67 courts now rely on the pre-Milkovich opinion/fact criteria to decide, post-Milkovich, what is protected based on whether it is or is not provably false. 68 The Ninth Circuit has stated the rule as it might well have prior to Milkovich:“Among other protections, the First Amendment shields A California court of appeal reached the same result on the basis of state statute that includes falsity in the libel and slander definition, holding that this statutory approach relieved the court from the need to rely on constitutional doctrine. Savage v. Pac. Gas & Elec. Co., 21 Cal. App. 4th 434, 444–45, 26 Cal. Rptr. 2d 305, 22 Media L. Rep. (BNA) 1737 (1993),cert. denied, 513 U.S. 820 (1994);see also Reesman v. Highfill, 327 Or. 597, 965 P.2d 1030 (1998) (expressions of opinion,“which cannot be interpreted reasonably as stating facts, are not actionable because they are constitutionally protected”) (citing Milkovich’s observation, 497 U.S. at 20, that statements about matters of public concern not containing provably false factual statements are constitutionally protected). 66.Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 21 Media L. Rep. (BNA) 1449 (4th Cir. 1993); Wellman v. Fox, 108 Nev. 83, 825 P.2d 208, 19 Media L. Rep. (BNA) 2028 (1992) (rhetorical hyperbole); Haueter v. Cowles Publ’g Co., 61 Wash. App. 572, 811 P.2d 231, 239, 19 Media L. Rep. (BNA) 2107 (1991) (quoting Milkovich reference to protection for “rhetorical hyperbole”). The Ninth Circuit set forth three factors to be weighed in deciding whether a statement is actionable: whether figurative or hyper- bolic language was used negating the impression that facts were being asserted; whether the publication’s general tenor negates the impression; and whether the assertion is capable of being proved true or false. Unelko Corp. v. Rooney, 912 F.2d 1049, 1053, 17 Media L. Rep. (BNA) 2317 (9th Cir. 1990),cert. denied, 499 U.S. 961 (1991);accord Dodson v. Dicker, 306 Ark. 108, 812 S.W.2d 97, 19 Media L. Rep. (BNA) 1124 (1991) (citing Unelko); Edwards v. Hall, 234 Cal. App. 3d 886, 902–04, 285 Cal. Rptr. 810, 819–20, 19 Media L. Rep. (BNA) 1969 (1991); Keohane v. Stewart, 882 P.2d 1293, 22 Media L. Rep. (BNA) 2545 (Colo. 1994),cert. denied, 513 U.S. 1127 (1995); Dulgarian v. Stone, 420 Mass. 843, 652 N.E.2d 603 (1995) (“Highway Robbery ”as title for series on automobile collision damage appraisers). 67.Milkovich, 497 U.S. at 24 (Brennan, J., dissenting). 68.See, e.g., Weyrich v. New Republic, 235 F.3d 617, 624, 29 Media L. Rep. (BNA) 1257 (D.C. Cir. 2001); Jefferson Cty. Sch. Dist. No. R-1 v. Moody ’s Inv ’rs Servs., Inc., 175 F.3d 848, 27 Media L. Rep. (BNA) 1737 (10th Cir. 1999); Partington v. Bugliosi, 56 F.3d 1147, 1158 n.16, 23 Media L. Rep. (BNA) 1929 (9th Cir. 1995) (Milkovich “does not disturb the longstanding rule that statements on matters of public concern, at least when media defendants are involved are absolutely protected if they are not susceptible of being proved true or false.”); Moldea v. N.Y. Times Co., 22 F.3d 310, 22 Media L. Rep. (BNA) 1673 (D.C. Cir.),cert. denied, 513 U.S. 875 (1994); Phantom Touring, Inc. v. Affiliated Publ’ns, 953 F.2d 724, 727, 19 Media L. Rep. (BNA) 1786 (1st Cir.) (Milkovich “did not depart from the multi-factored analysis that had been employed for some time by lower courts”),cert. denied, 504 U.S. 974 (1992); Quigley v. Rosenthal, 43 F. Supp. 2d 1163, 1178 (D. Colo. 1999) (applying three-part test established § 4:2.4Opinion 4 –19(Sack, 5th ed., 4/17) in Burns v. McGraw-Hill Broad. Co., 659 P.2d 1351, 9 Media L. Rep. (BNA) 1257 (Colo. 1983)); Jewell v. NYP Holdings, Inc., 23 F. Supp. 2d 348 (S.D.N.Y. 1998); McClure v. Am. Family Mut. Ins. Co., 29 F. Supp. 2d 1046 (D. Minn. 1998) (relying in part on New York state cases); Johnson v. Cmty. Nursing Servs., 985 F. Supp. 1321 (D. Utah 1997) (relying on Ollman v. Evans, 750 F.2d 970, 11 Media L. Rep. (BNA) 1433 (D.C. Cir. 1984) (en banc),cert. denied, 471 U.S. 1127, 11 Media L. Rep. (BNA) 2015 (1985)); Henry v. Nat’l Ass’n of Air Traffic Specialists, Inc., 836 F. Supp. 1204, 1214–19 (D. Md. 1993) (relying on, inter alia, both Ollman v. Evans, 750 F.2d 970, 11 Media L. Rep. (BNA) 1433 (D.C. Cir. 1984) (en banc), cert. denied, 471 U.S. 1127, 11 Media L. Rep. (BNA) 2015 (1985), and Potomac Valve & Fitting, Inc. v. Crawford Fitting Co., 829 F.2d 1280, 1285 n.13 (4th Cir. 1987)),aff ’d, 34 F.3d 1066 (4th Cir. 1994); Kahn v. Bower, 232 Cal. App. 3d 1599, 1607–08, 284 Cal. Rptr. 244, 249–50, 19 Media L. Rep. (BNA) 1236 (1991); NBC Subsidiary, Inc. v. Living Will Ctr., 879 P.2d 6 (Colo. 1994) (“[T]he factors identified in [the Colorado Supreme Court’s pre-Milkovich case holding opinion to be protected] for distinguishing between facts and opinions remain applicable under the Milkovich test.”), cert. denied, 514 U.S. 1015 (1995); Keohane v. Stewart, 882 P.2d 1293, 22 Media L. Rep. (BNA) 2545 (Colo. 1994) (applying these factors to hold two letters to the editor nonactionable but statement by councilman action- able),cert. denied, 513 U.S. 1127 (1995); Daley v. Aetna Life & Cas. Co., 249 Conn. 766, 795, 734 A.2d 112, 129 (1999) (“To be actionable, the statement in question must convey an objective fact, as generally, a defen- dant cannot be held liable for expressing a mere opinion.”); Moriarty v. Greene, 315 Ill. App. 3d 225, 235, 732 N.E.2d 730, 740, 247 Ill. Dec. 675 (2000) (relying on Mittelman v. Witous, 135 Ill. 2d 220, 243, 142 Ill. Dec. 232, 552 N.E.2d 973 (1989), in turn relying on Ollman v. Evans, 750 F.2d 970, 11 Media L. Rep. (BNA) 1433 (D.C. Cir. 1984),cert. denied, 471 U.S. 1127, 11 Media L. Rep. (BNA) 2015 (1985)); Geraci v. Eckankar, 526 N.W.2d 391, 397 (Minn. Ct. App. 1995), and cases cited therein; Lund v. Chi. & Nw. Transp. Co., 467 N.W.2d 366 (Minn. Ct. App. 1991); Wheeler v. Neb. State Bar Ass’n, 244 Neb. 786, 508 N.W.2d 917, 922 (1993) (relying on Ollman v. Evans, 750 F.2d 970, 11 Media L. Rep. (BNA) 1433 (D.C. Cir. 1984) (en banc),cert. denied, 471 U.S. 1127, 11 Media L. Rep. (BNA) 2015 (1985)); Moore v. Sun Publ’g Corp., 118 N.M. 375, 881 P.2d 735 (Ct. App. 1994); Price v. Walters, 918 P.2d 1370 (Okla. 1996); Krueger v. Austad, 1996 SD 26, 545 N.W.2d 205 (S.D. 1996); Janklow v. Viking Press, 459 N.W.2d 415, 17 Media L. Rep. (BNA) 2220 (S.D. 1990); Maynard v. Daily Gazette Co., 191 W. Va. 601, 447 S.E.2d 293, 22 Media L. Rep. (BNA) 2337 (1994); Dworkin v. L.F.P., Inc., 839 P.2d 903, 914, 20 Media L. Rep. (BNA) 2001 (Wyo. 1992) (citing pre-Milkovich case, comparing its facts to those at bar, and relying on its observation that statement is likely to be protected if it is “cautiously phrased in terms of apparency ”).Contra Biospherics, Inc. v. Forbes, Inc., 151 F.3d 180 (4th Cir. 1998) (abandoning multipartapproach of Potomac Valve & Fitting, Inc. v. Crawford Fitting Co., 829 F.2d 1280 (4th Cir. 1987), in favor of analysis under the language of Milkovich). Cf. Faulkner v. Ark. Children’s Hosp., 347 Ark. 941, 956, 69 S.W.3d 393, 402–03 (2002), in which the court adopted a three-part test ulti- mately derived from Milkovich itself:“(1) whether the author used figura- tive or hyperbolic language that would negate the impression that he or she was seriously asserting or implying a fact; (2) whether the general tenor of the publication negates this impression; and (3) whether the published § 4:2.4 SACK ON DEFAMATION 4 –20 statements of opinion on matters of public concern that do not contain or imply a provable factual assertion.”69 Similarly, in Gilbrook v. City of Westminster,70 the court was faced with a labor conflict during the course of which a union official was referred to as a “Jimmy Hoffa.”He brought suit asserting that the statement was slanderous. The Ninth Circuit held that it was not actionable, observing that First Amendment “protection extends to statements of opinion, addressing matters of public concern, that do not ‘contain a provably false factual connotation,’and to statements that cannot ‘reasonably [be] inter- preted as stating actual facts,’”citing and quoting Milkovich.71 The court then turned to its own previously adopted three-pronged counterpart to the Ollman test: First, we look at the statement in its broad context, which includes the general tenor of the entire work, the subject of the statements, the setting, and the format of the work. Next we turn to the specific context and content of the statements, analyzing the extent of figurative or hyperbolic language used and the reasonable expectations of the audience in that particular situation. Finally, we inquire whether the statement itself is sufficiently factual to be susceptible of being proved true or false. 72 assertion is susceptible of being proved true or false.”The court cited, inter alia, Dodson v. Dicker, 306 Ark. 108, 111, 812 S.W.2d 97, 98, 19 Media L. Rep. (BNA) 1124 (1991), which in turn cited Unelko Corp. v. Rooney, 912 F.2d 1049, 1053, 17 Media L. Rep. (BNA) 2317 (9th Cir. 1990), which in turn quoted Milkovich, 497 U.S. at 21: This is not the sort of loose, figurative or hyperbolic language which would negate the impression that the writer was seriously main- taining petitioner committed the crime of perjury. Nor does the general tenor of the article negate this impression. We also think the connotation that petitioner committed perjury is sufficiently factual to be susceptible of being proved true or false. 69.Lieberman v. Fieger, 338 F.3d 1076, 1079 (9th Cir. 2003) (quoting Under- wager v. Channel 9 Austl., 69 F.3d 361, 366, 24 Media L. Rep. (BNA) 1039 (9th Cir. 1995)) (internal quotation marks omitted);see also Franklin v. Dynamic Details, Inc., 116 Cal. App. 4th 375, 385, 10 Cal. Rptr. 3d 429, 436 (2004). 70.Gilbrook v. City of Westminster, 177 F.3d 839 (9th Cir.),cert. denied, 528 U.S. 1061 (1999). 71.Id. at 861 (citing and quoting Milkovich, 497 U.S. at 20) (alteration in the original);see similarly Knievel v. ESPN, 393 F.3d 1068, 1074, 33 Media L. Rep. (BNA) 1097 (9th Cir. 2005);accord Sands v. Living Word Fellowship, 34 P.3d 955, 960 (Alaska 2001) (“If the context demonstrates to the audience that the speaker is not purporting to state or imply actual, known facts, the speech cannot be the basis for a defamation claim.”). 72.Gilbrook, 177 F.3d at 862 (quoting Underwager v. Channel 9 Austl., 69 F.3d 361, 366, 24 Media L. Rep. (BNA) 1039 (9th Cir. 1995));accord Neumann v. Liles, 358 Or. 706, 720–21, 369 P.3d 1117, 1125–26, 44 § 4:2.4Opinion 4 –21(Sack, 5th ed., 4/17) The court applied the three-factor analysis, concluding that the “‘Jimmy Hoffa’statement was protected by the First Amendment and, therefore, was not the type of speech that may be the subject of a state-law defamation action.”73 The City of Westminster court wrote as though Ollman, rejected by Milkovich nine years before, was still the law, and as though Milkovich, which City of Westminster quoted, had endorsed it. 74 Similarly, the Supreme Court of Georgia concluded, quoting a pre- Milkovich Georgia Court of Appeals opinion, that “the expression of opinion on matters with respect to which reasonable men might entertain differing opinions is not libelous. . . . An assertion that cannot be proved false cannot be held libelous.”75 But “[a]n opinion can constitute actionable defamation if the opinion can reasonably be interpreted, according to the context of the entire writing in which the opinion appears, to state or imply defamatory facts about the plaintiff that are capable of being proved false.”76 Media L. Rep. (BNA) 1433 (2016) (applied to online criticism of wedding venue, captioned “Disaster!!!!! Find a different wedding venue.”). For a more nuanced application of the Underwager test to a far more difficult and complex communication, see Nicosia v. De Rooy, 72 F. Supp. 2d 1093, 28 Media L. Rep. (BNA) 1129 (N.D. Cal. 1999). 73.Gilbrook, 177 F.3d at 862. The court later observed: In the final analysis, [the] reference to Jimmy Hoffa was the type of rhetorical hyperbole or caustic attack that a reasonable person would expect to hear in a rancorous public debate involving money, unions, and politics. Therefore, the statement could not give rise to a cognizable claim of defamation. Id. at 863. 74.There does appear to be a thread of inconsistency in all of this. One of the several factors in determining whether a statement is nonactionable opinion using one of the multifactor tests is “verifiability.”See, e.g., Underwager v. Channel 9 Austl., 69 F.3d 361, 366, 24 Media L. Rep. (BNA) 1039 (9th Cir. 1995); Ollman v. Evans, 750 F.2d 970, 979 (D.C. Cir. 1984) (en banc),cert. denied, 471 U.S. 1127 (1985). Yet once it is determined that a statement is opinion it becomes nonactionable solely because it is not verifiable, irrespective of the other factors—it is not provably false and therefore not actionable under Hepps.Why not use a one-factor test—verifiability? Perhaps what is meant by verifiability as a factor in the multifactor test is that the appearance of verifiability combined with other factors helps determine whether the statement in question is verifiable. In any event, this mechanism for deciding which statements are nonactionable opinions seems to have chugged along without courts addressing the issue. 75.Gast v. Brittain, 277 Ga. 340, 341, 589 S.E.2d 63, 64 (2003) (ellipses in original; citation and internal quotation marks omitted). 76.Id. at 341, 589 S.E.2d at 64 (footnote omitted). § 4:2.4 SACK ON DEFAMATION 4 –22 And the Seventh Circuit said: [I]f it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claim- ing to be in possession of objectively verifiable facts, the statement is not actionable. 77 Although Milkovich was cited by the Seventh Circuit for the proposi- tion, it is extremely close to the law as it existed pre-Milkovich. And from time to time, courts revert to the apparent state of the law prior to Milkovich: to the effect that statements of opinion are absolutely privileged under the First Amendment. 78 77.Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227, 21 Media L. Rep. (BNA) 2161 (7th Cir. 1993) (dicta),quoted with approval in Riley v. Harr, 292 F.3d 282, 289, 30 Media L. Rep. (BNA) 1961 (1st Cir. 2002); Gray v. St. Martin’s Press, Inc., 221 F.3d 243, 248 (1st Cir. 2000),cert. denied, 531 U.S. 1075 (2001); and Partington v. Bugliosi, 56 F.3d 1147, 1156, 23 Media L. Rep. (BNA) 1929 (9th Cir. 1995);accord Standing Comm. on Discipline v. Yagman, 55 F.3d 1430, 1441 (9th Cir. 1995) (quoting Haynes); Kinzel v. Discovery Drilling, Inc., 93 P.3d 427, 440 (Alaska 2004) (quoting Haynes). The Illinois Supreme Court has also concluded, applying Ollman-like criteria to determine whether a statement “can reasonably be interpreted as stating actual fact,”that if it cannot so reasonably be interpreted, it cannot be actionable defamation. Imperial Apparel, Ltd. v. Cosmo’s Designer Direct, Inc., 227 Ill. 2d 381, 398–99, 882 N.E.2d 1011, 1022, 317 Ill. Dec. 855, 36 Media L. Rep. (BNA) 1335 (2008). In a trio of Illinois Appellate Court decisions, derogatory statements were also held nonac- tionable because, without any context provided, they were not “objectively verifiable and, thus, [were not] actionable.”Schivarelli v. CBS, Inc., 333 Ill. App. 3d 755, 761, 776 N.E.2d 693, 698, 267 Ill. Dec. 321, 30 Media L. Rep. (BNA) 2268 (2002) (“the evidence seems to indicate that you’re [the plaintiff is] cheating the city ”shorn of all context not actionable) (citing and discussing Dubinsky v. United Airlines Master Exec. Council, 303 Ill. App. 3d 317, 708 N.E.2d 441, 236 Ill. Dec. 855 (1999) (referring to Dubinsky as a “crook”not, without more, actionable); and Hopewell v. Vitullo, 299 Ill. App. 3d 513, 701 N.E.2d 99, 233 Ill. Dec. 456 (1998) (statement that plaintiff was terminated as employee of political campaign “because of incompetence,”without more, not actionable)). 78.See UnitedConsumersClub,Inc.v.Bledsoe,2006U.S.Dist.LEXIS57668,at *32,2006WL2361818,at*10(N.D.Ind.2006)(“[The]statements[atissue] were [the news source’s] opinion, which is absolutely privileged under the First Amendment, regardless of whether the statements also fall under another privilege.”); Cooksey v. Stewart, 938 So. 2d 1206, 1212 (La. Ct. App. 2006) (“The First Amendment freedoms afford, at the very least, a defense against defamation actions for expressions of opinion.”); Topper v. Midwest Div., Inc., 306 S.W.3d 117, 128 (Mo. App. 2010) (“Expressions of opinion are privileged under the First Amendment’s guarantee of freedom of speech.”). § 4:2.4Opinion 4 –23(Sack, 5th ed., 4/17) Stating the test does not make its application easy. There is a continuum between what is and is not provably false. 79 Just as identi- fication of what was “opinion”and therefore protected pre-Milkovich was often difficult, determining what is not provably false and therefore is not potentially actionable post-Milkovich may be extremely difficult. [C] Open Issues Open issues about the implications of Milkovich remain. Chief among them is the scope of protection for opinion when the statement is not about a matter of public concern. Before Milkovich, all opinion was immune. But after Milkovich, protection depends largely on the Hepps doctrine. Under Hepps, a plaintiff must prove falsity, and opinion is protected since it cannot be proven false. But are statements not provably false about matters of purely private significance outside the scope of the Hepps doctrine and therefore actionable post-Milkovich?80 It remains unclear what rubric and to what extent protection for such statements under the First Amendment might be found. 81 The Supreme Court might conclude in the proper case that statements not demonstrably true or false may not constitutionally support a defama- tion judgment irrespective of who has the burden of proof as to truth or falsity. That was arguably an implication of Gertz that survives Milkovich.It remains theoretically possible, however, that protection for such statements of opinion will be relegated to the common-law 79.As one commentator has noted,“verifiability is not a property that either does or does not obtain. Rather, it is a property that may be present in varying degrees.”Frederick F. Schauer,Language, Truth, and the First Amendment: An Essay in Memory of Harry Canter, 64 VA. L. REV. 263, 279 (1978),quoted in Moldea v. N.Y. Times Co., 15 F.3d 1137, 1154, 22 Media L. Rep. (BNA) 1321 (Mikva, J.,dissenting),modifiedon reh’g, 22 F.3d 310, 22 Media L. Rep. (BNA) 1673 (D.C. Cir.),cert. denied, 513 U.S. 875 (1994). 80.See discussion of Hepps at section 3:3.2[A],supra. 81.A California court of appeal has noted that under California statutory law, libel and slander are defined as false publications. Since an opinion is neither true nor false, the court concluded, an opinion cannot be libel or slander irrespective of the identity of the parties or the extent to which the communication is of public concern. Savage v. Pac. Gas & Elec. Co., 21 Cal. App. 4th 434, 444–45, 26 Cal. Rptr. 2d 305, 22 Media L. Rep. (BNA) 1737 (1993),cert. denied, 513 U.S. 820 (1994). In Imperial Apparel, Ltd. v. Cosmo’s Designer Direct, Inc., 227 Ill. 2d 381, 399–400, 882 N.E.2d 1011, 1022–23, 317 Ill. Dec. 855, 36 Media L. Rep. (BNA) 1335 (2008), the Illinois Supreme Court suggested it might so hold under federal constitutional principles, but did not actually decide the issue. The court pointed out that the Ohio Supreme Court, while holding such statements to be protected under Ohio’s state constitutional protec- tion for opinion in Wampler v. Higgins, 93 Ohio St. 3d 111, 123–26, 752 N.E.2d 962, 974–76, 29 Media L. Rep. (BNA) 2377 (2001), referred in the course of its analysis to federal constitutional principles. § 4:2.4 SACK ON DEFAMATION 4 –24 safeguards of the fair-comment, mutual interest, and similar privileges.82 Hepps and its consequent protection for statements of opinion almost certainly apply to lawsuits against nonmedia defendants. 83 It seems increasingly unlikely that distinctions will be made in this connection between “media”and “nonmedia”defendants, inasmuch as with the proliferation of new means of electronic communication, the line between them is becoming increasingly difficult to draw. If, nonetheless,Hepps is held not to apply in nonmedia cases—whatever they are—analysis of protection for statements of opinion by persons not so classified would likely parallel that for statements not about matters of public concern. 82.See sections 4:4 and 9:2.3,infra.It is arguable that “fair comment” protection for these statements alone remains because, absent the Hepps presumption of truth,“the conflict . . . would always be resolved in the plaintiff ’s favor”and opinions, neither provably true nor provably false, would therefore, for litigation purposes, always be false. Note,Fair Com- ment, 62 HARV. L. REV. 1207, 1212 (1949),quoted in Franklin & Bussel, The Plaintiff ’s Burden in Defamation: Awareness and Falsity, 25 WM. & MARY L. REV. 825, 872 (1984). Arizona, relying largely on Hepps, has said that actionability of a statement depends, in part, on “whether the statement was provable as false.”Yetman v. English, 168 Ariz. 71, 76, 811 P.2d 323, 328 (1991). A federal district court in Illinois, applying Arizona law, concluded that that principle does not govern with respect to statements that are not about “matters of public concern.”Chicago v. Loyola Univ. Med. Ctr., 787 F. Supp. 2d 797, 800, 804–05 (N.D. Ill. 2011). 83.See Flamm v. Am. Ass’n of Univ. Women, 201 F.3d 144, 28 Media L. Rep. (BNA) 1329 (2d Cir. 2000) (opinion case); Wheeler v. Neb. State Bar Ass’n, 244 Neb. 786, 508 N.W.2d 917, 921 (1993); Robert D. Sack,Protection of Opinion Under the First Amendment: Reflections on Alfred Hill,“Defama- tion and Privacy under the First Amendment”, 100 COLUM. L. REV. 294, 326–27 (2000); section 3:3.2[B][2],supra (discussing application to nonmedia-defendant cases of the Hepps rule as to burden of proof). The Flamm courtlimiteditsholdingtocases,suchastheonebeforeit,“wherethe statements were directed towards a public audience with an interest in that concern,”although in a prefatory sentence it hinted that the principle might be broader by remarking “that a distinction drawn according to whether the defendant is a member of the media or not is untenable.”Flamm, 201 F.3d at 149. It will be recalled that Justice Brennan, dissenting in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 11 Media L. Rep. (BNA) 2417 (1985), noted that six Justices “agree today that, in the context of defamation law, the rights of the institutional media are no greater and no less than those enjoyed by other individuals or organizations engaged in the same activities.”The statement preceded the Court’s decision in Hepps, but that case is probably best characterized as neutral on the issue. It was itself a traditional media-defendant case in which comments on its application to nonmedia defendants would have been dicta. See generally Introduction,supra. § 4:2.4Opinion 4 –25(Sack, 5th ed., 4/17) Also open but less discussed is the question whether the fact that the plaintiff is a public figure or public official enters into the opinion calculus. One court, noting that,“[w]here the question of truth or falsity is a close one, a court should err on the side of nonaction- ability,”84 held that a statement about a public figure should be given more leeway as opinion than would similar statements about private people. [D] Massachusetts, New Jersey, New York, Ohio, Oklahoma, Utah, and Washington Reading Milkovich narrowly, and finding it insufficient to protect statements of opinion, the New York Court of Appeals adopted as part of New York State constitutional law its pre-Milkovich doctrine of protection for all statements of opinion, emphasizing, in the proper case, the context and overall impact of the communication. 85 84.Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1292, 14 Media L. Rep. (BNA) 2249 (D.C. Cir.),cert. denied, 488 U.S. 825 (1988);accord Hunter v. Hartman, 545 N.W.2d 699, 24 Media L. Rep. (BNA) 2004 (Minn. Ct. App. 1996). 85.Immuno A.G. v. Moor-Jankowski, 77 N.Y.2d 235, 567 N.E.2d 1270, 566 N.Y.S.2d906,18MediaL.Rep.(BNA)1625,cert.denied,500U.S.954(1991). The three concurring opinions criticized the majority for giving Milkovich too narrow a reading. 77 N.Y.2d at 257 (Simons, J., concurring);id. at 263 (Titone, J., concurring);id. at 268 (Hancock, J., concurring);see also Celle v. Filipino Reporter Enters., Inc., 209 F.3d 163, 178 (2d Cir. 2000); Flamm v. Am.Ass’nofUniv. Women,201 F.3d144, 147,28 MediaL.Rep.(BNA)1329 (2d Cir. 2000) (New York Court of Appeals has in Immuno “reaffirmed that the standard articulated and applied in [its pre-Milkovich opinion in] Steinhilber [v. Alphonse, 68 N.Y.2d 283, 289–90, 508 N.Y.S.2d 901, 904, 501 N.E.2d 550, 553 (1986)] furnishes the operative standard in this State for separating actionable fact from protected opinion”) (citation to Immuno and internal quotation marks omitted); Levin v. McPhee, 119 F.3d 189, 25 Media L. Rep. (BNA) 1946 (2d Cir. 1997) (repetition of speculation about mysterious death of Soviet artist protected); Mann v. Abel, 10 N.Y.3d 271, 276, 885 N.E.2d 884, 885–86, 856 N.Y.S.2d 31, 32–33, 36 Media L. Rep. (BNA) 2106 (2008) (“Expressions of opinion, as opposed to assertions of fact,aredeemedprivilegedand,nomatterhowoffensive,cannotbethesubject of an action for defamation.”),cert. denied, 555 U.S. 1170 (2009); Brian v. Richardson, 87 N.Y.2d 46, 660 N.E.2d 1126, 637 N.Y.S.2d 347, 24 Media L. Rep. (BNA) 1543 (1995); Gross v. N.Y. Times Co., 82 N.Y.2d 146, 156, 623 N.E.2d 1163, 1169, 603 N.Y.S.2d 813, 21 Media L. Rep. (BNA) 2142 (1993) (allegations “in the course of a lengthy, copiously documented newspaper series”were potentially actionable statements of fact); 600 W. 115th St. v. Van Gutfield, 80 N.Y.2d 130, 603 N.E.2d 930, 589 N.Y.S.2d 825, 21 Media L. Rep. (BNA) 1811 (1992) (statement made in heated debate before munici- pal agency nonactionable under both Milkovich and Immuno),cert. denied, 508 U.S. 910 (1993); Sandals Resorts Int’l Ltd. v. Google, Inc., 86 A.D.3d 32,42,925N.Y.S.2d407,415,39MediaL.Rep.(BNA)2065(1stDep’t2011) (“Considering the e-mail in question here as a whole, we find that it is an exercise in rhetoric, seeking to raise questions in the mind of the reader § 4:2.4 SACK ON DEFAMATION 4 –26 “[T]he dispositive inquiry . . . is . . . whether the challenged statement can reasonably be construed to be stating or implying facts about the defamation plaintiff.”86 Some Texas courts of appeals, finding their pre-Milkovich case law to be based on Texas state constitutional free-speech guarantees, have continued to accord per se protection to opinion.87 regarding the role of Jamaican nationals in the Sandals resorts located in Jamaica.”); Park v. Capital Cities Commc’ns, Inc., 181 A.D.2d 192, 585 N.Y.S.2d902,20MediaL.Rep.(BNA)1613(4thDep’t),appealdismissed,80 N.Y.2d 1022, 592 N.Y.S.2d 668, 607 N.E.2d 815 (1992); McGill v. Parker, 179 A.D.2d 98, 582 N.Y.S.2d 91, 19 Media L. Rep. (BNA) 2170 (1st Dep’t 1992). The Gross court read its earlier opinions as providing protec- tion that is similar to federal constitutional protection post-Milkovich, that is, focusing on whether the communication is demonstrably false, except that under N.Y. law the context of the statement is more closely examined to determine whether the statement is provably false and therefore potentially actionable. 82 N.Y.2d at 151–52. The Gross court applied a three- factor test adopted from New York’s pre-Milkovich law:“(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the commu- nication in which the statement appears or the broader social context and surrounding circumstances are such as to ‘signal . . . readers or listeners that what is being read or heard is likelytobeopinion, notfact.’” Id. at 153 (quoting Steinhilber);accord Cellev. Filipino Reporter Enters., Inc., 209 F.3d 163, 178–79 (2d Cir. 2000); Brian v. Richardson, 87 N.Y.2d 46, 660 N.E.2d 1126, 637 N.Y.S.2d 347, 24 Media L. Rep. (BNA) 1543 (1995):see also Sleepy ’s LLC v. Select Comfort Wholesale Corp., 779 F.3d 191, 202–03 (2d Cir. 2015) (summarizing and applying New York law). New York courts tend to apply the state’s protection for expressions of opinion broadly.See, e.g., Rappaport v. VV Publ’g Corp., 163 Misc. 2d 1, 618 N.Y.S.2d 746 (N.Y. Cty. 1994) (assertions that plaintiff was one of ten worst judges in New York, allegedly suggesting that he had wrongfully arranged to have certain kinds of cases assigned to him, held to be protected, citing pre- and post-Milkovich case law inside and outside the state),aff ’d, 223 A.D.2d 515, 637 N.Y.S.2d 109, 24 Media L. Rep. (BNA) 1831 (1st Dep’t 1996);see also Brian, 87 N.Y.2d 46 (reporting of unsub- stantiated charges held, in context, to be protected opinion). For a survey of New York law respecting statements of opinion, emphasizing the breadth of the protection such law accords to defendants, see Michel v. NYP Holdings, Inc., 816 F.3d 686, 695–96, 44 Media L. Rep. (BNA) 1401 (11th Cir. 2016) (describing New York law and applying it to defamation case brought in Florida). 86.Flamm v. Am. Ass’n of Univ. Women, 201 F.3d 144, 148, 28 Media L. Rep. (BNA) 1329 (2d Cir. 2000). 87.Associated Press v. Cook, 17 S.W.3d 447, 454, 28 Media L. Rep. (BNA) 2065 (Tex. App. 2000) (relying on, inter alia, the Texas Supreme Court’s pre-Milkovich case, Carr v. Brasher, 776 S.W.2d 567, 570, 16 Media L. Rep. (BNA) 1942 (Tex. 1989)). § 4:2.4Opinion 4 –27(Sack, 5th ed., 4/17) Similarly, although the Supreme Court of New Jersey later adopted the traditional post-Milkovich approach, protecting statements that cannot be proved false and “loose, figurative or hyperbolic language,” the New Jersey Supreme Court observed that New Jersey ’s common- law fair-comment privilege, which provides absolute protection for opinion based on stated or generally known facts on matters of public concern (“pure opinion”), was “at least as protective of free speech as federal law would be.”88 The court therefore concluded that it was unnecessary to decide the extent of protection for opinion obtaining under the federal Constitution. 89 In Massachusetts, the Supreme Judicial Court announced its fundamental agreement with the law pre-Milkovich, basing it on the First Amendment as well as state constitutional principles and the common law. [W]ere [protection of opinion] not required [by the First Amend- ment], we would “reach the same result, believing that the action [at bar] is plainly without merit and the prospect of forcing the defendant to trial in such a case would put an unjustified and serious damper on freedom of expression.”. . . [T]he independent protections of freedom of speech which are found in our common law and in [the Massachusetts Declaration of Rights] would lead us to reach the same result even if there existed no Federal constitutional support for the principles which we applied. 90 In Maine, similarly, to be actionable,“[a] false statement must be ‘an assertion of fact, either explicit or implied, and not merely an opinion, provided the opinion does not imply the existence of undisclosed defamatory facts.’If the publication is truly an opinion, however, then it is not actionable.”91 The Utah Supreme Court, after a painstaking review of its own constitution and constitutional history and of opinions under state 88.Ward v. Zelikovsky, 136 N.J. 516, 531, 643 A.2d 972, 979 (1994). 89.Cassidyv.Merin,244N.J.Super.466,582A.2d1039,1048(1990).Thecourt noted that “[t]he New Jersey Supreme Court was prescient in its recognition that ‘[a]lthough constitutional considerations have dominated defamation law in recent years, the common law provides an alternative, and potentially more stable, framework for analyzing statements about matters of public interest.’”582 A.2d at 1047 n.5 (quoting Dairy Stores, Inc. v. Sentinel Publ’g Co., 104 N.J. 125, 516 A.2d 220, 13 Media L. Rep. (BNA) 1594 (1986));see also Peterson v. Meggitt, 407 N.J. Super. 63, 969 A.2d 500 (App. Div. 2009). 90.Lyons v. Globe Newspaper Co., 415 Mass. 258, 612 N.E.2d 1158, 1162 (1993) (quoting Nat’l Ass’n of Gov ’t Emps. v. Cent. Broad. Corp., 379 Mass. 220, 233, 396 N.E.2d 996, 1004, 5 Media L. Rep. (BNA) 2078 (1979),cert. denied, 446 U.S. 935 (1980)). 91.Ballard v. Wagner, 2005 ME 86, ¶ 10, 877 A.2d 1083, 1087 (2005) (citation omitted). § 4:2.4 SACK ON DEFAMATION 4 –28 constitutions similar to its own, also found protection for opinion similar to pre-Milkovich federal constitutional protection under its state constitutional guaranty of free expression. 92 Ohio courts, where Milkovich originated, have themselves, under the state constitution, strictly adhered to pre-Milkovich law: Opinion is nonactionable per se. 93 The Ohio Supreme Court has explicitly extended the protection to nonmedia defendants. 94 And it has adopted the Ollman test to determine whether a statement is opinion protected per se under its state constitution. 95 Rhode Island has based protection for opinion in part on state law and tradition: 92.West v. Thomson Newspapers, 872 P.2d 999 (Utah 1994). In applying it, the court adopted the D.C. Circuit’s pre-Milkovich analysis set forth in Ollman v. Evans, 750 F.2d 970, 11 Media L. Rep. (BNA) 1433 (D.C. Cir. 1984) (en banc),cert. denied, 471 U.S. 1127, 11 Media L. Rep. (BNA) 2015 (1985). 93.Vail v. Plain Dealer Publ’g Co., 72 Ohio St. 3d 279, 649 N.E.2d 182, 23 Media L. Rep. (BNA) 1881 (1995). The Vail decision is of substantial historical interest. In Milkovich, a case also arising out of Ohio courts, the U.S. Supreme Court held opinion not to be per se nonactionable despite a previous Ohio Supreme Court decision—Scott v. News-Herald, 25 Ohio St. 3d 243, 496 N.E.2d 699, 13 Media L. Rep. (BNA) 1241 (1986)—which had held opinion to be per se nonactionable under the Ohio constitution. Milkovich v. Lorain Journal Co., 497 U.S. 1, 10–11 n.5, 17 Media L. Rep. (BNA) 2009 (1990). The Scott court, however, had relied heavily on federal case law in reaching its conclusion, and did not make it clear on the face of its opinion that the Ohio constitution provided an independent state ground for the court’s conclusion. The Supreme Court therefore held that, despite the state-law grounds for the Ohio rule, federal review was not barred.Id. The Ohio Supreme Court in Vail, again relying on Scott, did not repeat its mistake. Although observing that the difference between per se protection for opinion and the protection that has arisen out of Milkovich “is not as great as it may appear,”the court said explicitly that per se protection of opinion was a matter of state constitutional mandate.Vail, 649 N.E.2d at 185. Had it been as clear in Scott, there would have been no Milkovich. 94.Wampler v. Higgins, 93 Ohio St. 3d 111, 752 N.E.2d 962, 29 Media L. Rep. (BNA) 2377 (2001). 95.Id. (citing Ollman v. Evans, 471 U.S. 1127, 1129, 11 Media L. Rep. (BNA) 2015 (1985), discussed in section 4:2.3[B],supra). For a discussion of the law protecting opinion in Ohio and an application of it rendering nonactionable as opinion a statement which, read alone, would likely be treated as an assertion of fact, see Bentkowski v. Scene Magazine, 637 F.3d 689, 39 Media L. Rep. (BNA) 1654 (6th Cir. 2011) (“The Court of Appeals of Ohio has recognized that the ‘language of the entire column may signal that a specific statement which, sitting alone, would appear to be factual is in actuality a statement of opinion.’DeVito v. Gollinger, 133 Ohio App. 3d 51, 726 N.E.2d 1048, 1051 (Ohio Ct. App. 1999) (internal quotation marks and citation omitted).”). § 4:2.4Opinion 4 –29(Sack, 5th ed., 4/17) Living in a state founded by dissenters, symbolized by “the independent man,”and still priding itself on its role in serving as the cradle of religious liberty in America, we are loath to adopt a rule that would retard the free flow of opinion and debate that has been so vital to our state throughout its history. 96 And the Washington Supreme Court, more than a decade after Milkovich was decided, applied pre-Milkovich doctrine according per se protection to expressions of opinion under the First Amendment without referring either to Milkovich or to any case decided thereafter (excepting only the decision on appeal). 97 There is at least a hint that Iowa law is to the same effect. 98 Oklahoma, by statute, is particularly protective of criticism of public officials: Under Title 12, § 1443.1, of the Oklahoma Statutes,“[a]ny and all criticisms upon the official acts of any and all public officers” are privileged and cannot be considered libelous, unless a defendant makes a false allegation that the official engaged in criminal behavior. To fall into this category,“the words alleged to have been spoken of the plaintiff, when taken in their plainest and most natural sense, and as they would be ordinarily understood, [must] obviously import the commission of crime punishable by indictment.”99 If protection accorded by a state is based on its court’s reading of state law, it is to be followed in federal-court diversity cases applying that law. If it is based on the state court’s interpretation of federal constitutional principles or federal constitutional case law, such as Milkovich, however, the federal courts decide the extent of the protec- tion without deference to the state court’s interpretation. 100 96.Beattie v. Fleet Nat’l Bank, 746 A.2d 717, 724 (R.I. 2000). 97.Robel v. Roundup Corp., 148 Wash. 2d 35, 55, 59 P.3d 611, 622 (2002). 98.Kiesau v. Bantz, 686 N.W.2d 164, 177 (Iowa 2004) (stating in dictum that opinion is constitutionally protected under the First Amendment without reference to Milkovich; citing pre-Milkovich case Jones v. Palmer Commc’ns, Inc., 440 N.W.2d 884, 891, 16 Media L. Rep. (BNA) 2137 (Iowa 1989)). 99.Peterson v. Grisham, 594 F.3d 723, 729, 38 Media L. Rep. (BNA) 1330 (10th Cir. 2010) (citing, for second quotation, Okla. Publ’g Co. v. Kendall, 96 Okla. 194, 221 P. 762, 764 (1923)).“Oklahoma courts have extended [the statute’s] reach to cover claims for intentional infliction of emotional distress and false light invasion of privacy.”Id., 594 F.3d at 729–30. 100.TMJ Implants, Inc. v. Aetna, Inc., 498 F.3d 1175, 1183–84 (10th Cir. 2007). § 4:2.4 SACK ON DEFAMATION 4 –30 § 4:3 Analysis § 4:3.1 Custom and Context [A] Generally As is the case with all interpretation of statements examined under the law of defamation, whether stated as a search for the distinction between fact and opinion pre-Milkovich or as a search for the distinction between that which is and is not provably false post-Milkovich, two things are central to the inquiry: custom (how words are ordinarily used) and context (both in terms of the language used and the situation in which it is used). 101 “Words which, taken by themselves, would appear to be a positive allegation of fact, may be shown by the context to be a mere expression of opinion or argumentative influence.”102 Statements of opinion may be couched in factual terms. Statements that expressly purport to be opinions are often understood to be statements of fact:“I believe he was murdered by his wife with an axe.”103 And statements often can be taken to be either fact or opinion: 101.See Aviation Charter, Inc. v. Aviation Research Grp./US, 416 F.3d 864, 868 (8th Cir. 2005) (“In analyzing a defamation claim [in which the question for the court was whether there was an actionable, false statement of fact], we mustconsiderthecontextwithinwhichthestatementwasmade.”)(citations omitted); Burns v. Davis, 196 Ariz. 155, 165, 993 P.2d 1119, 1129 (Ct. App. 1999) (citing Yetman v. English, 168 Ariz. 71, 76–79, 811 P.2d 323, 328–31 (1991)) (“The meaning of words and statements should not be construed in isolation; rather, consideration should be given to the context and all surrounding circumstances, including the impression created by the words used and the expression’s general tenor.”); Ballard v. Wagner, 2005 ME 86, ¶ 11, 877 A.2d 1083, 1087–88 (2005) (“totality of the circumstances”);see also cases cited at note 64,supra. 102.Mashburn v. Collin, 355 So. 2d 879, 885, 3 Media L. Rep. (BNA) 1673 (La. 1977) (citing GATLEY ON LIBEL AND SLANDER § 709 (6th ed. 1967)); see also Hammer v. City of Osage Beach, 318 F.3d 832, 842–43 (8th Cir. 2003) (Mo. law) (“The court must examine the totality of the circum- stances to determine whether the ordinary reader would have interpreted the statement as an opinion.”) (citation and internal quotation marks omitted); Gray v. St. Martin’s Press, Inc., 221 F.3d 243, 248–49 (1st Cir. 2000) (“Whether calling something a ‘fake’is or is not protected opinion depends very much on what is meant and therefore on context.”),cert. denied, 531 U.S. 1075 (2001); Bindrim v. Mitchell, 92 Cal. App. 3d 61, 155 Cal. Rptr. 29, 5 Media L. Rep. (BNA) 1113,cert. denied, 444 U.S. 984 (1979); Lynch v. N.J. Educ. Ass’n, 161 N.J. 152, 170, 735 A.2d 1129, 1137 (1999); Beattie v. Fleet Nat’l Bank, 746 A.2d 717, 728 (R.I. 2000). 103.“Every statement of opinion contains or implies some proposition of fact, just as every statement of fact has or implies an evaluative component.” Stevens v. Tillman, 855 F.2d 394, 398 (7th Cir. 1988) (Easterbrook, J.). Cf. Supreme Court’s example in Milkovich:“In my opinion John Jones is a liar.”Milkovich, 497 U.S. at 18. § 4:3.1Opinion 4 –31(Sack, 5th ed., 4/17) “She’s crazy ”;“Those men are robbers”;“That is dangerous.”In each case, a combination of custom and context determines the result. To illustrate, if the statement “John is a thief”is actionable when considered in its applicable context, the statement “I believe John is a thief ”would be equally actionable when placed in precisely the same context. By the same token, however, the assertion that “John is a thief ”could well be treated as an expression of opinion or rhetorical hyperbole where it is accompanied by other state- ments, such as “John stole my heart,”that, taken in context, convey to the reasonable reader that something other than an objective fact is being asserted. 104 Potentially defamatory statements in the guise of statements of fact uttered during a bitter political debate are particularly likely to be understood to be rhetorical opinion. 105 When uttered at a time of high emotion, such as personal grief, they are also likely to be understood as expressions of rage rather than assertions of fact. 106 A similar under- standing applies to statements made during the course of an ongoing public controversy 107 or a labor dispute. 108 In other words, 104.Gross v. N.Y. Times Co., 82 N.Y.2d 146, 155, 623 N.E.2d 1163, 1169, 603 N.Y.S.2d 813, 21 Media L. Rep. (BNA) 2142 (1993);see also Garrett v. Tandy Corp., 295 F.3d 94, 104 (1st Cir. 2002) (“[B]y ‘context’we mean such factors as the identity of the speaker, the identity of the audience, the circumstances in which the statement is made, and what else is said in the course of the conversation, and a myriad of other considerations.”). 105.Koch v. Goldway, 817 F.2d 507, 14 Media L. Rep. (BNA) 1213 (9th Cir. 1987) (opponent allegedly suggested to be Nazi war criminal); Arrington v. Palmer, 971 P.2d 669 (Colo. Ct. App. 1998); Pullum v. Edwin Mac Johnson & Faith Bible Coll., Inc., 647 So. 2d 254 (Fla. Dist. Ct. App. 1994) (broadcast reference to plaintiff proponent of legalized alcohol sales in county as “drug pusher ”is nonactionable rhetorical hyperbole); Mast v. Overson, 971 P.2d 928 (Utah Ct. App. 1998) (heated public debate about development of golf course); Hoppe v. Hearst Corp., 53 Wash. App. 668, 770 P.2d 203, 207, 16 Media L. Rep. (BNA) 2076 (1989) (satirical column during political campaign questioning plain- tiff ’s use of public funds to hire private detective protected). 106.Gonzalez v. Gray, 69 F. Supp. 2d 561 (S.D.N.Y. 1999),aff ’d, 216 F.3d 1072 (2d Cir. 2000) (table);see also Jorg v. Cincinnati Black United Front, 153 Ohio App. 3d 258, 792 N.E.2d 781 (2003) (assertion that plaintiff police officer had “killed”an African-American person who died in police custody, where officer had been tried but not convicted of killing, made in the course of activists’appeal for performers to boycott the city by whom officer was employed because of alleged police brutality, was hyperbole protected under Ohio’s categorical protection for opinion even though statement could reasonably be interpreted as a statement of fact). 107.Weyrich v. New Republic, 235 F.3d 617, 624, 29 Media L. Rep. (BNA) 1257 (D.C. Cir. 2001) (politics;cf. section 4:3.1[B],infra); Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 16 Media L. Rep. (BNA) 1113 (9th Cir.) (pornography),cert. denied, 493 U.S. 812 (1989); Baird v. Roussin, 6 Media L. Rep. (BNA) 1555 (D. Mass. 1980) (abortion). 108.Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S. 264 (1974); Steam Press Holdings, Inc. v. Haw. Teamsters Union, Local 996, 302 F.3d 998 (9th Cir. § 4:3.1 SACK ON DEFAMATION 4 –32 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. 109 It must be borne in mind, however, that the likely understanding of listeners to speech in a political or labor context is not the only factor at work in protecting such speech. Particular solicitude is given to protection of such speech as a matter of policy, in order to safeguard the political and labor bargaining processes. 110 If a statement appears in a place usually devoted to, or in a manner usually thought of as representing, personal viewpoints, it is also likely to be understood—and deemed by a court—to be nonactionable opinion.111 A letter to the editor, 112 for example, an editorial or 2002); Perruccio v. Arseneault, 7 Conn. App. 389, 508 A.2d 831, 12 Media L. Rep. (BNA) 2208 (1986);see also Guilford Transp. Indus. v. Wilner, 760 A.2d 580, 597–98 (D.C. 2000) (protection for op-ed piece about labor matters, relying on cases treating statements made by participants in labor disputes). 109.Gregory v. McDonnell Douglas Corp., 17 Cal. 3d 596, 601, 552 P.2d 425, 430, 131 Cal. Rptr. 641 (1976). This view has been repeated by California courts after Milkovich. See Rudnick v. McMillan, 25 Cal. App. 4th 1183, 31 Cal. Rptr. 2d 193, 22 Media L. Rep. (BNA) 2008 (1994). Note the observa- tion of a California court of appeal that the contents of Internet bulletin boards are not presumptively statements of opinion. Varian Med. Sys., Inc. v. Delfino, 113 Cal. App. 4th 273, 288–89, 6 Cal. Rptr. 3d 325, 337 (2003). 110.See section 4:3.4,infra. 111.See, e.g., Phantom Touring, Inc. v. Affiliated Publ’ns, 953 F.2d 724, 729, 19 Media L. Rep. (BNA) 1786 (1st Cir.),cert. denied, 504 U.S. 974 (1992) (“The sum effect of the format, tone and entire content of the articles [at issue] is to make it unmistakably clear that [the author] was expressing a point of view only. As such, the challenged language is immune from liability.”); Immuno A.G. v. Moor-Jankowski, 77 N.Y.2d 235, 254, 567 N.E.2d 1270, 566 N.Y.S.2d 906,cert. denied, 500 U.S. 954 (1991) (analysis should “begin[ ] by looking at the content of the whole commu- nication, its tone and apparent purpose”) (citing Steinhilber v. Alphonse, 68 N.Y.2d 283, 293, 508 N.Y.S.2d 901, 501 N.E.2d 550, 13 Media L. Rep. (BNA) 1562 (1986)). 112.Colodny v. Inverson, Yoakum, Papiano & Hatch, 936 F. Supp. 917 (M.D. Fla. 1996); Keohane v. Stewart, 882 P.2d 1293, 22 Media L. Rep. (BNA) 2545 (Colo. 1994),cert. denied, 513 U.S. 1127 (1995); Sall v. Barber, 782 P.2d 1216, 16 Media L. Rep. (BNA) 1700 (Colo. Ct. App. 1989); Haberstroh v. Crain Publ’ns, Inc., 189 Ill. App. 3d 267, 545 N.E.2d 295, 136 Ill. Dec. 771, 16 Media L. Rep. (BNA) 2423 (1989); Immuno A.G. v. Moor-Jankowski, 77 N.Y.2d 235, 567 N.E.2d 1270, 566 N.Y.S.2d 906, 18 Media L. Rep. (BNA) 1625,cert. denied, 500 U.S. 954 (1991). § 4:3.1Opinion 4 –33(Sack, 5th ed., 4/17) op-edcolumn113 orbroadcast,114 acartoon,115 acriticalparodyorsatireof a public person, 116 a sports column, 117 criticism on a radio talk show, 118 113.Ollman v. Evans, 750 F.2d 970, 11 Media L. Rep. (BNA) 1433 (D.C. Cir. 1984) (en banc),cert. denied, 471 U.S. 1127, 11 Media L. Rep. (BNA) 2015 (1985); Guilford Transp. Indus. v. Wilner, 760 A.2d 580 (D.C. 2000) (op-ed column); Aldoupolis v. Globe Newspaper Co., 398 Mass. 731, 500 N.E.2d 794, 13 Media L. Rep. (BNA) 1779 (1986); Garvelink v. Detroit News, 206 Mich. App. 604, 522 N.W.2d 883, 22 Media L. Rep. (BNA) 2503 (1994); Andrews v. Stallings, 119 N.M. 478, 892 P.2d 611 (Ct. App. 1995); Brian v. Richardson, 87 N.Y.2d 46, 660 N.E.2d 1126, 637 N.Y.S.2d 347, 24 Media L. Rep. (BNA) 1543 (1995) (op-ed page article); Gross v. N.Y. Times Co., 82 N.Y.2d 146, 156, 623 N.E.2d 1163, 603 N.Y.S.2d 813, 21 Media L. Rep. (BNA) 2142 (1993) (dicta); Ferreri v. Plain Dealer Publ’g Co., 142 Ohio App. 3d 629, 756 N.E.2d 712 (2001) (editorial); West v. Thomson Newspapers, 872 P.2d 999 (Utah 1994); Maynard v. Daily Gazette Co., 191 W. Va. 601, 447 S.E.2d 293, 22 Media L. Rep. (BNA) 2337 (1994). 114.Maholick v. WNEP TV, 20 Media L. Rep. (BNA) 1022 (M.D. Pa. 1992) (telecast with word “editorial”displayed). 115.Jewell v. NYP Holdings, Inc., 23 F. Supp. 2d 348, 385 (S.D.N.Y. 1998) (“[G]iven the inherent nature of a cartoon, a reasonable reader would view it as a statement of pure opinion not based on undisclosed facts.”); Ramunno v. Cawley, 705 A.2d 1029 (Del. 1998); Keller v. Miami Herald Publ’g Co., 778 F.2d 711, 12 Media L. Rep. (BNA) 1561 (11th Cir. 1985); Dworkin v. Hustler Magazine, Inc., 668 F. Supp. 1408, 14 Media L. Rep. (BNA) 1673 (C.D. Cal. 1987),aff ’d, 867 F.2d 1188, 16 Media L. Rep. (BNA) 1113 (9th Cir.),cert. denied, 493 U.S. 812 (1989); King v. Globe Newspaper Co., 400 Mass. 705, 512 N.E.2d 241, 14 Media L. Rep. (BNA) 1811 (1987),cert. denied, 485 U.S. 940 and 485 U.S. 962 (1988); Ferreri v. Plain Dealer Publ’g Co., 142 Ohio App. 3d 629, 756 N.E.2d 712 (2001); and cases cited in section 2:4.9, notes 252 and 253,supra. 116.Patrick v. Superior Court, 22 Cal. App. 4th 814, 27 Cal. Rptr. 2d 883, 22 Media L. Rep. (BNA) 1367,petition denied, opinion depublished (see chapter 5, note 413,infra), 1994 Cal. LEXIS 3284 (1994) (bogus letter on judge’s stationery intended to criticize judge); Garvelink v. Detroit News, 206 Mich. App. 604, 522 N.W.2d 883, 22 Media L. Rep. (BNA) 2503 (1994). 117.Fortson v. Colangelo, 434 F. Supp. 2d 1369 (S.D. Fla. 2006); Washington v. Smith, 893 F. Supp. 60 (D.D.C. 1995),aff ’d, 80 F.3d 555 (D.C. Cir. 1996); Hunter v. Hartman, 545 N.W.2d 699, 24 Media L. Rep. (BNA) 2004 (Minn. Ct. App. 1996) (sports broadcast). 118.See Gardner v. Martino, 563 F.3d 981, 988 (9th Cir. 2009) (“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.”). The Gardner court concluded that state- ments of the talk-show host based on “facts”asserted by an on-air telephone caller were protected statements of opinion: As we stated in [Partington v. Bugliosi, 56 F.3d 1147, 23 Media L. Rep. (BNA) 1929 (9th Cir. 1995)], when it is clear that the allegedly defamatory statement is “speculat[ion] on the basis of the limited § 4:3.1 SACK ON DEFAMATION 4 –34 or a critical review 119 are ordinarily not actionable, although this factor alone is by no means determinative. 120 There is substantial protection under these principles for humor and ridicule, generally. 121 The converse is also true. If a statement is published where a reader would expect assertions of fact because of the context, it is likely to be understood to be, and therefore be treated by a court as, an assertion of fact. Thus, the Second Circuit decided that a statement contained in a guide to lawyers and other professionals expert with respect to gender discrimination legal actions that “[a]t least one [person involved in such suits] has described [the defendant] as an ‘ambulance chaser ’ with interest only in ‘slam dunk cases,’”was an assertion of fact. 122 The court relied significantly on context:“Exaggerated rhetoric may be commonplace in labor disputes, but a reasonable reader would not expect similar hyperbole in a straightforward directory of attorneys facts available,”[id.] at 1156, it represents a non-actionable per- sonal interpretation of the facts.See id.;see also Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993) (“[I]f it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable.”). Id. at 988–89 (some brackets in original). 119.Mr. Chow v. Ste. Jour Azur S.A., 759 F.2d 219, 11 Media L. Rep. (BNA) 1713 (2d Cir. 1985) (restaurant review); Neumann v. Liles, 358 Or. 706, 369 P.3d 1117, 44 Media L. Rep. (BNA) 1433 (2016) (critical online review of wedding venue, captioned “Disaster!!!!! Find a different wedding venue.”); Pegasus v. Reno Newspapers, Inc., 57 P.3d 82, 31 Media L. Rep. (BNA) 1353 (Nev. 2002); Themed Rests., Inc. v. Zagat Survey, LLC, 4 Misc. 3d 974, 781 N.Y.S.2d 441, 32 Media L. Rep. (BNA) 1427 (Sup. Ct. N.Y. Cty. 2004),aff ’d, 21 A.D.3d 826, 801 N.Y.S.2d 38 (1st Dep’t 2005). 120.Defamatory allegations of fact may be contained in places ordinarily given over to opinion, such as a sports column, Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990); an editorial, Hinerman v. Daily Gazette Co., 188 W. Va. 157, 423 S.E.2d 560, 20 Media L. Rep. (BNA) 2169 (1992); commentary, Unelko Corp. v. Rooney, 912 F.2d 1049, 17 Media L. Rep. (BNA) 2317 (9th Cir. 1990),cert. denied, 499 U.S. 961 (1991); a letter to the editor, Wasserman v. Haller, 627 N.Y.S.2d 456 (2d Dep’t 1995); or an op-ed piece, Haas v. Gill, 527 So. 2d 368, 15 Media L. Rep. (BNA) 2323 (La. Ct. App. 1988); Brian v. Richardson, 87 N.Y.2d 46, 660 N.E.2d 1126, 637 N.Y.S.2d 347, 24 Media L. Rep. (BNA) 1543 (1995) (same; dicta). 121.See section 5:5.2[G][1],infra.The Supreme Court of New Jersey has noted, interestingly, that a statement made in an emotional outburst is likely not to be understood as an assertion of fact, and that this is particularly true if the outburst is “unrelated to the general topic of discussion”at the time. Ward v. Zelikovsky, 136 N.J. 516, 532, 643 A.2d 972, 980 (1994). 122.Flamm v. Am. Ass’n of Univ. Women, 201 F.3d 144, 28 Media L. Rep. (BNA) 1329 (2d Cir. 2000). § 4:3.1Opinion 4 –35(Sack, 5th ed., 4/17) and other professionals. Indeed the opposite is true.”123 The fact that the statement purported to be no more than the report of a single observer did not make it any less an assertion of fact. “[W]ith respect to the prefix ‘at least one [person],’it would not be unreasonable for a reader to believe that the [defendant] would not have printed such a statement without some factual basis and to conclude that the statement did indeed state facts about [the plaintiff].”124 Even if the context suggests a statement is opinion, it may be a statement of fact. Merely cloaking an allegation of fact in the garb of an opinion—“I think that Ernie had too much to drink”125—does not assure that it will not be held to state 126 or 123.Id. at 152. 124.Id. 125.[P]refacing a defamatory statement with the phrase “in my opinion” does not shield a defendant from liability, and the same is true for presenting a defamatory statement under a list of “concerns.” Prefatory language does not control whether these statements are actionable as defamation; what matters is whether the assertions included in the three disputed sentences are verifiably false. Republic Tobacco Co. v. N. Atl. Trading Co., 381 F.3d 717, 729 (7th Cir. 2004);see also Affolter v. Baugh Constr. Or., Inc., 183 Or. App. 198, 51 P.3d 642 (2002); Cianci v. New Times Publ’g Co., 639 F.2d 54, 64, 6 Media L. Rep. (BNA) 1625 (2d Cir. 1980) (it “would be destructive of the law of libel if a writer could escape liability for accusations [that he or she defamed the plaintiff] simply by using, explicitly or implicitly, the words ‘I think.’”);cf. Brennan v. Kadner, 814 N.E.2d 951, 958, 351 Ill. App. 3d 963, 969–70, 286 Ill. Dec. 725, 732 (2004) (“While it is true that simply prefacing a statement with qualifying language such as ‘I think,’ ‘I predict,’ or ‘I believe’will not convert a factual statement into constitutionally protected speech, literary, public, and social contexts are a major determi- nant of whether an ordinary reader would view an alleged defamatory statement as constituting fact or opinion.”) (citations omitted). 126.The example used by the Milkovich Court was: If a speaker says,“In my opinion John Jones is a liar,”he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. . . . Simply couching such statements in terms of opinion does not dispel these implications; and the statement,“In my opinion Jones is a liar,”can cause as much damage to reputation as the statement “Jones is a liar.” 497 U.S. at 18–19. Use of this example must be understood in the factual context of the case. The plaintiff in Milkovich had been accused of lying during the course of a judicial proceeding and therefore committing perjury. It was an unfortunate example, however, inasmuch as “lying”and “liar ”are fre- quently used as epithets, in a “loose and figurative sense and therefore nonactionable.”See, e.g., Cook v. Winfrey, 141 F.3d 322, 26 Media L. Rep. (BNA) 1586 (7th Cir. 1998) (whether “liar ”was allegation of fact a factual issue not resolvable on motion to dismiss); Liberty Lobby, Inc. v. Anderson, § 4:3.1 SACK ON DEFAMATION 4 –36 imply127 a provably false and therefore potentially actionable state- ment of fact. The distinction between an allegation of fact and expression of opinion . . . often depends on what is stated in the rest of the [communication]. If the defendant accurately states what some public man has really done, and then asserts that ‘such conduct is disgraceful,’this is merely [a nonactionable] expression of his opinion, his comment on the plaintiff ’s conduct. 128 There is no reason to believe that this observation is any less cogent in deciding what may be actionable now than it was before Milkovich.129 The District of Columbia, First, Second, and Ninth Circuits have engaged in particularly interesting post-Milkovich analyses. In Moldea v. New York Times Co.,130 a panel of the District of Columbia Circuit 746 F.2d 1563, 1573, 11 Media L. Rep. (BNA) 1001 (D.C. Cir. 1984), vacated on other grounds, 477 U.S. 242, 12 Media L. Rep. (BNA) 2297 (1986); Edwards v. Nat’l Audubon Soc’y, 556 F.2d 113, 121, 2 Media L. Rep. (BNA) 1849 (2d Cir.),cert. denied, 434 U.S. 1002 (1977); Indep. Living Aids, Inc. v. Maxi-Aids, Inc., 981 F. Supp. 124 (E.D.N.Y. 1997); Faltas v. State Newspaper, Inc., 928 F. Supp. 637, 24 Media L. Rep. (BNA) 2057 (D.S.C. 1996) (“liar ”as hyperbole); Morningstar, Inc. v. L.A. Superior Court, 23 Cal. App. 4th 676, 688, 29 Cal. Rptr. 2d 547, 22 Media L. Rep. (BNA) 1513 (1994) (reference to plaintiff mutual fund’s advertising in defendant’s article entitled “Lies, Damn Lies, and Fund Advertisements” not actionable because “in this context, the title conveyed the sense this was an article expressing an opinion about how statistics were manipulated not that the statistics themselves were false”); Piersall v. SportsVision of Chi., 230 Ill. App. 3d 503, 595 N.E.2d 103, 172 Ill. Dec. 40, 20 Media L. Rep. (BNA) 1223 (1992) (distinguishing Milkovich). The Ninth Circuit said: Reporters and historians routinely dispute the accuracy or truthful- ness of the statements of their sources when those statements conflict with the facts as the authors perceive them. We would severely limit the ability of such writers to explain fully many of the ramifications of crucial issues of public importance were we to allow them to be sued every time they suggested that one of their sources was being less than truthful in describing an incident that is discussed in the published work. Partington v. Bugliosi, 56 F.3d 1147, 23 Media L. Rep. (BNA) 1929 (9th Cir. 1995). 127.See section 4:3.2,infra. 128.Leers v. Green, 24 N.J. 239, 131 A.2d 781, 787 (1957) (quoting ODGERS, LIBEL AND SLANDER, at 166 (6th ed. 1929));see also Goodrich v. Waterbury Republican-Am., Inc., 188 Conn. 107, 448 A.2d 1317, 8 Media L. Rep. (BNA) 2329 (1982). 129.See Standing Comm. on Discipline v. Yagman, 55 F.3d 1430, 1441 & n.15 (9th Cir. 1995) (reaffirming validity post-Milkovich of RESTATEMENT (SECOND)OF TORTS § 566 (1977)). 130.Moldea v. N.Y. Times Co., 22 F.3d 310, 22 Media L. Rep. (BNA) 1673 (D.C. Cir.),cert. denied, 513 U.S. 875 (1994). § 4:3.1Opinion 4 –37(Sack, 5th ed., 4/17) reconsidered its own previous decision that the statement in a book review that there was “too much sloppy journalism in the book [being reviewed] to trust the bulk of this book’s 512 pages,”and two of five challenged examples taken from the book to support that claim, were actionable as implied statements of fact and statements of fact, respectively.131 The panel overruled itself on rehearing, deciding that it had unduly discounted the statements’context the first time around: the fact that it was in a book review. 132 The court observed that Milkovich133 holds that context is not determinative and that the fact that the statement at issue was in a book review therefore did not alone render it protected. But Milkovich does not suggest, let alone require, that context be ignored. 134 The court formulated and applied a context-based test: [W]hen a reviewer offers commentary that is tied to the work being reviewed, and that is a supportable interpretation of the author ’s work, that interpretation does not present a verifiable issue of fact that can be actionable in defamation. 135 It is crucial that the commentary be supportable with reference to the work: 136 [A] critic’s interpretation must be rationally supportable by refer- ence to the actual text he or she is evaluating, and [this standard] thus would not immunize situations analogous to that presented in Milkovich, in which a writer launches a personal attack, rather than interpreting a book. [137 ]. . . A critic’s statement must be a 131.Moldea v. N.Y. Times Co., 15 F.3d 1137, 22 Media L. Rep. (BNA) 1321, modified on reh’g, 22 F.3d 310, 22 Media L. Rep. (BNA) 1673 (D.C. Cir.), cert. denied, 513 U.S. 875 (1994). 132.Moldea, 22 F.3d at 314 (citing Phantom Touring, Inc. v. Affiliated Publ’ns, 953 F.2d 724, 729 n.9, 19 Media L. Rep. (BNA) 1786 (1st Cir.),cert. denied, 504 U.S. 974 (1992)). 133.Milkovich v. Lorain Journal Co., 497 U.S. 1, 17 Media L. Rep. (BNA) 2009 (1990). 134.Moldea, 22 F.3d at 313–15. The court made reference to the importance of context “because it is in part the settings of the speech in question that makes [its] . . . nature apparent, and which helps determine the way in which the intended audience will receive [it].”Id. at 314 (emphasis in original). 135.Id. at 313. 136.Id. 137.The court distinguished the allegation by the sports columnist in Milkovich, that the plaintiff had lied under oath, from the Moldea facts. The assertion in Milkovich, that the plaintiff had perjured himself, was not protected because it was not tied to and supported by reference to the events being described, a wrestling meet and its aftermath. Judge Edwards pointed out that had the book reviewer in Moldea falsely alleged that the book “was . . . badly written because its author was a drug dealer,”the review similarly would have been actionable.Id. at 315.“[T]he § 4:3.1 SACK ON DEFAMATION 4 –38 rational assessment or account of something the reviewer can point to in the text, or omitted from the text, being critiqued. 138 Applying this test, the court concluded that “too much sloppy journalism,”supported by at least four of the five challenged examples from the book used in the review, could not be actionable. It would be understood to be opinion, was tied to the book, and constituted a supportable interpretation of the work. Judge Edwards’s opinion for the court is about criticism.“There is a long and rich history in our cultural and legal traditions,”he said,“of affording reviewers latitude to comment on literary and other works.”139 But the standard he employed, based as it is on the proper method to analyze opinion in its context rather than simply the nature or history of criticism, is not limited to criticism. 140 It has implica- tions that go well beyond it. It may be useful to posit a post-Moldea standard generalized to state that (1) when an allegedly defamatory statement, in its particular context (for example, editorial, op-ed piece, sports column, review, or television commentary), would be expected to be opinion, (2) it is protected so long as (a) it is “tied to”the work or event being reviewed or commented upon and (b) it is a supportable interpretation of the work or event. 141 Partington v. Bugliosi 142 was rather more routine. It dealt with a lawyer ’s memoir about one of his cases, later turned into a “docu- drama”broadcast by a television network. The lawyer had successfully reviewer would simply be employing the medium of a book review as a vehicle for what would be a garden-variety libel . . . .”Id. Had the sports columnist-defendant in Milkovich, on the other hand, accused the plaintiff of being an inadequate or unsuccessful wrestling coach rather than a perjurer, that assertion in the context of sports journalism presumably would have fulfilled the Moldea test (assuming only that it constituted a “supportable interpretation”of the events being commented upon) and the column would therefore have been protected. 138.Id. at 315 (emphasis in original). 139.Id. 140.Judge Edwards indicated that he thought the analysis went beyond literary and similar criticism by explaining its consistency with “situations analo- gous to that presented in Milkovich”which concerned statements by a sports columnist, not a book reviewer.Id. 141.See Hunter v. Hartman, 545 N.W.2d 699, 24 Media L. Rep. (BNA) 2004 (Minn. Ct. App. 1996) (similar analysis for interpretation of sportscaster ’s criticism of performance of former college team physician). This analysis bypasses reliance on N.Y. Times Co. v. Sullivan’s “actual malice”test. It therefore may require meritless cases to be disposed of early in the litigation process, before discovery into the state of mind of the defendant necessary to permit a court to address the “actual malice” question has begun. 142.Partington v. Bugliosi, 56 F.3d 1147, 23 Media L. Rep. (BNA) 1929 (9th Cir. 1995). § 4:3.1Opinion 4 –39(Sack, 5th ed., 4/17) represented a defendant in a celebrated murder case; the plaintiff, in a separate trial, had unsuccessfully defended a man accused of the same crime. Not surprisingly, the first lawyer portrayed himself in compli- mentary terms; not so his comments about the plaintiff ’s perfor- mance. The plaintiff alleged that the book and docudrama accused him of incompetence. The Ninth Circuit held it was merely critical opinion and therefore nonactionable. The court employed an analysis drawn from its earlier opinion in Unelko. [W]e examine [a] the work as a whole, [b] the specific context in which the statements were made, and [c] the statements them- selves to determine whether a reasonable factfinder could conclude that the statements imply a false assertion of objective fact and therefore fall outside of the protection of the First Amendment. 143 As for the “work as a whole,”the court concluded that the author ’s observations in a book based on his own participation in a trial, itself subject to any number of varying interpretations, would be recognized by the reader as “the highly subjective opinions of the author rather than assertions of verifiable, objective facts.”144 When, as here, an author writing about a controversial occurrence fairly describes the general events involved and offers his personal perspective about some of its ambiguities and disputed facts, his statements should generally be protected by the First Amendment. Otherwise, there would be no room for expressions of opinion by 143.Id. at 1153 (citing Unelko Corp. v. Rooney, 912 F.2d 1049, 17 Media L. Rep. (BNA) 2317 (9th Cir. 1990),cert. denied, 499 U.S. 961 (1991)) (bracketed letters added);accord Neumann v. Liles, 358 Or. 706, 718–19, 369 P.3d 1117, 1124–25, 44 Media L. Rep. (BNA) 1433 (2016) (relying on and quoting Partington, 56 F.3d at 1153). This tripartite method of examination is, of course, very close to the four-part test set forth in Ollman v. Evans, 750 F.2d 970, 979, 11 Media L. Rep. (BNA) 1433 (D.C. Cir. 1984) (en banc),cert. denied, 471 U.S. 1127, 11 Media L. Rep. (BNA) 2015 (1985), which had ostensibly been rejected by the Supreme Court in Milkovich. See section 4:2.3[B],supra. 144.Partington, 56 F.3d at 1154;see also Weiner v. San Diego County, 210 F.3d 1025, 1031 (9th Cir. 2000) (statement after acquittal in a retried case by the losing prosecutor that “this just proves that cases, unlike fine wine, get worse rather than better, with age”protected opinion); Kaminske v. Wis. Cent. Ltd., 102 F. Supp. 2d 1066, 1080 (E.D. Wis. 2000) (statement by spokesman for defendant that he was disappointed in verdict for plaintiff protected opinion); Ferlauto v. Hamsher, 74 Cal. App. 4th 1394, 88 Cal. Rptr. 2d 843, 27 Media L. Rep. (BNA) 2364 (1999) (reference to plaintiff as “creepazoid attorney ”and “loser wannabe lawyer ”); Thacker v. City of Hyattsville, 135 Md. App. 268, 313, 762 A.2d 172, 196 (2000) (“In Maryland, when a statement is made in the form of an opinion, it becomes actionable ‘only if it implies the allegation of undisclosed facts as the basis for the opinion.’”) (citation omitted). § 4:3.1 SACK ON DEFAMATION 4 –40 commentators, experts in a field, figures closely involved in public controversy, or others whose perspectives might be of interest to the public. 145 The court had no trouble reaching the same result with respect to the book-based docudrama. We believe that viewers in this case would be sufficiently familiar with this genre to avoid assuming that all statements within them represent assertions of verifiable facts. 146 Employing the second part of the test, the court reviewed each particular statement complained of to see whether it implied provably false assertions of fact. 147 Each one, the court concluded, was clearly the author ’s personal opinion. 148 Because the facts were set forth, moreover, the reader would understand that they were meant to be opinion. 149 Last, the court reexamined the challenged statements to determine whether they were capable of being proved false. 150 The court found one lawyer ’s criticism of another ’s performance in court generally— and this lawyer ’s criticism of the plaintiff ’s defense of his client in particular—to be subjective statements not provably true or false. The court therefore concluded on this basis, too, that the alleged libels were nonactionable. 151 On this score, the Ninth Circuit relied on pre-Milkovich case law, observing that Milkovich “does not disturb the long-standing rule that statements on matters of public concern, at least when media defendants are involved, are absolutely protected if they are not susceptible of being proved true or false.”152 In Levin v. McPhee,153 a well-known author had written a book about a collector of avant garde Soviet art. It contained a chapter treating the mysterious death of an artist in a fire in his Leningrad studio. It included five speculative accounts of how he may have died, some of them implicating both the K.G.B. and the plaintiff. Because the accounts were mere speculation based on disclosed facts, the 145.Partington, 56 F.3d at 1154. 146.Id. at 1155. 147.Comparable to the first part of the Ollman test:“the common usage or meaning of the specific language of the challenged statement itself.” Ollman, 750 F.2d at 979. 148.Partington, 56 F.3d at 1156 (citing Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227, 21 Media L. Rep. (BNA) 2161 (7th Cir. 1993)). 149.Id. at 1156–57.See section 4:3.2,infra. 150.Comparable to the second part of the Ollman test: verifiability.Ollman, 750 F.2d at 979. 151.Partington, 56 F.3d at 1157–58. 152.Id. at 1158, n.16 (citing Milkovich, 497 U.S. at 21);see also Fuste v. Riverside Healthcare Ass’n, Inc., 265 Va. 127, 133, 575 S.E.2d 858, 861–62 (2003) (similar). 153.Levin v. McPhee, 119 F.3d 189 (2d Cir. 1997). § 4:3.1Opinion 4 –41(Sack, 5th ed., 4/17) Second Circuit held they were nonactionable opinion and dismissed the case. It relied on the New York Court of Appeals’interpretation of its state constitution, although the same result could well have been reached under post-Milkovich federal constitutional law. 154 Though the overall content of the book generally informs the reader that the book describes factual and historical accounts of real events, McPhee uses a number of clear signals to indicate to the reader that the versions of the events surrounding the studio fire were nothing more than conjecture and speculation. * * * [A] reasonable reader would understand that any allegations of murder, especially any implicating [the plaintiff], are nothing more than conjecture and rumor. 155 Finally, in Riley v. Harr,156 the First Circuit addressed allegedly defamatory statements in the best-selling nonfiction book A Civil Action about the plaintiff, whose tannery may have contributed to the pollution that was the subject of the “civil action.”The court, in a wide-ranging discussion of protection for opinion, concluded that the statements in issue were privileged, partly because they reported speculation of others and partly because they contained the author ’s own speculation based on an accurate description of facts that invited the book’s readers to come to their own conclusions as to whether the speculation was correct. For example, the assertion that the plaintiff had lied in a deposition was protected both because it was a report of a lawyer ’s “inner musings about the evidence he was gathering,”157 and because, even if the views were those of the author, the book “‘not only discussed . . . the facts underlying [Harr ’s] views but also gave information from which readers might draw contrary conclusions.’”158 154.Id. at 196–97. 155.Id. at 197;see also Gray v. St. Martin’s Press, Inc., 221 F.3d 243, 250 (1st Cir. 2000) (“Here, the statement may be protected ‘opinion’not because it is vague or judgmental but because it is speculative. The test, admittedly a very crude one, is whether the statement is properly understood as purely speculation or, alternatively, implies that the speaker or writer has concrete facts that confirm or underpin the truth of the speculation.”) (citing, inter alia,Levin),cert. denied, 531 U.S. 1075 (2001);cf. Howard v. Antilla, 294 F.3d 244, 30 Media L. Rep. (BNA) 1936 (1st Cir. 2002) (holding that detailed discussion of the possible truth or falsity of a defamatory rumor about a public figure was not made with “actual malice”);accord Kinzel v. Discovery Drilling, Inc., 93 P.3d 427, 440 (Alaska 2004) (quoting Gray). 156.Riley v. Harr, 292 F.3d 282, 30 Media L. Rep. (BNA) 1961 (1st Cir. 2002). 157.Id. at 291. 158.Id. at 292 (quoting Phantom Touring, Inc. v. Affiliated Publ’ns, 953 F.2d 724, 730, 19 Media L. Rep. (BNA) 1786 (1st Cir.),cert. denied, 504 U.S. 974 (1992) (alteration in original)). § 4:3.1 SACK ON DEFAMATION 4 –42 What if the defendant intends to state an opinion but a reasonable reader could understand the statement to be an allegation of fact? This situation commonly arises in the context of satire or parody when the recipient, or hypothetical “reasonable recipient,”of the communica- tion just does not or would not “get it.”If the plaintiff is a public figure or public official, even an attempted but unsuccessful parody should be protected in light of the plaintiff ’s inability to establish “actual malice”—that the defendant had the requisite knowledge that what was said, as he or she understood it, was false. 159 [B] Political Expression Protection for statements of opinion must be applied in light of the justifications for protecting them. Debate about matters of public importance is itself of public importance. 160 Freedom to comment, particularly in the arena of politics, is encouraged as a matter of policy,161 and such protection is “indispensable to the exercise of free- dom.”162 On balance,“[t]he social values inherent in a free interchange of opinion far outweigh the injury which such discussion might cause to a person in the public eye.”163 Courts have therefore been particularly assiduous in using protec- tions given opinion by common and constitutional law as tools to shelter strong, even outrageous, political speech. 164 Courts have been willing to read political invective as part of the political process and therefore worthy of unusually strong protection. The result is also 159.See section 5:5.2[G],infra. 160.Both under the common law, Beauharnais v. Pittsburgh Courier Publ’g Co., 243 F.2d 705, 708 (7th Cir. 1957); A.S. Abell Co. v. Kirby, 227 Md. 267, 176 A.2d 340, 342, 90 A.L.R.2d 1264 (1961) (citing HARPER & JAMES, THE LAW OF TORTS § 525 (1956)); PROSSER ON TORTS 607 (2d ed. 1955); Edmonds v. Delta Democrat Publ’g Co., 230 Miss. 583, 93 So. 2d 171, 173 (1957), and under constitutional principles, N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964). 161.See Ollman v. Evans, 750 F.2d 970, 11 Media L. Rep. (BNA) 1433 (D.C. Cir. 1984) (en banc) (Bork, J., concurring),cert. denied, 471 U.S. 1127, 11 Media L. Rep. (BNA) 2015 (1985). 162.Julian v. Am. Bus. Consultants, Inc., 2 N.Y.2d 1, 137 N.E.2d 1, 155 N.Y.S.2d 1 (1956) (common-law principles). 163.Fisher v. Wash. Post Co., 212 A.2d 335, 337 (D.C. 1965);see also Sweeney v. Patterson, 128 F.2d 457 (D.C. Cir.),cert. denied, 317 U.S. 678 (1942) (common-law principles); Pearson v. Fairbanks Publ’g Co., 413 P.2d 711, 713 (Alaska 1966). 164.See, e.g., Weyrich v. New Republic, 235 F.3d 617, 624–25, 29 Media L. Rep. (BNA) 1257 (D.C. Cir. 2001) (fact that statement that plaintiff was “paranoid”was about person devoted to partisan politics and appeared in “a magazine of political commentary ”part of analysis in deciding that term was “rhetorical sophistry ”); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 14 Media L. Rep. (BNA) 2281 (1988); Greenbelt Coop. Publ’g § 4:3.1Opinion 4 –43(Sack, 5th ed., 4/17) justified on the basis that the ordinary reader or listener will, in the context of political debate, assume that vituperation is some form of political opinion neither demonstrably true nor demonstrably false. 165 [C] Criticism The law is particularly solicitous of criticism—artistic, literary, gustatory, and other. Although such protection stands on no different doctrinal footing from protection for nonfactual opinion generally, criticism is given particular breathing room because of its role in intellectual, social, and political life and its history. 166 Ass’n v. Bresler, 398 U.S. 6 (1970); Koch v. Goldway, 817 F.2d 507, 14 Media L. Rep. (BNA) 1213 (9th Cir. 1987); Buckley v. Littell, 539 F.2d 882 (2d Cir. 1976),cert. denied, 429 U.S. 1062 (1977); Thomas v. News World Commc’ns, 681 F. Supp. 55, 15 Media L. Rep. (BNA) 1065 (D.D.C. 1988); Scott v. McDonnell Douglas Corp., 37 Cal. App. 3d 277, 112 Cal. Rptr. 609 (1974); Maag v. Ill. Coal. for Jobs, 368 Ill. App. 3d 844, 858 N.E.2d 967, 306 Ill. Dec. 909 (2006) (critical statements about candidate for appellate judgeship); Meridian Star, Inc. v. Williams, 549 So. 2d 1332, 16 Media L. Rep. (BNA) 2446 (Miss. 1989); Julian v. Am. Bus. Consul- tants, Inc., 2 N.Y.2d 1, 137 N.E.2d 1, 155 N.Y.S.2d 1 (1956); Kilcoyne v. Plain Dealer Publ’g Co., 112 Ohio App. 3d 229, 678 N.E.2d 581 (1996); Clark v. Allen, 415 Pa. 484, 204 A.2d 42 (1964);cf. Ollman v. Evans, 750 F.2d 970, 1002, 11 Media L. Rep. (BNA) 1433 (D.C. Cir. 1984) (en banc) (Bork, J., concurring) (arguing that those who enter political arena must accept rough and personal debate in order to protect a vigorous market- place of ideas),cert. denied, 471 U.S. 1127, 11 Media L. Rep. (BNA) 2015 (1985); Seith v. Chi. Sun-Times, Inc., 371 Ill. App. 3d 124, 137–38, 861 N.E.2d 1117, 1129, 35 Media L. Rep. (BNA) 1630 (2007) (commenting, in applying the Illinois innocent construction rule, that “[a]lthough the fact that a statement is made as part of a political campaign is not an absolute defense against libel . . . , we note that when construing the meaning and value of a comment, one must consider the context, including the public and social context of rhetoric uttered during a political campaign”); Nev. Indep. Broad. Corp. v. Allen, 99 Nev. 404, 664 P.2d 337, 37 A.L.R.4th 1070, 9 Media L. Rep. (BNA) 1769 (1983) (dicta) (“In cases involving political comment, there is a strong inclination to determine the remarks to be opinion rather than fact.”); George v. Fabri, 345 S.C. 440, 455, 548 S.E.2d 868, 875 (2001) (“Th[e] value [of the right to ‘elect[ ] the members of government’] must be protected with special vigilance.”) (citation omitted); West v. Thomson Newspapers, 872 P.2d 999, 1019 (Utah 1994) (“Courts are much more likely to construe statements as opinion when they are made by participants in, and people who comment on, political campaigns.”) (citations omitted). 165.See also sections 2:4.7 and 4:3.1[A],supra. 166.See, e.g., Moldea v. N.Y. Times Co., 22 F.3d 310, 22 Media L. Rep. (BNA) 1673 (D.C. Cir.),cert. denied, 513 U.S. 875 (1994) (book); Mr. Chow v. Ste. Jour Azur S.A., 759 F.2d 219, 11 Media L. Rep. (BNA) 1713 (2d Cir. 1985) (restaurant); Fisher v. Wash. Post Co., 212 A.2d 335, 337 (D.C. 1965) (art). § 4:3.1 SACK ON DEFAMATION 4 –44 Thus, for example, while Moldea v. New York Times Co. 167 suggests a broad rule for opinion, 168 its prescription for criticism is specific: There is a long and rich history in our cultural and legal traditions of affording reviewers latitude to comment on literary and other works. . . . While a bad review necessarily has the effect of injuring an author ’s reputation to some extent—sometimes to a devastat- ing extent . . . criticism’s long and impressive pedigree persuades us that, while a critic’s latitude is not unlimited, he or she must be given the “breathing space”appropriate to the genre. . . . “The proper analysis would make commentary actionable only when the interpretations are unsupportable by reference to the written work.”This “supportable interpretation”standard pro- vides that a critic’s interpretation must be rationally supportable by reference to the actual text he or she is evaluating, and thus would not immunize situations . . . in which a writer launches a personal attack, rather than interpreting a book. 169 An author, athlete, or performer is likely to complain that a negative review injured him or her in his or her business, profession, or trade. But so long as the statement is directed to the work-product or performance, it is not actionable. A false allegation of fact about the author, athlete, or performer rather than the work, however, remains potentially actionable. 170 The Fourth Circuit has applied this approach to breezy critiques of the values of publicly traded securities. 171 While eschewing a “‘doctrinal exemption’”for such articles, the court said that “rarely would [such] a[n] article . . . prove actionable.”172 [D] The Internet In the same vein, some courts have recognized that Internet-borne communications, in the form of blogs, social media postings, reader- posted comments on established news sites, and the like, are fre- quently used as vehicles for often hyperbolic personal opinions. As a California court of appeal observed,“[n]ot only commentators, but courts as well have recognized that online blogs and message boards are places where readers expect to see strongly worded opinions rather 167.Moldea v. N.Y. Times Co., 22 F.3d 310, 22 Media L. Rep. (BNA) 1673 (D.C. Cir.),cert. denied, 513 U.S. 875 (1994). 168.See section 4:3.1[A],supra. 169.Moldea, 22 F.3d at 315 (citations omitted; emphasis in original). 170.Id. 171.Biospherics, Inc. v. Forbes, Inc., 151 F.3d 180 (4th Cir. 1998). 172.Id. at 184 (quoting Moldea v. N.Y. Times Co., 15 F.3d 1137, 1146, 22 Media L. Rep. (BNA) 1321,modified in part on reh’g, 22 F.3d 310, 22 Media L. Rep. (BNA) 1673 (D.C. Cir.),cert. denied, 513 U.S. 875 (1994)). § 4:3.1Opinion 4 –45(Sack, 5th ed., 4/17) than objective facts.”173 Similarly, the New York appellate division opined that these media “encourage a freewheeling, anything-goes writing style,”and that “readers give less credence to allegedly defa- matory remarks published on the Internet than to similar remarks made in other contexts.”174 A judge in the U.S. District Court for the Southern District of New York specifically noted the familial relationship between the protection given for statements made on these Internet vehicles and that more generally available for communications in “‘place[s] usually devoted to, or in a manner usually thought of as representing personal viewpoints . . . .’”175 [E] Academic Debate Although opinion generally receives constitutional protection based on the argument that it is incapable of being proved true or false, in some cases it might be more accurate to say that courts ought not determine truth or falsity rather than that they cannot.It may be, for example, that whether the chemical “alar ”causes cancer, 176 or whether there was a gunman on the “grassy knoll,”177 could be decided by courts in the same manner that they decide other complex factual issues. The more meaningful question may be whether they should be. Judge Easterbrook commented that: 173.Summit Bank v. Rogers, 206 Cal. App. 4th 669, 697, 142 Cal. Rptr. 3d 40, 60 (2012). The court quoted Krinsky v. Doe 6, 159 Cal. App. 4th 1154, 1162, 72 Cal. Rptr. 3d 231 (2008), for the proposition that “[t]he use of a pseudonymous screen name offers a safe outlet for the user to experiment with novel ideas, express unorthodox political views, or criticize corporate or individual behavior without fear of intimidation or reprisal.”And it quoted Glob. Telemedia Int’l, Inc. v. John Doe 1, 132 F. Supp. 2d 1261, 1267, 29 Media L. Rep. (BNA) 1385 (C.D. Cal. 2001), for its observation that Internet postings “are full of hyperbole, invective, short-hand phrases and language not generally found in fact-based documents, such as corpo- rate press releases or SEC filings.”Summit Bank, 206 Cal. App. 4th at 697; see also Bently Reserve LP v. Papaliolios, 218 Cal. App. 4th 418, 429, 218 Cal. App. 4th 418, 426–27 (2013) (collecting cases). 174.SandalsResortsInt’l,Ltd.v.Google, Inc.,86 A.D.3d32,43–44,925N.Y.S.2d 407, 415–16 (1st Dep’t 2011). 175.Couloute v. Ryncarz, 2012 U.S. Dist. LEXIS 20534, at *17, *20, 2012 WL 541089, at *5, *6 (S.D.N.Y. 2012) (quoting this treatise at section 4:3.1[A], supra; Judge Baer also relied on and quoted Sandals).But see Varian Med. Sys., Inc. v. Delfino, 113 Cal. App. 4th 273, 288–89, 6 Cal. Rptr. 3d 325, 337 (2003) (opining that the contents of Internet bulletin boards are not presumptively statements of opinion). 176.See Auvil v. CBS “60 Minutes,”836 F. Supp. 740, 21 Media L. Rep. (BNA) 2059 (E.D. Wash. 1993),cert. denied, 517 U.S. 1167 (1996). 177.See Groden v. Random House, Inc., 1994 U.S. Dist. LEXIS 11794, 1994 WL 455555, 22 Media L. Rep. (BNA) 2257 (S.D.N.Y. 1994),aff ’d, 61 F.3d 1045, 23 Media L. Rep. (BNA) 2203 (2d Cir. 1995); section 3:12,supra. § 4:3.1 SACK ON DEFAMATION 4 –46 Scientific controversies must be settled by the methods of science rather than by the methods of litigation. More papers, more discussion, better data, and more satisfactory models—not larger awards of damages—mark the path toward superior understand- ing of the world around us. 178 The observation is as applicable to historical controversy as it is to scientific dispute. In Groden v. Random House, Inc.,179 the court addressed a claim based on an advertisement for the book about the assassination of President Kennedy,Case Closed, which contained pictures of well-known conspiracy theorists, including the plaintiff, under the heading:“GUILTY OF MISLEADING THE AMERICAN PUBLIC.”The plaintiff sued, not for defamation, but on a variety of false advertising and invasion of privacy theories. Summary judgment was granted against him. The court held that the statement was to be treated as protected opinion because the facts of the assassination are unverifiable. [T]he known evidence concerning the Kennedy assassination and the extensive debate over the Warren Commission’s findings demonstrate that the actual facts will never be verifiable to every- body ’s satisfaction. * * * The assassination of President Kennedy has engendered a lively marketplace of competing theories. The fact that books advocating different views of this tragic event in American history continue to be published and promoted by persons such as plaintiff and the defendants is proof of the viability of that marketplace. As the Supreme Court has noted,“Under the First Amendment, there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.”The public 178.Underwager v. Salter, 22 F.3d 730, 736, 22 Media L. Rep. (BNA) 1852 (7th Cir.) (citation omitted),cert. denied, 513 U.S. 943 (1994);accord Under- wager v. Dudley, 75 F.3d 307 (7th Cir. 1996);see also Ezrailson v. Rohrich, 65 S.W.3d 373, 381–82 (Tex. App. 2001).Ezrailson held that an article employing erroneous analysis while questioning efficacy of plaintiff ’s medical test was not actionable because defendant’s “hypothesis was shown to be incorrect;‘and that in itself is an advance.’”Id. at 382 (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993)).“[I]n the area of medical science research, criticism of the creative research ideas of other medical scientists should not be restrained by fear of a defamation claim in the event the criticism itself also ultimately fails for lack of merit. [The possibility of liability] would serve to unduly restrict the free flow of ideas essential to medical science discourse.”Id. 179.Groden v. Random House, Inc., 1994 U.S. Dist. LEXIS 11794, 1994 WL 455555, 22 Media L. Rep. (BNA) 2257 (S.D.N.Y. 1994),aff ’d, 61 F.3d 1045, 23 Media L. Rep. (BNA) 2203 (2d Cir. 1995). § 4:3.1Opinion 4 –47(Sack, 5th ed., 4/17) interest in “uninhibited, robust, and wide-open”debate on public issues, is best served by allowing free competition between propo- nents of conflicting accounts of the Kennedy assassination, not by stifling it in the name of truth in advertising. 180 § 4:3.2 Relationship Between Opinion and Underlying Facts In a majority of jurisdictions, at common law, in order to rely on fair-comment protection, the defendant was required to set forth in the publication at issue the facts forming the basis for an opinion, unless they were widely known or available in the community. Otherwise, the opinion would lose its protection. 181 Irrespective of whether they need be stated, however, statements of underlying fact may be helpful to provide the context for understanding an opinion to be an opinion. 182 To describe a woman as a blackmailer, for example, might be to accuse her of a crime. But if there is first set forth an account of the underlying facts, a description of her dealings with a municipal agency relating to zoning negotiations, it becomes clear that the statement is but a hyperbolic form of opinion. Whether analyzed as hyperbole or as a statement not provably false, the comment is not actionable. 183 To say that a man is “insane”may be defamatory; but to explain first that he, a political newcomer, is planning a campaign against the most 180.Id., 1994 U.S. Dist. LEXIS 11794, at *21, *28–29, 1994 WL 455555, at *6, *9 (citations omitted). 181.See section 4:4.2,infra. 182.See Partington v. Bugliosi, 56 F.3d 1147, 23 Media L. Rep. (BNA) 1929 (9th Cir. 1995); Phantom Touring, Inc. v. Affiliated Publ’ns, 953 F.2d 724, 730–31, 19 Media L. Rep. (BNA) 1786 (1st Cir.),cert. denied, 504 U.S. 974 (1992) (criticism protected because facts both disclosed and publicly available); Ollman v. Evans, 750 F.2d 970, 11 Media L. Rep. (BNA) 1433 (D.C. Cir. 1984) (en banc) (presence of facts may suggest contested statement is only opinion),cert. denied, 471 U.S. 1127, 11 Media L. Rep. (BNA) 2015 (1985). 183.See Greenbelt Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6 (1970),reaffirmed in Milkovich v. Lorain Journal Co., 497 U.S. 1, 16, 17 Media L. Rep. (BNA) 2009 (1990);see also Gold v. Harrison, 88 Haw. 94, 962 P.2d 353, 26 Media L. Rep. (BNA) 2313 (1998) (calling judicial proceedings with adverse results “rape”not actionable); Nat’l Ass’n of Gov ’t Emps. v. Cent. Broad. Corp., 379 Mass. 220, 396 N.E.2d 996, 5 Media L. Rep. (BNA) 2078 (1979) (referring to plaintiff as communist is protected where basis for opinion, that plaintiff union warned person not to speak, was explicitly stated),cert. denied, 446 U.S. 935 (1980); Gross v. N.Y. Times Co., 82 N.Y.2d 146, 154, 623 N.E.2d 1163, 1168, 603 N.Y.S.2d 813, 21 Media L. Rep. (BNA) 2142 (1993) (“a proffered hypothesis that is offered after a full recitation of the facts on which it is based is readily understood by the audience as conjecture”). § 4:3.2 SACK ON DEFAMATION 4 –48 popular politician in the county makes it clear that “insanity ”reflects no more than the speaker ’s view of the candidate’s judgment or chances of success. The statement is hyperbolic and is not demonstrably false. Similarly, both at common law and under constitutional principles, even when a statement of opinion is not explicitly defamatory, especially if it lacks an accurate statement of the facts upon which it is based, it may be understood to imply inaccurate allegations of fact that are defamatory. 184 “Liability for libel may attach . . . when a negative characterization of a person is coupled with a clear but false implication that the author is privy to facts about the person that are unknown to the general reader.”185 On the other hand: When the facts underlying a statement of opinion are disclosed, readers will understand they are getting the author ’s interpretation of the facts presented; they are therefore unlikely to construe the 184.See Burns v. McGraw-Hill Broad. Co., 659 P.2d 1351, 9 Media L. Rep. (BNA) 1257 (Colo. 1983); Wiemer v. Rankin, 117 Idaho 566, 790 P.2d 347, 17 Media L. Rep. (BNA) 1753 (1990); Yancey v. Hamilton, 786 S.W.2d 854, 17 Media L. Rep. (BNA) 1012 (Ky. 1989); Mashburn v. Collin, 355 So. 2d 879, 885, 3 Media L. Rep. (BNA) 1673 (La. 1977); A.S. Abell Co. v. Kirby, 227 Md. 267, 176 A.2d 340, 343, 90 A.L.R.2d 1264 (1961); New York v. Grasso, 21 A.D.3d 851, 801 N.Y.S.2d 584 (1st Dep’t 2005); Lubin v. Kunin, 17 P.3d 422, 426 (Nev. 2001) (per curiam); Gross v. N.Y. Times Co., 82 N.Y.2d 146, 153–54, 623 N.E.2d 1163, 603 N.Y.S.2d 813, 21 Media L. Rep. (BNA) 2142 (1993); Trustco Bank of N.Y. v. Hearst Corp., 213 A.D.2d 940, 627 N.Y.S.2d 456 (3d Dep’t 1995); Healey v. New Eng. Newspapers, Inc., 555 A.2d 321, 16 Media L. Rep. (BNA) 1753 (R.I.),cert. denied, 493 U.S. 814 (1989); RESTATEMENT (SECOND)OF TORTS § 566 (1977). Opinions implying facts are sometimes referred to as “mixed opin- ions,”see, e.g., Lubin v. Kunin, 17 P.3d 422, 426 (Nev. 2001) (per curiam); Davis v. Boeheim, 24 N.Y.3d 262, 267, 22 N.E.3d 999, 1003, 998 N.Y.S.2d 131, 135 (2014) (“[A]n opinion that implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, is a ‘mixed opinion’and is actionable.”) (brackets and some internal quotation marks omitted); Trustco Bank of N.Y. v. Hearst Corp., 213 A.D.2d 940, 627 N.Y.S.2d 456 (3d Dep’t 1995); Polish Am. Immigration Relief Comm., Inc. v. Relax, 189 A.D.2d 370, 374, 596 N.Y.S.2d 756, 758, 21 Media L. Rep. (BNA) 1818 (1st Dep’t 1993), although that would seem to be equivalent to the phrase “mixed expressions of opinion and fact.”See, e.g., Mittelman v. Witous, 135 Ill. 2d 220, 242, 142 Ill. Dec. 232, 552 N.E.2d 973 (1989). 185.Hotchner v. Castillo-Puche, 551 F.2d 910, 913, 2 Media L. Rep. (BNA) 1545 (2d Cir.),cert. denied, 434 U.S. 834, 3 Media L. Rep. (BNA) 1128 (1977);see also Barnes v. Horan, 841 So. 2d 472 (Fla. Dist. Ct. App. 2002). That a harsh opinion is based on undisclosed facts does not render it actionable. It is implied specific false and defamatory implications that may permit liability.See ZLTechs., Inc. v. Gartner, Inc., 709 F. Supp. 2d 789, 800 (N.D. Cal. 2010),aff ’d sub nom.ZLTechs., Inc. v. Gartner Grp., Inc., 433 F. App’x 547 (9th Cir.),cert. denied, 181 L. Ed. 2d 295 (2011). § 4:3.2Opinion 4 –49(Sack, 5th ed., 4/17) statement as insinuating the existence of additional, undisclosed [defamatory] facts. 186 The test as to whether facts that may be actionable defamation have been implied “is whether a reasonable listener would take [the speaker] to be basing his ‘opinion’on knowledge of facts of the sort that can be evaluated in a defamation suit.”187 The Restatement (Second) of Torts 188 takes a similar view:“A defamatory communication may consist of a statement in the form of an opinion; but a statement of this nature is actionable . . . if it implies the allegation of undisclosed defamatory facts as the basis of the opinion.”189 Thus, to say “in my opinion she is a thief ”or “I believe he is incompetent”may imply that the speaker is aware of facts which, if made known to the reader, would demonstrate an act of 186.Standing Comm. on Discipline v. Yagman, 55 F.3d 1430, 1439 (9th Cir. 1995);accord Partington v. Bugliosi, 56 F.3d 1147, 23 Media L. Rep. (BNA) 1929 (9th Cir. 1995) (citing Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 21 Media L. Rep. (BNA) 1449 (4th Cir. 1993), Moldea v. N.Y. Times Co., 22 F.3d 310, 22 Media L. Rep. (BNA) 1673 (D.C. Cir.),cert. denied, 513 U.S. 875 (1994), and Phantom Touring, Inc. v. Affiliated Publ’ns, 953 F.2d 724, 19 Media L. Rep. (BNA) 1786 (1st Cir.),cert. denied, 504 U.S. 974 (1992)); Beattie v. Fleet Nat’l Bank, 746 A.2d 717, 721 (R.I. 2000) (citing Yagman). 187.Sullivan v. Conway, 157 F.3d 1092, 1097 (7th Cir. 1998) (citing, inter alia, Milkovich, 497 U.S. at 18–23). 188.RESTATEMENT (SECOND)OF TORTS § 566 (1977). 189.Accord Hammer v. City of Osage Beach, 318 F.3d 832, 843 (8th Cir. 2003) (Mo. law); Ramunno v. Cawley, 705 A.2d 1029 (Del. 1998) (citing Kanaga v. Gannett Co., 687 A.2d 173, 25 Media L. Rep. (BNA) 1684 (Del. 1996)); Hamilton v. Hammons, 792 So. 2d 956, 960 (Miss. 2001) (citing the Restatement). In its commentary, the Restatement takes the position that an expression of opinion based on disclosed or assumed nondefamatory facts “is not itself sufficient for an action of defamation, no matter how unjustified and unreasonable the opinion may be or how derogatory it is.” RESTATEMENT (SECOND)OF TORTS § 566 cmt. C. The rationale is that in such a case, the recipient can see from the communication itself that there is no defamatory factual statement, a position that is derived from constitutional principles. This position has been taken by a number of courts, but the rationale often given is that the disclosed facts allow the recipient to evaluate the merits of the opinion.See, e.g., Partington v. Bugliosi, 56 F.3d 1147, 1156–57, 23 Media L. Rep. (BNA) 1929 (9th Cir. 1995) (quoted in text at note 194,infra); Sall v. Barber, 782 P.2d 1216, 16 Media L. Rep. (BNA) 1700 (Colo. Ct. App. 1989); Marchiondo v. Brown, 98 N.M. 394, 649 P.2d 462, 8 Media L. Rep. (BNA) 2233 (1982); Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 397 N.Y.S.2d 943, 366 N.E.2d 1299, 2 Media L. Rep. (BNA) 2169,cert. denied, 434 U.S. 969 (1977). For a helpful exposition of the Restatement position and citation to case law adopting it, see Standing Comm. on Discipline v. Yagman, 55 F.3d 1430, 1439 & n.15 (9th Cir. 1995) (applying constitutional principles protecting defamatory opinion to disciplinary proceedings arising out of lawyer ’s criticism of a judge). § 4:3.2 SACK ON DEFAMATION 4 –50 theft or of incompetence. 190 But if the defendant in the first example had explained that the opinion was based upon an unusually low price paid by the plaintiff to purchase property from a municipality, or in the second case had referred to the losing streak of the basketball team coached by the plaintiff, or if in either case those underlying facts were generally known to the defendant’s audience, then statements as to theft or incompetence would be understood as statements of opinion not demonstrably false, and protected as such. To say that an agent “screwed”his client may imply knowledge of facts demonstrating that the agent unfairly dealt with the client; the opinion could, therefore, be defamatory. 191 If it were based on an accurate statement of facts—for example, that the plaintiff received an unusually high commission—the statement would be hyperbole. To say a person was engaged in a “scam”might be an actionable allega- tion of fact, 192 but where the statement is accompanied by the fact that what the plaintiff was selling commercially was available elsewhere free or at significantly lower cost, it is opinion. 193 [W]hen an author outlines the facts available to him, thus making it clear that the challenged statements represent his own inter- pretation of those facts and leaving the reader free to draw his own conclusions, those statements are generally protected by the First Amendment.194 190.Cf. Nat’l Ass’n of Gov ’t Emps. v. Cent. Broad. Corp., 379 Mass. 220, 227, 396 N.E.2d 996, 1001, 5 Media L. Rep. (BNA) 2078 (1979) (citation omitted),cert. denied, 446 U.S. 935 (1980): [I]f I write, without more, that a person is an alcoholic, I may well have committed a libel prima facie; but it is otherwise if I write that I saw the person take a martini at lunch and accordingly state that he is an alcoholic. 191.Rand v. N.Y. Times Co., 4 Media L. Rep. (BNA) 1556 (Sup. Ct. N.Y. Cty. 1978). 192.Kolegas v. Heftel Broad. Corp., 154 Ill. 2d 1, 607 N.E.2d 201, 180 Ill. Dec. 307, 20 Media L. Rep. (BNA) 2105 (1992); Kumaran v. Brotman, 247 Ill. App. 3d 216, 617 N.E.2d 191, 198–99, 186 Ill. Dec. 952, 21 Media L. Rep. (BNA) 1833 (1993). 193.NBC Subsidiary, Inc. v. Living Will Ctr., 879 P.2d 6 (Colo. 1994),cert. denied, 514 U.S. 1015 (1995). 194.Partington v. Bugliosi, 56 F.3d 1147, 1156–57, 23 Media L. Rep. (BNA) 1929 (9th Cir. 1995) (describing cases reaching similar position in other jurisdictions),quoted with approval in Riley v. Harr, 292 F.3d 282, 289, 30 Media L. Rep. (BNA) 1961 (1st Cir. 2002) (author protected when describing factual situation accurately and drawing own defamatory fac- tual conclusion so long as he implicitly invited readers to draw their own conclusions from those facts);accord Agora, Inc. v. Axxess, Inc., 90 F. Supp. 2d 697, 700, 28 Media L. Rep. (BNA) 2017 (D. Md. 2000) (referring to plaintiff, publisher of online financial newsletter, as an “unpaid promoter ”of securities “because [it is] not paid by the companies § 4:3.2Opinion 4 –51(Sack, 5th ed., 4/17) In any case, if an opinion is based on a falsely stated allegation of fact, of course, the false allegation would not receive protection. 195 “A statement of opinion based on fully disclosed facts can be punished only if the stated facts are themselves false and demeaning.”196 If you say simply that a person is a “rat,”you are not saying something definite enough to allow a jury to determine whether whatyouaresayingistrue or false.Ifyousayheisa ratbecause..., whether you are defaming him depends on what you say in the because clause. 197 Thus, whether a statement that may or may not be an epithet is to be understood in its epithetical sense can depend on the allegations of fact accompanying it. 198 “That [a defendant] considered facts in forming its opinions does not mean that the opinions are objectively verifiable”and therefore factual for these purposes. 199 “Based upon the relative value that [the defendant] for publishing reports, but acknowledge[s] that [it] do[es] or might trade in shares of the companies [it is] writing about”protected because it is opinion based on disclosed statement of fact),aff ’d, 248 F.3d 1133 (4th Cir. 2001) (table); Balderman v. Am. Broad. Cos., 292 A.D.2d 67, 73, 738 N.Y.S.2d 462, 467, 30 Media L. Rep. (BNA) 1729 (4th Dep’t 2002) (“Given [the] disclosed facts, the allegedly defamatory statements . . . would be understood by the average person hearing them as personal surmise built upon those facts.”) (citation and internal quotation marks omitted). 195.See Milkovich v. Lorain Journal Co., 497 U.S. 1, 18–19 (1990) (“Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact.”). The Utah Supreme Court has identified a key difference between the opinion/fact relationship under pre-Milkovich constitutional and common-law approaches. Under the former an opinion was actionable if it implied or was based upon stated false and defamatory facts. The common law, on the other hand, protects only opinion based on facts truly stated. If it is based on materially false statements protection is lost irrespective of whether the false factual assertions are defamatory or not. West v. Thomson Newspapers, 872 P.2d 999 (Utah 1994) (no common-law protection, on motion to dismiss complaint, where nondefamatory facts on which opinion was based allegedly false; state constitutional protection prevailed none- theless because allegedly false allegations of fact not defamatory). 196.Standing Comm. on Discipline v. Yagman, 55 F.3d 1430 (9th Cir. 1995) (conclusion that judge was anti-Semitic explicitly drawn from accurate statement that he had sanctioned three Jewish lawyers protected as opinion). 197.Dilworth v. Dudley, 75 F.3d 307 (7th Cir. 1996) (ellipses in original). 198.Id. at 309;cf. TMJ Implants, Inc. v. Aetna, Inc., 498 F.3d 1175, 1185–87 (10th Cir. 2007) (detailing difference between protection provided by the Restatement and by Milkovich, but concluding,“In sum, we find little difference between § 566 and the Milkovich standard . . . .”). 199.ZLTechs., Inc. v. Gartner, Inc., 709 F. Supp. 2d 789, 798 (N.D. Cal. 2010), aff ’d sub nom.ZLTechs., Inc. v. Gartner Grp., Inc., 433 F. App’x 547 (9th Cir.),cert. denied, 181 L. Ed. 2d 295 (2011). § 4:3.2 SACK ON DEFAMATION 4 –52 assigns to different criteria, [it] weighs the importance of certain facts differently. The weight it applies to these facts is not verifiable. . . .”200 “[N]othing in Milkovich altered these”principles.201 Once the facts are correctly stated, an author ’s views about them are neither provably true nor provably false and therefore are protected under Hepps. As Milkovich explicitly noted, 202 moreover, if a derogatory state- ment of fact is stated or implied about a public-figure or public-official plaintiff, it remains subject to the standard of “actual malice”protec- tion; if the statement is about a private plaintiff on a matter of public concern,“fault”must be proven under Gertz. § 4:3.3 Epithet and Rhetorical Hyperbole As Nonactionable In Milkovich,203 the Supreme Court reaffirmed as a matter of con- stitutional principle what had been generally understood at common law,204 that rhetorical hyperbole, vigorous epithets, and loose, figurative language are types of speech protected from state libel actions. They cannot reasonably be interpreted as assertions of fact. 205 Protection of such speech “provides assurance that public debate will not suffer for lack of ‘imaginative expression’or the ‘rhetorical hyperbole’which has traditionally added much to the discourse of our nation.”206 Thus, in Levinsky’s, Inc. v. Wal-Mart Stores, Inc.,207 the defendant’s reference to the plaintiff ’s store as “trashy ”was held by the First Circuit to be protected, reflecting, the court said,“the reality that exaggeration and non-literal commentary have become an integral part of social dis- course.”208 And in Horsley v. Rivera,209 the Eleventh Circuit held protected as hyperbole under both the First Amendment and state law a statement by a talk-show host that an antiabortion protestor was, inter alia, an “accomplice to homicide”because he hosted a website that listed 200.Id. (citing Aviation Charter, Inc. v. Aviation Research Grp./US, 416 F.3d 864, 870 (8th Cir. 2005) and Browne v. Avvo Inc., 525 F. Supp. 2d 1249, 1252, 36 Media L. Rep. (BNA) 1444 (W.D. Wash. 2007)). 201.Standing Comm. on Discipline v. Yagman, 55 F.3d 1430, 1439 n.151 (9th Cir. 1995). 202.Milkovich, 497 U.S. at 20–21. 203.Id. at 20. 204.See section 2:4.7,supra. 205.Milkovich, 497 U.S. at 20. 206.Id. (citing Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 14 Media L. Rep. (BNA) 2281 (1988)). 207.Levinsky ’s, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 26 Media L. Rep. (BNA) 1161 (1st Cir. 1997). 208.Id. at 128. 209.Horsley v. Rivera, 292 F.3d 695, 30 Media L. Rep. (BNA) 1847 (11th Cir. 2002). § 4:3.3Opinion 4 –53(Sack, 5th ed., 4/17) the crossed-out name of a murdered doctor who had performed abor- tions.“[N]o reasonable viewer would have concluded that [the defen- dant] was literally contending that [the plaintiff] could be charged with a felony in connection with [the doctor ’s] murder.”210 Name-calling, too, is recognized as such by the listener. 211 It is not susceptible to a determination of truth or falsity and, indeed,“negate[s] the impression that the writer was seriously maintaining”a statement of fact.212 It is protected either because the names are “mere epithets”or because such language constitutes nothing more than strongly worded views neither provably true nor false—what was once simply dismissed as opinion. 213 Characterizing it as opinion not demonstrably false provides an alternative constitutional buttress to the common-law proposition that epithets and vituperation are not actionable. 214 The relationship between these types of speech and the concept of opinion is in some respects paradoxical. A major policy reason for 210.Id. at 702;see also Horsley v. Feldt, 304 F.3d 1125, 30 Media L. Rep. (BNA) 2389 (11th Cir. 2002) (similar statements about same plaintiff protected, but suggestion that he had advance knowledge of murder of doctor who performed abortions potentially actionable). 211.Rowland v. Fayed, 14 Media L. Rep. (BNA) 1257 (D.C. Super. 1987);cf. Koch v. Goldway, 817 F.2d 507, 14 Media L. Rep. (BNA) 1213 (9th Cir. 1987). 212.Milkovich, 497 U.S. at 21. 213.See, e.g., Beauharnais v. Pittsburgh Courier Publ’g Co., 243 F.2d 705 (7th Cir. 1957); Klahr v. Winterble, 4 Ariz. App. 158, 418 P.2d 404 (1966); Good Gov’t Grp., Inc. v. Superior Court, 22 Cal. 3d 672, 150 Cal. Rptr. 258, 586 P.2d 572, 4 Media L. Rep. (BNA) 2082 (1978),cert. denied, 441 U.S. 961 (1979); Gregory v. McDonnell Douglas Corp., 17 Cal. 3d 596, 552 P.2d 425, 131 Cal. Rptr. 641 (1976); Steinhausen v. HomeServices of Neb., Inc., 289 Neb. 927, 857 N.W.2d 816 (2015); Ward v. Zelikovsky, 136 N.J. 516, 643 A.2d 972 (1994);see also section 2:4.7,supra. 214.See, e.g., Hickey v. Capital Cities/ABC, Inc., 19 Media L. Rep. (BNA) 1980 (D. Or. 1992) (constitutional analysis relying on Milkovich); Henderson v. Times Mirror Co., 669 F. Supp. 356, 14 Media L. Rep. (BNA) 1659 (D. Colo. 1987),aff ’d, 876 F.2d 108 (10th Cir. 1989) (pre-Milkovich constitutional analysis); Overhill Farms, Inc. v. Lopez, 190 Cal. App. 4th 1248, 1262, 119 Cal. Rptr. 3d 127, 140 (2010) (concluding that a charge of employment discrimination based on race was actionable, while observing in dicta that “general statements charging a person with being racist, unfair or unjust— without more—. . . constitute mere name calling and do not contain a provably false assertion of fact”required for a successful defamation claim); Piersall v. SportsVision of Chi., 230 Ill. App. 3d 503, 595 N.E.2d 103, 172 Ill. Dec. 40, 20 Media L. Rep. (BNA) 1223 (1992) (use of term “liar ”); Pease v. Tel. Publ’g Co., 121 N.H. 62, 426 A.2d 463, 465, 7 Media L. Rep. (BNA) 1114 (1981)(“journalisticscumoftheearth”);Wardv.Zelikovsky,136N.J.516,538– 40, 643 A.2d 972, 983–84 (1994) (reference to plaintiffs as anti-Semitic); Covino v. Hagemann, 627 N.Y.S.2d 894 (Sup. Ct. Richmond Cty. 1995) (allegation of racism); Condit v. Clermont Cty. Review, 110 Ohio App. 3d 755, 675 N.E.2d 475 (1996) (calling plaintiff political activist a fascist and anti-Semitic not actionable under Ohio state constitutional protection for § 4:3.3 SACK ON DEFAMATION 4 –54 permitting derogatory or harsh opinion is that to prohibit it would be a serious incursion on political, intellectual, and ideological processes;215 mere name-calling, in contrast, is suffered because, among other things, it is too trivial for courts to bother with. 216 § 4:3.4 Expression of Opinion Not Genuinely Held If the defendant falsely reports that others hold an ill opinion of the plaintiff, the report would properly be considered a false statement of fact—the existence of the opinions is for this purpose a fact—upon which a cause of action for defamation may lie. 217 But with regard to the speaker ’s own stated views, if the plaintiff can prove that the opinion similarly is not in fact sincerely held, can the statement be actionable? Some courts have held that it can. 218 Unlike most com- mentary, an opinion that is not genuinely believed—a review by a drama critic, for instance, who pans a show he rather likes because it has been produced by his hated brother-in-law—can, like the falsely reported opinions of others, legitimately be said to be false. 219 It is also not “self-expression”and can claim no value as a “good unto itself.” opinion); Yeagle v. Collegiate Times, 255 Va. 293, 497 S.E.2d 136, 26 Media L. Rep. (BNA) 2337 (1998) (calling plaintiff, university ’s vice president of student affairs,“Director ofButt Licking,”not statement of fact andtherefore not actionable). 215.See section 4:3.1[B],supra. 216.See section 2:4.7,supra. 217.See, e.g., Aisenson v. Am. Broad. Cos., 220 Cal. App. 3d 146, 269 Cal. Rptr. 379, 17 Media L. Rep. (BNA) 1881 (1990); Wheeler v. Neb. State Bar Ass’n, 244 Neb. 786, 508 N.W.2d 917, 923 (1993). 218.See Sierra Breeze v. Superior Court, 86 Cal. App. 3d 102, 149 Cal. Rptr. 914, 4 Media L. Rep. (BNA) 2141 (1978); Fisher v. Wash. Post Co., 212 A.2d 335 (D.C. 1965); Coleman v. Newark Morning Ledger Co., 29 N.J. 357, 149 A.2d 193, 206 (1959); Leers v. Green, 24 N.J. 239, 131 A.2d 781, 789 (1957); Julian v. Am. Bus. Consultants, Inc., 2 N.Y.2d 1, 8, 137 N.E.2d 1, 155 N.Y.S.2d 1 (1956); RESTATEMENT OF TORTS § 606(1)(b) (1938). The Supreme Court in Milkovich, 497 U.S. 1, 20 n.7 (1990), in discussing “opinion”in a constitutional context, distinguished between an analysis of the falsity of actionable defamatory facts implied by a statement and falsity in the sense that the “opinion”stated was not actually held by the speaker. The former would serve as the basis of a defamation action,“though falsity [of the latter] may serve to establish malice where that is required for recovery.”This accords with the modern English “fair comment”approach which appears to be that failure of the defendant to hold an expressed view is evidence that the plaintiff may use to prove common-law malice that will defeat the privilege, but does not establish that the comment is not “fair.”See Telnikoff v. Matusevitch, 4 All E.R. 817, 824–25 (House of Lords 1991). 219.Franklin and Bussel cite this example but conclude,“Because a naked statement of dislike or lack of respect cannot be proved false, we would § 4:3.4Opinion 4 –55(Sack, 5th ed., 4/17) Some courts have held, nonetheless, that insincerely held opinions are protected, too, provided the facts supporting them are set forth; 220 the logic of Milkovich does not change that conclusion. Perhaps that approach may be justified on the theory that protection of insincere opinions is required in order to protect sincere ones; that defendants ought not to face litigation about the sincerity of their beliefs each time they express one.“There simply is no viable way to distinguish between reviews written by those who honestly believe a book is bad, and those prompted solely by mischievous intent.”221 A comparable rationale has been stated for the protection of false statements of fact in order to preserve the freedom to speak the truth. 222 It is, of course, the case that a false attribution of a statement to the plaintiff to the effect that he intended to harm a third person may be actionable as a false statement of fact—that is, the plaintiff did not in fact make the statement—even if the plaintiff ’s purported state- ment itself is deemed to be a statement of opinion. 223 § 4:3.5 Statements Held to Be Nonactionable There is a host of cases in which the distinction between fact and opinion has been applied. Although many of the decisions were rendered pre-Milkovich—under the common law or the Gertz regime of absolute protection—they remain illustrative and would likely be decided the same way today. Courts have, for example, held the following statements to be nonactionable: •Union officials are “willing to sacrifice the interests of the members of their union to further their own political aspira- tions and personal ambitions.”224 •A teacher was the “worst teacher,”a “babbler,”and “terrorized” by student action. 225 conclude that insincerely held views are not actionable as defamations.” The Plaintiff ’s Burden in Defamation: Awareness and Falsity, 25 WM. & MARY L. REV. 825, 868 n.165 (1984). That does not address the question, is it not demonstrably false to state as a belief a belief not in fact held? 220.Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 381, 397 N.Y.S.2d 943, 366 N.E.2d 1299, 2 Media L. Rep. (BNA) 2169,cert. denied, 434 U.S. 969 (1977). 221.Moldea v. N.Y. Times Co., 22 F.3d 310, 320, 22 Media L. Rep. (BNA) 1673 (D.C. Cir.),cert. denied, 513 U.S. 875 (1994). 222.Gertz v. Robert Welch, Inc., 418 U.S. 323, 340–41 (1974). 223.Tharpe v. Saunders, 285 Va. 476, 737 S.E.2d 890, 41 Media L. Rep. (BNA) 1505 (2013). 224.Gregory v. McDonnell Douglas Corp., 552 P.2d 425, 17 Cal. 3d 596, 131 Cal. Rptr. 641, 643 (1976). 225.Moyer v. Amador Valley Joint Union High Sch. Dist., 225 Cal. App. 3d 720, 275 Cal. Rptr. 494, 18 Media L. Rep. (BNA) 1602 (1990). § 4:3.5 SACK ON DEFAMATION 4 –56 •A city manager would “stoop to any form of action . . . [in his] power to . . . stay in office,”and has assumed “the position of . . . dictator ”and that the city ’s affairs had descended to a “mutinous character.”226 •An obscure version of Phantom of the Opera was a “Fake Phantom,”a “rip-off, a fraud, a scandal, a snake-oil job.”227 •An employee was guilty of “favoritism”and a “brown nose”in the context of an employee grievance session. 228 •A mayor “often misleads”reporters.229 •An elected county supervisor voted “to squander property tax funds for [an] airport.”230 •A judge is incompetent and ought to be removed from office. 231 •A charity was charging “hefty mark-ups”on goods shipped to American troops in the Persian Gulf. 232 •A political candidate has “unfailingly injected a religious atmo- sphere into a political campaign”and that he has “attempted to becloud the issue by appeals to the ignorant, the prejudiced and the uninformed.”233 226.Scott v. McDonnell Douglas Corp., 37 Cal. App. 3d 277, 284, 112 Cal. Rptr. 609, 613 (1974). 227.Phantom Touring, Inc. v. Affiliated Publ’ns, 953 F.2d 724, 19 Media L. Rep. (BNA) 1786 (1st Cir.),cert. denied, 504 U.S. 974 (1992);see also Colodny v. Inverson, Yoakum, Papiano & Hatch, 936 F. Supp. 917 (M.D. Fla. 1996) (reference to plaintiff ’s controversial book on Watergate as a “fraud”in letter to the editor not actionable). 228.Lund v. Chi. & Nw. Transp. Co., 467 N.W.2d 366 (Minn. Ct. App. 1991). 229.Craig v. Moore, 4 Media L. Rep. (BNA) 1402 (Fla. Cir. Ct. Duval Cty. 1978). 230.Sierra Breeze v. Superior Court, 86 Cal. App. 3d 102, 149 Cal. Rptr. 914, 4 Media L. Rep. (BNA) 2141 (1978). 231.Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 397 N.Y.S.2d 943, 366 N.E.2d 1299, 2 Media L. Rep. (BNA) 2169,cert. denied, 434 U.S. 969 (1977);cf. Hopewell v. Vitullo, 299 Ill. App. 3d 513, 701 N.E.2d 99, 233 Ill. Dec. 456 (1998) (statement that plaintiff was terminated as employee of political campaign “because of incompetence,”without more, not actionable); Starnes v. Capital Cities Media, Inc., 19 Media L. Rep. (BNA) 2115 (Ill. App. Ct. 1992) (plaintiff behavior termed “a disgrace to the judiciary ”not actionable). 232.Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 21 Media L. Rep. (BNA) 1449 (4th Cir. 1993);see also NBC Subsidiary, Inc. v. Living Will Ctr., 879 P.2d 6 (Colo. 1994) (referring to privately sold “living will”package much of which was obtainable free or at lesser cost as “scam”and buyers as “totally taken”held to be opinion),cert. denied, 514 U.S. 1015 (1995). 233.Devany v. Shulman, 184 Misc. 613, 53 N.Y.S.2d 401 (Bronx Cty. 1944), aff ’d, 269 A.D. 1022, 59 N.Y.S.2d 401 (1st Dep’t 1945). § 4:3.5Opinion 4 –57(Sack, 5th ed., 4/17) •A city council’s choice for office “appeared”to have paid off a political debt and came from people who had “demonstrated a penchant for cronyism.”234 •Will Rogers, who said he never met a man he didn’t like, never met the plaintiff, a candidate for public office. 235 • “Sure a lot of people know someone who’s gone bad . . . but [the plaintiff] knows nothing but bad people.”236 • “[S]ometimes a [named legislator ’s] change of heart comes from the pocket.”237 •A California Superior Court judge was “a bad guy.”238 •A reporter who had been part of an environmental group and reported on the energy business had a conflict of interest. 239 •That the plaintiff was “able to parlay ”publicity with respect to his role in a college basketball program “into a . . . basketball scholarship for his son.”240 •That a judge was anti-Semitic, based on the disclosed fact that he had disciplined three Jewish lawyers, and that he was intellectually “dishonest.”241 •That the plaintiff was “a very poor lawyer.”242 •That plaintiffs, Kennedy assassination “conspiracy theorists,” were “guilty of misleading the American public.”243 •Use of “Highway Robbery ”as title for television report on automobile collision appraisal services. 244 234.Salvo v. Salem News Publ’g Co., 4 Media L. Rep. (BNA) 1856 (Mass. Dist. Ct. Essex Cty. 1978). 235.Miller v. Bakersfield News-Bulletin, Inc., 44 Cal. App. 3d 899, 119 Cal. Rptr. 92 (1975). 236.Lynch v. N.J. Educ. Ass’n, 161 N.J. 152, 735 A.2d 1129 (1999). 237.Sillars v. Collier, 151 Mass. 50, 23 N.E. 723 (1890),quoted in Salvo v. Salem News Publ’g Co., 4 Media L. Rep. (BNA) 1856 (Mass. Dist. Ct. Essex Cty. 1978). 238.Aisenson v. Am. Broad. Cos., 220 Cal. App. 3d 146, 269 Cal. Rptr. 379, 17 Media L. Rep. (BNA) 1881 (1990). 239.Savage v. Pac. Gas & Elec. Co., 21 Cal. App. 4th 434, 444–45, 26 Cal. Rptr. 2d 305, 22 Media L. Rep. (BNA) 1737 (1993),cert. denied, 513 U.S. 820 (1994). 240.Maynard v. Daily Gazette Co., 191 W. Va. 601, 447 S.E.2d 293, 22 Media L. Rep. (BNA) 2337 (1994). 241.Standing Comm. on Discipline v. Yagman, 55 F.3d 1430 (9th Cir. 1995). 242.Sullivan v. Conway, 157 F.3d 1092 (7th Cir. 1998). 243.Groden v. Random House, Inc., 61 F.3d 1045, 23 Media L. Rep. (BNA) 2203 (2d Cir. 1995); Lane v. Random House, Inc., 985 F. Supp. 141, 23 Media L. Rep. (BNA) 1385 (D.D.C. 1995). 244.Dulgarian v. Stone, 420 Mass. 843, 652 N.E.2d 603 (1995). § 4:3.5 SACK ON DEFAMATION 4 –58 •That the plaintiff, a college basketball coach,“usually finds a way to screw things up.”245 •That the plaintiff, an amateur mathematician, was a “crank,” based on an evaluation of his published work. 246 •That the plaintiff ’s store was “trashy,”247 or that the plaintiff “ripped off ”a customer by suggesting the need for an unneces- sary purchase. 248 •Reference to a university ’s vice president of student affairs as the “Director of Butt Licking.”249 •Reference to the plaintiff, losing contestant on television pro- gram, as “local loser,” “chicken butt,”and a “big skank.”250 •That a councilman “did not consistently serve the interests of the City,” “usurp[ed] the functions of the City Manager,” “dictated appointments in violation of the charter,” “forced out of office useful employees of the City,” “had as little respect for sound business usage in [his] conduct of the City ’s affairs as [he] showed for the charter or the merit system in the municipal service,” “did not always . . . take the highest and best bids when selling, and the lowest when buying,”and “lack[ed] that con- scientious regard for the City ’s interest which makes the City office a public trust.”251 •That “in the aggregate, the data in this [appraiser ’s] report combines to present such a misleading indication of the value of this property as to be considered fraudulent,”when combined with a statement of the facts on which the opinion was based. 252 245.Washington v. Smith, 893 F. Supp. 60 (D.D.C. 1995),aff ’d, 80 F.3d 555 (D.C. Cir. 1996). 246.Dilworth v. Dudley, 75 F.3d 307 (7th Cir. 1996). 247.Levinsky ’s, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 26 Media L. Rep. (BNA) 1161 (1st Cir. 1997). 248.Jaillett v. Ga. Television Co., 238 Ga. App. 885, 520 S.E.2d 721 (1999). The Jaillett court observed that if use of the term implies an unstated false assertion of fact, it can support an action for defamation. 249.Yeagle v. Collegiate Times, 255 Va. 293, 497 S.E.2d 136, 26 Media L. Rep. (BNA) 2337 (1998). 250.Seelig v. Infinity Broad. Corp., 97 Cal. App. 4th 798, 119 Cal. Rptr. 2d 108, 30 Media L. Rep. (BNA) 1691 (2002);cf. Ferlauto v. Hamsher, 74 Cal. App. 4th 1394, 88 Cal. Rptr. 2d 843, 27 Media L. Rep. (BNA) 2364 (1999) (reference to plaintiff as “creepazoid attorney ”and “loser wannabe lawyer ” not actionable). 251.Taylor v. Lewis, 132 Cal. App. 381, 22 P.2d 569 (1933). 252.Beattie v. Fleet Nat’l Bank, 746 A.2d 717 (R.I. 2000). § 4:3.5Opinion 4 –59(Sack, 5th ed., 4/17) •That the plaintiff, active in partisan politics,“began to experience sudden bouts of pessimism and paranoia—early symptoms of the nervous breakdown that afflicts conservatives today.”253 •In a note from one art dealer to another, that the first “had no reason to take”the plaintiff, a person seeking to buy a very expensive painting,“seriously.”254 •In a radio talk show, statement that a sportscaster and his guest “really slobbered over each other, I mean, I really thought they were going to start performing oral sex on one another, it was so sickening.”255 •In a handbill, that a company proposing to build a trash transfer station was a “trash terrorist.”256 •A dog race-track operator ’s reference to a dog kennel’s “sub- standard and poor performers.”257 •A credit rating by a ratings service. 258 •That a former publisher of a newspaper “‘wrought damage to’the [paper ’s] finances, reputation, business relationships, morale, and quality of its editorial product.”259 •That the plaintiff was being terminated for “continuing issues” or for “disloyal and disruptive activity.”260 •That the behavior of the defendant, a dismissed employee,“did not comport with the [unspecified] standards that [the em- ployer] expects of its employees.”261 •That the plaintiff, in business dealings with an organization with which she was affiliated, was acting contrary to the organization’s conflict-of-interest policy. 262 253.Weyrich v. New Republic, 235 F.3d 617, 621, 29 Media L. Rep. (BNA) 1257 (D.C. Cir. 2001). 254.Jaszai v. Christie’s, 279 A.D.2d 186, 719 N.Y.S.2d 235 (1st Dep’t 2001). 255.Finebaum v. Coulter, 854 So. 2d 1120 (Ala. 2003). 256.Diehl v. Kintz, 162 S.W.3d 152 (Mo. Ct. App. 2005). 257.Yates v. Iowa W. Racing Ass’n, 721 N.W.2d 762 (Iowa 2006). 258.Compuware Corp. v. Moody ’s Inv ’rs Servs., 499 F.3d 520, 529 (6th Cir. 2007) (the rating is protected opinion although the underlying statement of facts may be actionable defamation). 259.Rose v. Hollinger Int’l, Inc., 383 Ill. App. 3d 8, 13–17, 889 N.E.2d 644, 649–52, 321 Ill. Dec. 371 (2008) (cataloging previous Illinois cases distinguishing between actionable assertions of fact and nonactionable expressions of opinion). 260.Chambers v. Travelers Cos., 668 F.3d 559, 565 (8th Cir. 2012). 261.Rosen v. Am. Isr. Pub. Affairs Comm., Inc., 41 A.3d 1250 (D.C. Ct. App. 2012). 262.Coghlan v. Beck, 984 N.E.2d 132, 148, 2013 IL App (1st) 120891, 368 Ill. Dec. 407 (Ill. App.Ct. 2013) (citing California and Pennsylvania cases). § 4:3.5 SACK ON DEFAMATION 4 –60 •That a doctor, who had allegedly treated the defendant’s father insensitively, was referred to by an unidentified nurse as “a real tool.”263 •That, according to a compilation by the defendant—a website proprietor of reviews submitted by consumers—the plaintiff ’s hotel was “the dirtiest hotel in America”in 2001. 264 •Patently wild accusations on blog that the plaintiffs, acting with respect to a corporate bankruptcy, were engaged in “illegal activity,”including “corruption,” “fraud,” “deceit on the govern- ment,” “money laundering,” “defamation,” “harassment,” “tax crimes,”and “fraud against the government.”265 •That the plaintiff, a securities trader, was a “sucker,” “fool,” “frontman,” “industrial waste,” “pilot[ ]”of the “ship of doom,” and [a]“crook[ ] or moron[ ].”266 •An “Expression of Concern”published both online and in hard copy by the defendant American Diabetes Association question- ing aspects of the plaintiff ’s work that had previously been published in the Association’s “prominent research publica- tion,”Diabetes.267 •Suggestions in newspaper articles that a musician public figure may, to some extent, have been responsible for an associate’s suicide.268 The Second Circuit, applying New Jersey law, held that actions indicating that the defendant suspected the plaintiff of a crime was nonactionable opinion. 269 263.McKee v. Laurion, 825 N.W.2d 725, 733 (Minn. 2013). 264.Seaton v. Trip Advisor LLC, 728 F.3d 592, 598 (6th Cir. 2013). 265.Obsidian Fin. Grp., LLC v. Cox, 740 F.3d 1284, 1293, 42 Media L. Rep. (BNA) 1186 (9th Cir. 2014) (applying test from Partington v. Bugliosi, 56 F.3d 1147, 1153 (9th Cir. 1995):“The test considers ‘(1) whether the general tenor of the entire work negates the impression that the defendant was asserting an objective fact, (2) whether the defendant used figurative or hyperbolic language that negates that impression, and (3) whether the statement in question is susceptible of being proved true or false.’”) (citation omitted). 266.Chau v. Lewis, 771 F.3d 118 (2d Cir. 2014). 267.Saad v. Am. Diabetes Ass’n, 123 F. Supp. 3d 175 (D. Mass. 2015). 268.Scholz v. Boston Herald, Inc., 473 Mass. 242, 41 N.E.3d 38, 43 Media L. Rep. (BNA) 3172 (2015). 269.Lee v. Bankers Tr. Co., 166 F.3d 540, 546–47 (2d Cir. 1999) (citing Milkovich, 497 U.S. at 18–20). § 4:3.5Opinion 4 –61(Sack, 5th ed., 4/17) § 4:3.6 Statements Held to Contain Allegations of Fact It has nevertheless been held that the statement that the agent of a rock singer “screwed”his client might be actionable because, in the particular context, it suggested knowledge of underlying facts of unfair dealing.270 An allegation that the plaintiffs, Vietnamese refugees,“supported communism and the Viet Cong government”was a statement of fact, not opinion. 271 The Ninth Circuit decided that criticism of the actions of the corporate owner and operator of mobile home parks that included allegations that the plaintiff ’s actions were “rent gouging at its worst” and indicative of “corporate greed,”that some “residents have already been forced to surrender their homes,”and that the plaintiff ’s rent increase was well above the fair market rent for similar spaces, could be construed by a jury to constitute false allegations of fact. 272 The Fourth Circuit ruled that a jury might find actionable a statement by a union managerial employee that the plaintiff, a dismissed union organizer,“was not a good organizer ”because “it is at least arguably an opinion that might be construed as implying [the fact of the plaintiff ’s] failure to fulfill the duties of his position.”273 It was a statement of fact to say that members of the city council accepted “thirty pieces of silver ”apiece in connection with a municipal contract with a garbage removal service, because the only conceivable meaning was that the members had, in fact, been bribed. 274 It may be a factual allegation to say that a man is a “crook”without stating the basis for that conclusion. 275 And it was an allegation of “bald and unambiguous 270.Rand v. N.Y. Times Co., 4 Media L. Rep. (BNA) 1556 (Sup. Ct. N.Y. Cty. 1978). 271. Duc Tan v. Le, 177 Wash. 2d 649, 300 P.3d 356 (2013). 272.Manufactured Home Cmtys., Inc. v. County of San Diego, 544 F.3d 959 (9th Cir. 2008). 273.Murray v. United Food & Commercial Workers Int’l Union, 289 F.3d 297, 306 (4th Cir. 2002). 274.Catalano v. Pechous, 69 Ill. App. 3d 797, 25 Ill. Dec. 838, 387 N.E.2d 714, 4 Media L. Rep. (BNA) 2094 (1978),aff ’d, 83 Ill. 2d 146, 50 Ill. Dec. 242, 419 N.E.2d 350, 6 Media L. Rep. (BNA) 2511 (1980),cert. denied, 451 U.S. 911 (1981). 275.See Hill,Defamation and Privacy Under the First Amendment, 76 COLUM. L. REV. 1205, 1231 (1976).Contra Dubinsky v. United Airlines Master Exec. Council, 303 Ill. App. 3d 317, 324, 708 N.E.2d 441, 236 Ill. Dec. 855 (1999) (calling plaintiff a “crook”not actionable when made without further context provided); Klein v. McGauley, 29 A.D.2d 418, 288 N.Y.S.2d 751, 755 (2d Dep’t 1968) (“crook”a general expression of opprobrium, not slanderous “per se”unless it refers to a specific indictable crime). § 4:3.6 SACK ON DEFAMATION 4 –62 fact,”at least in the early 1950s, to refer to an entity as “communist dominated.”276 It was a provably false statement of fact to imply that the plaintiff committed perjury in Milkovich,277 and would be to imply that a lawyer invited a witness to commit perjury. 278 The republication of the statement of another may add the context necessary to understand that a statement is an assertion of fact: The Second Circuit concluded that an assertion published in a directory of professionals involved in gender discrimination litigation that a third person referred to the plaintiff as an “ambulance chaser ”who took only “slam dunk”cases was a provably false assertion of fact. 279 And the Ninth Circuit held it was potentially actionable for a television commentator to say of plaintiff ’s product,“It didn’t work.”280 It is a statement of fact to publish allegations of failure to perform an official duty by a state commissioner where specific alleged in- stances are cited 281 and to say that the plaintiff, promoting a charitable event, was “not for real”and was “scamming,”and that there was no such event. 282 And it has been observed that “[t]he greater number of courts have held that the imputation of a corrupt or dishonorable motive in connection with established facts is itself to be classified as a statement of fact and as such not to be within the defense of fair comment.”283 The statement that the plaintiff, a land developer, had “done well through poorly maintained properties”was defamatory because it might suggest that he had “prospered from rents gleaned from dilapi- dated, sub-standard buildings, or that he ha[d] failed to observe 276.Utah State Farm Bureau v. Nat’l Farm Union Serv. Corp., 198 F.2d 20, 23, 33 A.L.R.2d 1186 (10th Cir. 1952). 277.Milkovich v. Lorain Journal Co., 497 U.S. 1, 17 Media L. Rep. (BNA) 2009 (1990). 278.Armstrong v. Simon & Schuster, Inc., 85 N.Y.2d 373, 6649 N.E.2d 825, 25 N.Y.S.2d 477, 23 Media L. Rep. (BNA) 1532 (1995) (susceptible to a defamatory meaning). 279.Flamm v. Am. Ass’n of Univ. Women, 201 F.3d 144, 28 Media L. Rep. (BNA) 1329 (2d Cir. 2000). 280.Plaintiff could not prove that it did, so defendant prevailed nonetheless. Unelko Corp. v. Rooney, 912 F.2d 1049, 17 Media L. Rep. (BNA) 2317 (9th Cir. 1990),cert. denied, 499 U.S. 961 (1991). 281.Murphy v. Farmers Educ. & Coop. Union, 72 N.W.2d 636 (N.D. 1955) (there were also suggestions of bribes and moonlighting and that the status of the official was “errand boy ”for the industry he was charged with regulating). 282.Kolegas v. Heftel Broad. Corp., 154 Ill. 2d 1, 607 N.E.2d 201, 180 Ill. Dec. 307, 20 Media L. Rep. (BNA) 2105 (1992). 283.A.S. Abell Co. v. Kirby, 227 Md. 267, 176 A.2d 340, 343, 90 A.L.R.2d 1264 (1961) (citing PROSSER ON TORTS 622 (2d ed. 1955); THAYER, LEGAL CONTROL OF THE PRESS § 66 (3d ed. 1956)). § 4:3.6Opinion 4 –63(Sack, 5th ed., 4/17) governing building and health codes.”284 The statement “CEO Dave Fitzgerald demoted [Executive Creative Director] Mark Gettner [in 2002] after poor performance”was a statement of fact about the reason for Gettner ’s demotion and not a statement of opinion about his performance. 285 And an insurance adjustor ’s assertions that the plaintiff, a lawyer,“just takes peoples’money ”and that his clients “would receive more money [for their claims] if they had not hired [the lawyer] and had dealt with the adjuster [directly],”were held not to be statements of opinion because they could be proved to be false. 286 Charges of specific criminal conduct, even when phrased as opin- ion, have been held to be actionable. The oft-stated reason is that such charges are too “laden with factual content”to be protected as opinion and cannot be saved even by cautionary language. 287 Similar allegations in different contexts have been held to be fact under one circumstance and opinion under another. Suggestions of pro-Nazi sentiments or anti-Semitism, for example, have been held privileged as fair comment or constitutionally protected in several cases,288 although such allegations were held to be statements of 284.Ramunno v. Cawley, 705 A.2d 1029, 1037 (Del. 1998). 285.Gettner v. Fitzgerald, 297 Ga. App. 258, 261–62, 677 S.E.2d 149, 154 (2009). 286.Tronfeld v. Nationwide Mut. Ins. Co., 272 Va. 709, 636 S.E.2d 447, 449 (2006) (brackets in original). 287.Cianci v. New Times Publ’g Co., 639 F.2d 54, 63, 6 Media L. Rep. (BNA) 1625 (2d Cir. 1980). The Cianci court specifically rejected the position of the RESTATEMENT (SECOND)OF TORTS § 566 (1977), and would have denied protection for such a statement even had all the underlying facts been disclosed.Accord Standing Comm. on Discipline v. Yagman, 55 F.3d 1430, 1440 (9th Cir. 1995) (citing Cianci); Vern Simms Ford, Inc. v. Hagel, 42 Wash. App. 675, 713 P.2d 736 (1986). The New York Court of Appeals, however, has flatly denied the existence of any such principle. Gross v. N.Y. Times Co., 82 N.Y.2d 146, 155, 623 N.E.2d 1163, 1169, 603 N.Y.S.2d 813, 21 Media L. Rep. (BNA) 2142 (1993) (“Although plaintiff repeatedly suggests otherwise, there is simply no special rule of law making criminal slurs actionable regardless of whether they are asserted as opinion or fact.”). The Ninth Circuit once implied as much.See Lewis v. Time, Inc., 710 F.2d 549, 9 Media L. Rep. (BNA) 1984 (9th Cir. 1983). 288.Potts v. Dies, 132 F.2d 734 (D.C. Cir. 1942) (commentary on plaintiff ’s published work praising Adolf Hitler),cert. denied, 319 U.S. 762 (1943); Sullivan v. Meyer, 141 F.2d 21 (D.C. Cir.),cert. denied, 322 U.S. 743 (1944); Ashotegiazaryan v. Zalmayev, 880 F. Supp. 2d 494 (S.D.N.Y. 2012); Dall v. Pearson, 246 F. Supp. 812 (D.D.C. 1963),cert. denied, 380 U.S. 965 (1965);see also Standing Comm. on Discipline v. Yagman, 55 F.3d 1430 (9th Cir. 1995) (conclusion that judge was anti-Semitic explicitly drawn from accurate statement that he had sanctioned three Jewish lawyers protected as opinion). § 4:3.6 SACK ON DEFAMATION 4 –64 fact capable of a defamatory meaning in another. 289 The assertion that someone is a “liar ”may be either a nonactionable statement of opinion or an actionable statement of fact depending on the circum- stances in which the statement is made. 290 § 4:3.7 Judge and Jury The vast majority of courts, and all of the federal circuits, agree that whether a statement is fact or opinion is a matter of law for the court to decide. 291 Since this agreement is consistent with the view 289.Holy Spirit Ass’n v. Sequoia Elsevier Publ’g Co., 4 Media L. Rep. (BNA) 2311 (Sup. Ct. N.Y. Cty. 1979) (statement that plaintiff religious organization “‘is a theological-political instrument, combining elements of Manicheism, Nazi-style anti-Semitism [and] Calvinism . . .’is not couched in opinion form. Indeed, it has a scholarly aura about it which implies that the author is privy to facts about plaintiff that are unknown to the general reader . . . .”). 290.Madison v. Frazier, 539 F.3d 646 (7th Cir. 2008) (statement that the plaintiff lied was an objectively verifiable statement of fact in context, albeit not actionable because not published with “actual malice”); Cook v. Winfrey, 141 F.3d 322, 26 Media L. Rep. (BNA) 1586 (7th Cir. 1998) (whether “liar ”was an allegation of fact was a factual issue not resolvable on motion to dismiss); Gill v. Del. Park, LLC, 294 F. Supp. 2d 638 (D. Del. 2003) (use of the term “liar ”in the course of trading charges about horse racing a nonactionable opinion); Piersall v. SportsVision of Chi., 230 Ill. App. 3d 503, 172 Ill. Dec. 40, 595 N.E.2d 103, 107 (1992) (general statement that someone is a “liar ”without a specific factual context is nonactionable opinion). See discussion of term at note 126,supra. 291.See, e.g., Knievel v. ESPN, 393 F.3d 1068, 1073–74, 33 Media L. Rep. (BNA) 1097 (9th Cir. 2005); Hammer v. City of Osage Beach, 318 F.3d 832, 842 (8th Cir. 2003) (Mo. law); Dilworth v. Dudley, 75 F.3d 307 (7th Cir. 1996); Mr. Chow v. Ste. Jour Azur S.A., 759 F.2d 219, 11 Media L. Rep. (BNA) 1713 (2d Cir. 1985); Ollman v. Evans, 750 F.2d 970, 11 Media L. Rep. (BNA) 1433 (D.C. Cir. 1984) (en banc),cert. denied, 471 U.S. 1127, 11 Media L. Rep. (BNA) 2015 (1985); Baker v. L.A. Herald Examiner, 42 Cal. 3d 254, 721 P.2d 87, 228 Cal. Rptr. 206, 13 Media L. Rep. (BNA) 1159 (1986),cert. denied, 479 U.S. 1032 (1987); Owen v. Carr, 113 Ill. 2d 273, 497 N.E.2d 1145, 100 Ill. Dec. 783 (1986); Moyer v. Amador Valley Joint Union High Sch. Dist., 225 Cal. App. 3d 720, 275 Cal. Rptr. 494, 18 Media L. Rep. (BNA) 1602 (1990); NBC Subsidiary, Inc. v. Living Will Ctr., 879 P.2d 6 (Colo. 1994),cert. denied, 514 U.S. 1015 (1995); Piersall v. SportsVision of Chi., 230 Ill. App. 3d 503, 595 N.E.2d 103, 172 Ill. Dec. 40, 20 Media L. Rep. (BNA) 1223 (1992); Lyons v. Globe Newspaper Co., 415 Mass. 258, 612 N.E.2d 1158, 1162 (1993) (“If ‘the statement unambiguously constitutes either fact or opinion’”); Lund v. Chi. & Nw. Transp. Co., 467 N.W.2d 366 (Minn. Ct. App. 1991); Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 381, 397 N.Y.S.2d 943, 366 N.E.2d 1299, 2 Media L. Rep. (BNA) 2169 (citing Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S. 264 (1974)),cert. denied, 434 U.S. 969 (1977); Wampler v. Higgins, 93 Ohio St. 3d 111, 752 N.E.2d 962, 29 Media L. Rep. (BNA) 2377 (2001); Mathias v. Carpenter, 587 A.2d 1, 18 Media L. Rep. § 4:3.7Opinion 4 –65(Sack, 5th ed., 4/17) that opinion is protected as a matter of constitutional law, it is the responsibility of courts to “examine for [themselves] the statements in issue and the circumstances under which they were made to see . . . whether they are of a character which the principles of the First Amendment, as adopted by the Due Process Clause to the Fourteenth Amendment, protect.”292 Some state courts, however, take the position that [w]here the statements are unambiguously fact or opinion . . . the court determines as a matter of law whether the statements are of fact or opinion. However, where the alleged defamatory remarks could be determined either as fact or opinion, the court cannot say as a matter of law that the statements were not understood as fact, there is a triable issue of fact for the jury. 293 (BNA) 1818 (Pa. Super. Ct. 1991); WJLA-TV v. Levin, 264 Va. 140, 156, 564 S.E.2d 383, 392 (2002); Williams v. Garraghty, 249 Va. 224, 455 S.E.2d 209,cert. denied, 516 U.S. 814 (1995). [I]n effect the judge is being asked whether a reasonable jury could find the term defamatory, and that obviously is a judgment that cannot be left to the jury. Dilworth v. Dudley, 75 F.3d 307, 310 (7th Cir. 1996). 292.N.Y. Times Co. v. Sullivan, 376 U.S. 254, 285 (1964) (quoting Pennekamp v. Florida, 328 U.S. 331, 335 (1946)). 293.Bindrim v. Mitchell, 92 Cal. App. 3d 61, 77–78, 155 Cal. Rptr. 29, 39, 5 Media L. Rep. (BNA) 1113,cert. denied, 444 U.S. 984 (1979) (citing Gregory v. McDonnell Douglas Corp., 17 Cal. 3d 596, 552 P.2d 425, 131 Cal. Rptr. 641 (1976), and Good Gov ’t Grp., Inc. v. Superior Court, 22 Cal. 3d 672, 150 Cal. Rptr. 258, 586 P.2d 572, 4 Media L. Rep. (BNA) 2082 (1978),cert. denied, 441 U.S. 961 (1979));see also Goldwater v. Ginzburg, 261 F. Supp. 784, 786 (S.D.N.Y. 1966),aff ’d, 414 F.2d 324 (2d Cir. 1969), cert. denied, 396 U.S. 1049 (1970); Yetman v. English, 168 Ariz. 71, 811 P.2d 323 (1991) (statement by one politician about another,“What kind of communist do we have [here],”capable of defamatory meaning; jury to decide whether it was so understood) and cases cited therein; Bently Reserve LP v. Papaliolios, 218 Cal. App. 4th 418, 427–28, 218 Cal. App. 4th 418, 430 (2013); Campanelli v. Regents of the Univ. of Cal., 44 Cal. App. 4th 572, 578, 51 Cal. Rptr. 2d 891, 895 (1996); Kahn v. Bower, 232 Cal. App. 3d 1599, 284 Cal. Rptr. 244, 19 Media L. Rep. (BNA) 1236 (1991); Aldoupolis v. Globe Newspaper Co., 398 Mass. 731, 500 N.E.2d 794, 796–97, 13 Media L. Rep. (BNA) 1779 (1986) (“The determination whether a statement is a factual assertion or an opinion is a question of law if the statement unambiguously constitutes either fact or opinion. . . . However, if a statement is susceptible of being read by a reasonable person as either a factual statement or an opinion, it is for the jury to deter- mine.”); Miller v. Jones, 114 Nev. 1291, 970 P.2d 571 (1998); Nev. Indep. Broad. Corp. v. Allen, 99 Nev. 404, 664 P.2d 337, 37 A.L.R.4th 1070, 9 Media L. Rep. (BNA) 1769 (1983); Davis v. Boeheim, 24 N.Y.3d 262, 272, 22 N.E.3d 999, 1006, 998 N.Y.S.2d 131, 138 (2014) (“[O]n a motion to dismiss we consider whether any reading of the complaint supports the defamation claim. Thus, although it may well be that the challenged § 4:3.7 SACK ON DEFAMATION 4 –66 Whatever the rule, of course, a court may on appropriate facts determine as a matter of law that a statement before it is not provably false and therefore not actionable. 294 § 4:3.8 Advertising and Commercial Speech Opinion contained in commercial speech is likely as protected as opinion in other contexts, 295 although the fact that it is in an advertisement may influence the court’s appraisal of whether a statement is provably false and therefore actionable by the context in which it is found. 296 But assuming only that under Hepps, the burden of proof as to falsity remains with a plaintiff in a commercial setting, the mere fact that an evaluative statement is made in an advertisement rather than an editorial or from a soap box does not in itself make it any more provably false and therefore actionable. § 4:3.9 Appellate Review Milkovich stated explicitly that, because protection for statements claimed to be nonactionable under that opinion is a matter of constitutional law, appellate courts must make an independent search statements are subject to defendants’interpretation the motion to dismiss must be denied if the communication at issue, taking the words in their ordinary meaning and in context, is also susceptible to a defamatory connotation.”) (brackets and internal quotation marks omitted). 294.Burns v. Denver Post, Inc., 5 Media L. Rep. (BNA) 1105 (Colo. Dist. Ct.), aff ’d, 5 Media L. Rep. (BNA) 2004 (Colo. 1979); Catalano v. Pechous, 69 Ill. App. 3d 797, 25 Ill. Dec. 838, 387 N.E.2d 714, 723, 4 Media L. Rep. (BNA) 2094 (1978) (dicta),aff ’d, 83 Ill. 2d 146, 50 Ill. Dec. 242, 419 N.E.2d 350, 6 Media L. Rep. (BNA) 2511 (1980),cert. denied, 451 U.S. 911 (1981) (citing Hahnemannian Life Ins. Co. v. Beebe, 48 Ill. 87 (1868)). Courts have on occasion noted that, where opinion is involved, early dismissal of unwarranted litigation is peculiarly appropriate to safeguard the free-expression interests involved.See, e.g., West v. Thomson News- papers, 872 P.2d 999 (Utah 1994);cf. section 16:3.1[A],infra. 295.Lane v. Random House, Inc., 985 F. Supp. 141, 23 Media L. Rep. (BNA) 1385 (D.D.C. 1995); Groden v. Random House, Inc., 1994 U.S. Dist. LEXIS 11794, 1994 WL 455555, 22 Media L. Rep. (BNA) 2257 (S.D.N.Y. 1994),aff ’d, 61 F.3d 1045, 23 Media L. Rep. (BNA) 2203 (2d Cir. 1995). Note, however, that the Groden court of appeals was of the apparent view that the advertisement for a book about the Kennedy assassination was not commercial speech. 61 F.3d at 1052. Compare the discussion of the application of New York Times v. Sullivan to commercial speech, section 5:6,infra. See generally STEVEN G. BRODY & BRUCE E.H. JOHNSON, ADVERTISING AND COMMERCIAL SPEECH: A FIRST AMENDMENT GUIDE (2d ed. 2004). 296.See section 4:3.1,supra. § 4:3.9Opinion 4 –67(Sack, 5th ed., 4/17) of the record and decide de novo whether a statement for which protection is claimed should be accorded protection. 297 § 4:4 Common-Law Fair-Comment Privilege 298 § 4:4.1 Generally The common-law fair-comment privilege is now largely obsolete as a result of developments in constitutional doctrine. It may nonetheless retain some vitality in the wake of Milkovich, especially by filling in gaps in protection that remain. 299 The fair-comment privilege was established primarily to protect public debate by sheltering communications about matters of public concern.300 Other threads of rationale underlying the protection are: •that comment cannot be “false”and therefore cannot be actionable;301 •that comment will be understood to be merely an individual viewpoint and will therefore tend not to injure reputation; 302 and 297.Milkovich, 497 U.S. at 17;see also N.Y. Times Co. v. Sullivan, 376 U.S. 254, 285 (1964). 298.“Fair comment”was once dealt with as just one of the many qualified common-law privileges; chapter 9 is devoted to those privileges. Texas has a statute incorporating “fair comment.”TEX. CIV. PRAC. & REM. CODE § 73.002(b)(2);see, e.g., Golden Bear Distrib. Sys., Inc. v. Chase Revel, Inc., 708 F.2d 944, 9 Media L. Rep. (BNA) 1857 (5th Cir. 1983) (Tex. law). 299.See Jankovic v. Int’l Crisis Grp., 593 F.3d 22, 38 Media L. Rep. 1399 (D.C. Cir. 2010) (noting that the defendant invoked the fair-comment privilege, albeit unsuccessfully); Lane v. Random House, Inc., 985 F. Supp. 141, 23 Media L. Rep. (BNA) 1385 (D.D.C. 1995) (applying common-law privi- lege post-Milkovich); Cassidy v. Merin, 244 N.J. Super. 466, 582 A.2d 1039, 1048 (1990) (same). Statements not about matters of public interest may also require common-law protection.See section 4:2.4[C], supra. 300.See Milkovich v. Lorain Journal Co., 497 U.S. 1, 13, 17 Media L. Rep. (BNA) 2009 (1990); RESTATEMENT OF TORTS § 606(1) (1938).“The fair comment privilege developed because common law courts recognized early on that actions for defamation could frustrate the valuable discourse fostered by the free flow of evaluative ideas.”West v. Thomson News- papers, 872 P.2d 999, 1013 (Utah 1994) (citation omitted). 301.See, e.g., Potts v. Dies, 132 F.2d 734 (D.C. Cir. 1942),cert. denied, 319 U.S. 762 (1943). 302.Cf. discussion of epithets in section 2:4.7,supra. § 4:4 SACK ON DEFAMATION 4 –68 •that, so long as the factual basis for commentary is set forth or readily available, as the common-law privilege requires, readers may judge for themselves the validity of the opinion expressed.303 § 4:4.2 Underlying Facts, Stated and Unstated Courts in most states have held that fair comment is privileged only if it is based upon facts “truly stated.”304 The question is therefore whether the “subject matter was indicated with sufficient clarity to justify the comment being made.”305 The rule finds justification in the view that, if the facts are stated, readers are able to judge for themselves whether the comment is well-founded. 306 An unsound comment on disclosed facts should reflect more on the person making it than on the person about whom comment is made. The privilege extends also to comments on facts that are common knowledge or readily accessible to the reader. 307 This extension 303.See, e.g., Leers v. Green, 24 N.J. 239, 131 A.2d 781, 787–88 (1957); Holy Spirit Ass’n v. Sequoia Elsevier Publ’g Co., 4 Media L. Rep. (BNA) 2311 (Sup. Ct. N.Y. Cty. 1979). 304.See Mashburn v. Collin, 355 So. 2d 879, 885, 3 Media L. Rep. (BNA) 1673 (La. 1977);see also Piscatelli v. Smith, 424 Md. 294, 315, 35 A.3d 1140, 1152, 40 Media L. Rep. (BNA) 1262 (2012) (“The fair comment privilege protects an opinion only where the facts on which it is based are truly stated or privileged or otherwise known either because the facts are of common knowledge or because, though perhaps unknown to a particular recipient of the communication, they are readily accessible to him.”) (internal quotation marks omitted); Parsons v. Age-Herald Publ’g Co., 181 Ala. 439, 450, 61 So. 345, 350 (1913) (“The privilege is limited to comment or criticism, and must be with regard to admitted or proven facts or conduct. Such comment should not go beyond the expression of legitimate inference, conclusion, or opinion, based upon such matters; and, if it does, it cannot be regarded as fair.”). 305.Coleman v. Newark Morning Ledger Co., 29 N.J. 357, 149 A.2d 193, 206 (1959). 306.Brewer v. Hearst Publ’g Co., 185 F.2d 846, 850 (7th Cir. 1950); Leers v. Green, 24 N.J. 239, 131 A.2d 781 (1957); Holy Spirit Ass’n v. Sequoia Elsevier Publ’g Co., 4 Media L. Rep. (BNA) 2311 (Sup. Ct. N.Y. Cty. 1979). 307.See Fisher v. Wash. Post Co., 212 A.2d 335, 338 (D.C. 1965); Mashburn v. Collin, 355 So. 2d 879, 96 A.L.R.3d 590, 3 Media L. Rep. (BNA) 1673 (La. 1977); RESTATEMENT OF TORTS § 606(a)(ii) (1938).Mashburn is a particularly interesting, scholarly opinion. The Supreme Court of Louisiana considered a colorful, devastating critique of a restaurant:“T ’aint Cajun, t’aint French, t’aint Country American, t’aint good.”It called the restau- rant “a travesty of pretentious amateurism,”and described the food as covered by “hideous sauces,”one of which was an “ugly sauce that tastes too sweet and thick and makes you want to scrape off the glop.”The fare, according to the review, included “badly overcooked fish”and “trout à la § 4:4.2Opinion 4 –69(Sack, 5th ed., 4/17) protects continuing commentary on matters with which the reader is likely already to be familiar, such as headline news, without requiring the publisher to repeat on each occasion the details of the event. It also protects artistic, gustatory, and similar reviews. It would, of course, be impossible for a motion-picture reviewer to convey a critical review only after publishing the “facts”on which it is based; it would be more difficult still to convey the “facts”upon which a review of a restaurant is based, short of sharing a meal with each reader, listener, or watcher. Any of them can, at least theoretically, determine the facts by attending the proper motion-picture theater or dining at the designated restaurant. Whether he or she would want to do so after reading a particularly unfavorable review is open to doubt. 308 In determining whether facts upon which a comment is based are accurate, the rules of construction applicable to the proof of truth come into play. 309 Minor errors of fact, such as who followed whom in order of presentation of a critically reviewed program, do not consti- tute falsity, 310 so long as the “gist”or “sting”of the factual allegations is accurate. 311 Nor can liability attach if the underlying facts, although false, are privileged, since it is the privileged factual allegation, not the opinion, that is slanderous or libelous. 312 green plague.”It was held constitutionally protected. On these principles, adverse comment on an unpublished manuscript arguably would not be protected. Hill,Defamation and Privacy Under the First Amendment, 76 COLUM. L. REV. 1205, 1243 (1976). 308.See Moldea v. N.Y. Times Co., 15 F.3d 1137, 1146, 22 Media L. Rep. (BNA) 1321,modified on reh’g, 22 F.3d 310, 22 Media L. Rep. (BNA) 1673 (D.C. Cir.),cert. denied, 513 U.S. 875 (1994). It is indeed difficult, for example, to imagine a remaining desire to dine at the restaurant reviewed by the critic in Mashburn v. Collin, 355 So. 2d 879 (La. 1977), or to attend a performance of the Cherry Sisters, Cherry v. Des Moines Leader, 114 Iowa 298, 86 N.W. 323 (1901), after reading the Des Moines Register ’s reviews of their act—although the Cherry Sisters apparently prospered after the reviews began rolling in.See Gartner,Fair Comment, AM. HERITAGE, Oct. 1982, at 28–31. 309.See section 3:7,supra. 310.Orbach v. N.Y. News, Inc., 3 Media L. Rep. (BNA) 2229 (Sup. Ct. N.Y. Cty. 1978). 311.La Rocca v. N.Y. News, Inc., 156 N.J. Super. 59, 383 A.2d 451, 3 Media L. Rep. (BNA) 2048 (1978). 312.Cole Fischer Rogow, Inc. v. Carl Ally, Inc., 29 A.D.2d 423, 288 N.Y.S.2d 556, 563–64 (1st Dep’t 1968),aff ’d on other grounds, 25 N.Y.2d 943, 305 N.Y.S.2d 154, 252 N.E.2d 633 (1969) (citing 1 HARPER & JAMES, THE LAW OF TORTS 456 (1956)); Yerkie v. Post-Newsweek Stations, 470 F. Supp. 91, 94, 4 Media L. Rep. (BNA) 2566 (D. Md. 1979) (citing Brush-Moore Newspapers, Inc. v. Pollitt, 220 Md. 132, 151 A.2d 530 (1959)). § 4:4.2 SACK ON DEFAMATION 4 –70 § 4:4.3 Protection for Misstatement of Underlying Facts According to the minority view, comment remains privileged, at least under certain circumstances, even if the underlying facts upon which it is based are inaccurately stated or, in some cases, even if they are not stated at all. 313 In a seminal decision by the District of Columbia Circuit, factual allegations contained in commentary about a congressman were held to be broadly privileged on the basis of fundamental principles of democratic debate. 314 This comprehensive privilege seems to have been largely limited to public officials and candidates for public office. Outside the political arena, in the majority of jurisdictions the privilege has generally been “restricted to extend protection only to opinion, not to misstatements of fact.”315 It was the minority view protecting mistaken statements of fact about political matters that provided the basis for the doctrine enunciated by the Supreme Court in New York Times Co. v. Sullivan.316 § 4:4.4 Persons Subject to Fair Comment Under the common law, courts defined people subject to fair comment according to their involvement in matters of “public 313.See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 280 n.20 (1964);see also Coleman v. MacLennan, 78 Kan. 711, 98 P. 281 (1908). After New York Times, more courts have adopted this view.See, e.g., Klahr v. Winterble, 4 Ariz. App. 158, 418 P.2d 404 (1966); Kapiloff v. Dunn, 27 Md. App. 514, 343 A.2d 251 (1975). 314.Sweeney v. Patterson, 128 F.2d 457 (D.C. Cir.),cert. denied, 317 U.S. 678 (1942). 315.Phillips v. Evening Star Newspaper Co., 424 A.2d 81, 2 Media L. Rep. (BNA) 2201 (D.C. Super. 1977),aff ’d, 424 A.2d 78, 6 Media L. Rep. (BNA) 2191 (D.C. 1980),cert. denied, 451 U.S. 989 (1981). In Phillips, the court said that in requiring facts to be truly stated it was embracing the majority viewpoint and rejecting the minority viewpoint which “allows ‘fair com- ment’on misstatements of fact as well as opinion.”Id., 424 A.2d at 88. The court observed that the nature and scope of the privilege have been the subject of judicial confusion.Cf. Edwards v. Hall, 234 Cal. App. 3d 886, 908–09, 285 Cal. Rptr. 810, 823, 19 Media L. Rep. (BNA) 1969 (1991) (“‘In California, . . . the cases have extended the fair comment privilege so that, where malice is disproved, the privilege applies not only to comment (opinions) but to false statements of fact as well.’”) (quoting Inst. of Athletic Motivation v. Univ. of Ill., 114 Cal. App. 3d 1, 8–9 n.4, 170 Cal. Rptr. 411 (1980) (citation omitted)). 316.N.Y. Times Co. v. Sullivan, 376 U.S. 254, 280 (1964). § 4:4.4Opinion 4 –71(Sack, 5th ed., 4/17) interest,”317 “public concern,”318 or both, 319 or their dealings in matters of public importance. 320 Discussion of political personages was particularly well guarded, 321 but any persons who presented themselves or their services or goods to the public were considered to be open to criticism with respect to the offering. 322 Fair-comment cases often involved persons who might also have been characterized as “public figures.”323 As one court put it, a person who comes “prominentlyforwardinanywayandbecomesapublicoraquasi- public figure . . . invites free expression of public opinion, including criticism,”such criticism being privileged so long as the privilege is not abused.324 The privilege attached to statements about people who entered the “public arena,”325 public officers of a foreign state, 326 and those who held “positions of importance in their community ”:327 Traditionally, fair comment concerned persons, institutions or groups who voluntarily injected themselves into the public scene or affected the community ’s welfare, such as public officials, political candidates, community leaders from the private sector or private enterprises which affected public welfare, persons taking a public position on a matter of public concern, and those who offered their 317.Brewer v. Hearst Publ’g Co., 185 F.2d 846, 850 (7th Cir. 1950); Piscatelli v. Smith, 424 Md. 294, 314, 35 A.3d 1140, 1152, 40 Media L. Rep. (BNA) 1262 (2012) (“legitimate public interest”); Fisher v. Wash. Post Co., 212 A.2d 335, 338 (D.C. 1965); A.S. Abell Co. v. Kirby, 227 Md. 267, 176 A.2d 340, 90 A.L.R.2d 1264 (1961). 318.Wehringer v. Newman, 60 A.D.2d 385, 400 N.Y.S.2d 533, 3 Media L. Rep. (BNA) 1708 (1st Dep’t 1978). 319.Beauharnais v. Pittsburgh Courier Publ’g Co., 243 F.2d 705, 708 (7th Cir. 1957); Herman v. Labor Coop. Educ. & Publ’g Soc’y, 139 F. Supp. 35, 38 (D.D.C. 1956); Devany v. Shulman, 184 Misc. 613, 53 N.Y.S.2d 401 (Bronx Cty. 1944),aff ’d, 269 A.D. 1022, 59 N.Y.S.2d 401 (1st Dep’t 1945). 320.Orr v. Argus-Press Co., 586 F.2d 1108, 4 Media L. Rep. (BNA) 1593 (6th Cir. 1978),cert. denied, 440 U.S. 960, 4 Media L. Rep. (BNA) 2536 (1979). 321.See Baldine v. Sharon Herald Co., 280 F. Supp. 440 (W.D. Pa. 1966),aff ’d, 391 F.2d 703 (3d Cir. 1968); Julian v. Am. Bus. Consultants, Inc., 2 N.Y.2d 1, 137 N.E.2d 1, 155 N.Y.S.2d 1 (1956). According to the first Restatement, the privilege covered all “fair comment”on government officers and employees. RESTATEMENT OF TORTS § 607 (1938). 322.Flamm v. Am. Ass’n of Univ. Women, 201 F.3d 144, 150, 28 Media L. Rep. (BNA) 1329 (2d Cir. 2000). 323.Hill,Defamation and Privacy Under the First Amendment, 76 COLUM. L. REV. 1205, 1229 n.113 (1976). 324.Edmonds v. Delta Democrat Publ’g Co., 230 Miss. 583, 93 So. 2d 171, 173 (1957). 325.Afro-Am. Publ’g Co. v. Jaffe, 366 F.2d 649 (D.C. Cir. 1966). 326.RESTATEMENT OF TORTS § 607(3) (1938);cf. Sharon v. Time, Inc., 599 F. Supp. 538, 563, 11 Media L. Rep. (BNA) 1153 (S.D.N.Y. 1984). 327.Maidman v. Jewish Publ’ns, Inc., 54 Cal. 2d 643, 7 Cal. Rptr. 617, 355 P.2d 265, 87 A.L.R.2d 439 (1960). § 4:4.4 SACK ON DEFAMATION 4 –72 creations for public approval such as artists, performers and athletes.328 It was not necessary for the subject to be of interest to the entire community, so long as a substantial sector of the community was concerned.329 Those subject to fair comment have included: •advertising agencies whose creations are put before the public; 330 •places of public accommodation, such as hotels and restaurants;331 •educational, charitable, and religious institutions; 332 •manufacturers whose goods are on sale to the public, and their products;333 •artists and art galleries; 334 •entertainers;335 •athletes;336 •authors;337 •scientists;338 •independent government contractors; 339 328.Mashburn v. Collin, 355 So. 2d 879, 882, 96 A.L.R.3d 590, 3 Media L. Rep. (BNA) 1673 (La. 1977) (citation omitted). 329.Klahr v. Winterble, 4 Ariz. App. 158, 418 P.2d 404 (1966); Maidman v. Jewish Publ’ns, Inc., 54 Cal. 2d 643, 7 Cal. Rptr. 617, 621, 355 P.2d 265, 87 A.L.R.2D 439 (1960); Reaves v. Foster, 200 So. 2d 453 (Miss. 1967). 330.Cole Fischer Rogow, Inc. v. Carl Ally, Inc., 29 A.D.2d 423, 288 N.Y.S.2d 556 (1st Dep’t 1968),aff ’d on other grounds, 25 N.Y.2d 943, 305 N.Y.S.2d 154, 252 N.E.2d 633 (1969). 331.Twenty-Five E. 40th St. Rest. Corp. v. Forbes, Inc., 37 A.D.2d 546, 322 N.Y.S.2d 408 (1st Dep’t 1971),aff ’d, 30 N.Y.2d 595, 282 N.E.2d 118, 331 N.Y.S.2d 29 (1972); Steak Bit of Westbury, Inc. v. Newsday, Inc., 70 Misc. 2d 437, 334 N.Y.S.2d 325 (Nassau Cnty. 1972);see also Mashburn v. Collin, 355 So. 2d 879, 96 A.L.R.3d 590, 3 Media L. Rep. (BNA) 1673 (La. 1977) (constitutional protection). 332.RESTATEMENT OF TORTS § 608 (1938). 333.Safe Site, Inc. v. Nat’l Rifle Ass’n, 253 F. Supp. 418 (D.D.C. 1966); Dairy Stores, Inc. v. Sentinel Publ’g Co., 104 N.J. 125, 516 A.2d 220, 13 Media L. Rep. (BNA) 1594 (1986). 334.Fisher v. Wash. Post Co., 212 A.2d 335 (D.C. 1965). 335.Julian v. Am. Bus. Consultants, Inc., 22 N.Y.2d 1, 137 N.E.2d 1, 155 N.Y.S.2d 1 (1956); Orbach v. N.Y. News, Inc., 3 Media L. Rep. (BNA) 2229 (Sup. Ct. N.Y. Cty. 1978). 336.Under the same rationale as entertainers.See Mashburn v. Collin, 355 So. 2d 879, 96 A.L.R.3d 590, 3 Media L. Rep. (BNA) 1673 (La. 1977) (dicta). 337.Pearson v. Fairbanks Publ’g Co., 413 P.2d 711 (Alaska 1966). 338.RESTATEMENT OF TORTS § 609 (1938). 339.Williams v. Daily Review, Inc., 236 Cal. App. 2d 405, 46 Cal. Rptr. 135 (1965). § 4:4.4Opinion 4 –73(Sack, 5th ed., 4/17) •those who appeal for public support, participate in public activities, enter the public arena, or invite public judgment; 340 •those who mount a rostrum for any purpose; 341 •those who begin controversies even though their subject matter is not theretofore independently a matter of public controversy; 342 •people who call “public attention to [their] own grievances or those of [their] class”;343 •those who, in one form or another, seek public funds; 344 and •persons involved in public criminal trials relating to serious charges.345 The privilege also extended to commentary about those who exercise the privilege by criticizing publicly the works of others. 346 § 4:4.5 Scope of Privilege The privilege of “fair comment”does not protect criticism of every facet of a person’s life. 347 Protected opinion is restricted to commen- tary on matters rendering a person subject to such criticism—whatever makes that person “public.”348 Mere ad hominem attacks are not countenanced. 349 The privilege accorded commentary on political figures remains, nonetheless, extremely broad because any 340.Afro-Am. Publ’g Co. v. Jaffe, 366 F.2d 649, 656–57 (D.C. Cir. 1966) (citing authorities). 341.Edmonds v. Delta Democrat Publ’g Co., 230 Miss. 583, 93 So. 2d 171 (1957). 342.See RESTATEMENT OF TORTS § 610 cmt. g (1938). 343.Julianv.Am.Bus.Consultants,Inc.,2N.Y.2d1,137N.E.2d1,155N.Y.S.2d1 (1956). 344.Murphy v. Daytona Beach Humane Soc’y, Inc., 176 So. 2d 922 (Fla. Dist. Ct. App. 1965);see RESTATEMENT OF TORTS § 607(2) (1938). 345.Piscatelli v. Smith, 424 Md. 294, 315, 35 A.3d 1140, 1152, 40 Media L. Rep. (BNA) 1262 (2012). 346.See RESTATEMENT OF TORTS § 610 cmt. g (1938). 347.Under the common law, there apparently were no “all purpose”public figures as there are under Gertz, except insofar as commentary on public officials and candidates for public office was broadly protected. 348.Fisher v. Wash. Post Co., 212 A.2d 335 (D.C. 1965); Edmonds v. Delta Democrat Publ’g Co., 230 Miss. 583, 93 So. 2d 171, 173 (1957);see also Hartmann v. Bos. Herald-Traveler Corp., 323 Mass. 56, 80 N.E.2d 16, 20 (1948). Private conduct may be commented upon insofar as it affects public conduct. RESTATEMENT OF TORTS §§ 606(2), 609 cmt. c (1938). 349.Brewer v. Hearst Publ’g Co., 185 F.2d 846, 850 (7th Cir. 1950); Pearson v. Fairbanks Publ’g Co., 413 P.2d 711 (Alaska 1966); Devany v. Shulman, 184 Misc. 613, 53 N.Y.S.2d 401 (Sup. Ct. Bronx Cty. 1944),aff ’d, 269 A.D. 1022, 59 N.Y.S.2d 401 (1st Dep’t 1945). § 4:4.5 SACK ON DEFAMATION 4 –74 statement touching a person’s fitness for public office is within the protection.350 § 4:4.6 Defeasance of Privilege The common-law privilege of fair comment is lost when an opinion is published with “malice”in the common-law sense, 351 that is, either in bad faith or with a bad motive. 352 While an occasional court has shown an inclination to import the New York Times “actual malice”standard—knowing or “reckless”falsehood353— that approach is inconsistent with the notion that opinion cannot be proved false and “actual malice,”therefore, cannot be established. Explicit in the term “fair comment”is the requirement that opinions be fair. 354 The test is “whether a reasonable man may honestly entertain such an opinion.”355 Courts have occasionally read the fairness requirement together with the requirement that the underlying facts be accurately stated. The Supreme Court of Mississippi said that, to be privileged, comment must be “fair [only] in the sense 350.Coleman v. MacLennan, 78 Kan. 711, 98 P. 281, 286 (1908),quoted in N.Y. Times Co. v. Sullivan, 376 U.S. 254, 281 (1964): [I]n measuring the extent of a candidate’s proof of character it should always be remembered that the people have good authority for believing that grapes do not grow on thorns nor figs on thistles. For the limitations on the common-law privilege applied to comment on public figures, see RESTATEMENT OF TORTS § 607 cmt. i (1938). 351.Beauharnais v. Pittsburgh Courier Publ’g Co., 243 F.2d 705, 708 (7th Cir. 1957); Herman v. Labor Coop. Educ. & Publ’g Soc’y, 139 F. Supp. 35, 38 (D.D.C. 1956) (malice in either common-law or New York Times sense will defeat privilege); Wehringer v. Newman, 60 A.D.2d 385, 400 N.Y.S.2d 533, 3 Media L. Rep. (BNA) 1708 (1st Dep’t 1978). For discussion of common-law malice, see section 9:3.1,infra. 352.Potts v. Dies, 132 F.2d 734 (D.C. Cir. 1942),cert. denied, 319 U.S. 762 (1943); Yetman v. English, 168 Ariz. 71, 74, 811 P.2d 323, 326 (1991) (dicta). There is no privilege if the criticism is made for the sole purpose of inflicting harm. 353.See Pearson v. Fairbanks Publ’g Co., 413 P.2d 711, 713 (Alaska 1966); Marchesi v. Franchino, 283 Md. 131, 387 A.2d 1129 (1978). 354.Hill,Defamation and Privacy Under the First Amendment, 76 COLUM. L. REV. 1205, 1229–30 n.122 (1976) (citing Streeter v. Emmons Cty. Farmers’Press, 57 N.D. 438, 443, 222 N.W. 445, 457 (1928)). 355.Grower v. State, 23 A.D.2d 506, 255 N.Y.S.2d 135 (3d Dep’t 1965),aff ’d, 19 N.Y.2d 625, 224 N.E.2d 899, 278 N.Y.S.2d 408 (1967). There is authority for the proposition that this qualification for the fair-comment privilege was dispensed with for criticism of public officials. RESTATEMENT OF TORTS § 607 cmt. c (1938). § 4:4.6Opinion 4 –75(Sack, 5th ed., 4/17) that the reader can understand the factual basis for the opinions containing the criticism.”356 Although there is some judicial authority on the meaning of fairness, Professor Hill, in his seminal law review article, observed that courts seem to be content with the general statement that the fairness or reasonablenessofacommentisforthejury.357 Itispreciselythisinability toguidetheprospectivespeakerandthepowergiventoadverselyminded juries that have rendered the fair-comment privilege inadequate. Even in the same state, courts have divided as to whether the vituperative nature of criticism alone can remove the fair-comment privilege. If language is too strong, does it thereby become “unfair ”? Some courts have taken the position that, if the other elements of the fair-comment privilege are met, the opinion is not defamatory “no matter how severe, hostile, rough, caustic, bitter, sarcastic or satirical [it is,] for these are the very tools of criticism.”358 Others have required that the comment not be intemperate, 359 unreasonably violent or vehement, or “excessively vituperative,”and have insisted that the opinion be presented in a “proper manner.”360 All agree, however, that “mere exaggeration, slight irony or wit, or all of those delightful touches of style that go to make an article readable, do not push beyond the limitations of fair comment.”361 356.Edmonds v. Delta Democrat Publ’g Co., 230 Miss. 583, 93 So. 2d 171, 173 (1957);accord Julian v. Am. Bus. Consultants, Inc., 2 N.Y.2d 1, 7, 137 N.E.2d 1, 155 N.Y.S.2d 1 (1956). 357.Hill,Defamation and Privacy Under the First Amendment, 76 COLUM. L. REV. 1205, 1233 (1976) (citing Van Arsdale v. Time, Inc., 35 N.Y.S.2d 951 (Sup. Ct. N.Y. Cty.),aff ’d, 265 A.D. 919, 39 N.Y.S.2d 413 (1st Dep’t 1942)). 358.Orbach v. N.Y. News, Inc., 3 Media L. Rep. (BNA) 2229 (Sup. Ct. N.Y. Cty. 1978) (citing MacDonald v. Sun Printing & Publ’g Ass’n, 45 Misc. 441, 92 N.Y.S. 37 (Kings Cty. 1904));see also Beauharnais v. Pittsburgh Courier Publ’g Co., 243 F.2d 705, 708 (7th Cir. 1957); Bucher v. Roberts, 198 Colo. 1, 595 P.2d 239 (1979); Leers v. Green, 24 N.J. 239, 131 A.2d 781, 789 (1957); Hoeppner v. Dunkirk Printing Co., 254 N.Y. 95, 172 N.E. 139, 72 A.L.R. 913 (1930). 359.Devany v. Shulman, 184 Misc. 613, 53 N.Y.S.2d 401 (Sup. Ct. Bronx Cty. 1944),aff ’d, 269 A.D. 1022, 59 N.Y.S.2d 401 (1st Dep’t 1945). 360.Hill,Defamation and Privacy Under the First Amendment, 76 COLUM. L. REV. 1205, 1229–30 nn.118–21 (1976) (citing England v. Daily Gazette Co., 143 W. Va. 700, 718, 104 S.E.2d 306, 316 (1958); Smith v. Levitt, 227 F.2d 855, 857 (9th Cir. 1955); and Bausewine v. Norristown Herald, Inc., 351 Pa. 634, 645, 41 A.2d 736, 742,cert. denied, 326 U.S. 724 (1945)). 361.Briarcliff Lodge Hotel, Inc. v. Citizen-Sentinel Publishers, Inc., 260 N.Y. 106, 118, 183 N.E. 193 (1932). 4 –76 § 4:4.6 SACK ON DEFAMATION § 4:5 Opinion and Other Speech Respecting Religion 362 James Madison commented, in his Memorial and Remonstrance Against Religious Assessments,363 that [a] bill [establishing a provision for teachers of the Christian Religion in Virginia] implies either that the Civil Magistrate is a competent Judge of Religious truth; or that he may employ Religion as an engine of Civil policy. The first is an arrogant pretension falsified by the contradictory opinions of Rulers in all ages, and throughout the world: The second an unhallowed perversion of the means of salvation. 364 Those sentiments are reflected in the principle that the freedom of religion clauses of the First Amendment protect commentary about religious tenets:“[W]here the issue involves the validity of a religious denomination’s beliefs, the First Amendment would bar such a claim, as it would embroil the state in an inquiry into the truth or falsity of beliefs or teachings. . . .”365 As the Virginia Supreme Court observed, 362.See also section 2:4.20 and section 2:10.2, text at notes 760–61. 363.James Madison,Memorial and Remonstrance Against Religious Assess- ments, 2 THE WRITINGS OF JAMES MADISON 183–91 (G. Hunt ed. 1901), set forth as Appendix II to the opinion of Douglas, J., dissenting, in Walz v. Tax Comm’n of N.Y., 397 U.S. 664, 722 (1970). 364.Id. ¶ 5. 365.Holy Spirit Ass’n v. Harper & Row, Publishers, Inc., 101 Misc. 2d 30, 420 N.Y.S.2d 56, 4 Media L. Rep. (BNA) 2144 (Sup. Ct. N.Y. Cty. 1979). For a thorough discussion of the principle, see Kavanagh v. Zwilling, 997 F. Supp. 2d 241, 250, 42 Media L. Rep. (BNA) 1492 (S.D.N.Y. 2014) (summarizing:“[W]here a court or jury would have to determine the truth of the defendants’statements . . . and, in doing so, would examine and weigh competing views of church doctrine, the result is entanglement in a matter of ecclesiastical concern that is barred by the First Amendment.”) (internal quotation marks omitted; ellipsis in original);see also Church of Scientology Int’l v. Daniels, 992 F.2d 1329, 1334, 21 Media L. Rep. (BNA) 1426 (4th Cir. 1993) (“Courts have no authority to determine what is or is not a religion, and no legal formula by which to measure the truth or philosophical acceptability of an entity ’s spiritual beliefs.”); Klagsbrun v. Va’ad Harabonim of Greater Monsi, 53 F. Supp. 2d 732, 741 (D.N.J. 1999) (claims against rabbis by members of Jewish community barred); Yaggi v. Ind. Ky. Synod Lutheran Church, 860 F. Supp. 1194, 1198 (W.D. Ky. 1994) (defamation claim by minister against parishioners barred),aff ’d, 64 F.3d 664 (6th Cir. 1995); Farley v. Wis. Evangelical Lutheran Synod, 821 F. Supp. 1286, 1290 (D. Minn. 1993) (defamation claims in connection with termination of minister by church barred); Church of Scientology v. Siegelman, 475 F. Supp. 950, 5 Media L. Rep. (BNA) 2021 (S.D.N.Y. 1979); Ex parte Bole, 103 So. 3d 40 (Ala. 2012); Seefried v. Hummel, 148 P.3d 184 (Colo.Ct.App.2005)(nocauseofactionwithrespecttostatementsmadeina church meeting at which there was a discussion as to whether the pastor 4 –77(Sack, 5th ed., 4/17) § 4:5Opinion should be terminated); Thibideau v. Am. Baptist Churches of Conn., 120 Conn.App. 666, 994 A.2d 212 (2010) (“[T]he plaintiff ’s claims[, includ- ing that for defamation, relating to the defendants’refusal to recognize the plaintiff ’s ordination or to assist him in obtaining employment with its churches] are simply too closely related to the ecclesiastical functions of the church and the religious aspects of the plaintiff ’s relationship with the defendant to be treated as simple civil wrongs able to be addressed solely by neutral secular principles of law without consideration of areas protectedfrominquirybythefirstamendment.”);Heardv.Johnson,810A.2d 871, 883 (D.C. 2002) (“When a defamation claim arises entirely out of a church’s relationship with its pastor, the claim is almost always deemed to be beyond the reach of civil courts because resolution of the claim would require an impermissible inquiry into the church’s bases for its action.”); Goodman v. Temple Shir Ami, Inc., 712 So. 2d 775 (Fla. Dist. Ct. App. 1998) (statements made with respect to termination of rabbi’s services); First United Church v. Udofia, 223 Ga. App. 849, 479 S.E.2d 146 (1996) (church’s charges of witchcraft); O ’Connor v. Diocese of Honolulu, 77 Haw. 389, 885 P.2d 361 (1994) (statements made with respect to plaintiff ’s excommunication); Stepek v. Doe, 392 Ill. App. 3d 739, 910 N.E.2d 655, 331 Ill. Dec. 246 (2009) (allegations, during disciplinary hearings, of sexual improprieties of a Roman Catholic priest); Jenkins v. Trinity Lutheran Church, 356 Ill. App. 3d 504, 512–13, 825 N.E.2d 1206, 1214, 292 Ill. Dec. 195 (2005) (“remarks [not actionable if they] were inextricably involved in the discipline, faith, administration or rules of the church”); Thomas v. Fuerst, 349 Ill. App. 3d 929, 935, 803 N.E.2d 619, 624, 281 Ill. Dec. 215, 220 (2004) (complaint dismissed where “[r]esolution of the [defamation] counts cannot be made without extensive inquiry by civil courts into religious law and polity ”); Ind. Area Found. of the United Methodist Church, Inc. v. Snyder, 953 N.E.2d 1174 (Ind. Ct. App. 2011) (statements in connection with assessing the plaintiff ’s fitness fortheministry);Purdumv.Purdum,48Kan.App.2d938,301P.3d718,726 (2013) (concluding that statements made to organs of the Roman Catholic Church in the course of a marriage annulment proceeding could not be actionable under the First Amendment because “[t]he very nature of [the defendant’s] defenses and [the plaintiff ’s] defamation action will entangle the civil courts in the details of the administration and proce- dures of the Archdiocese’s annulment proceedings”); Downs v. Roman Catholic Archbishop of Balt., 111 Md. App. 616, 683 A.2d 808 (1996) (remarks made with respect to plaintiff ’s denial of consideration for priesthood); Hiles v. Episcopal Diocese of Mass., 437 Mass. 505, 773 N.E.2d 929 (2002) (exploring the extent to which statements connected with an intradenominational dispute can be the subject of a defamation suit consistent with the First Amendment); Mallette v. Church of God Int’l, 789 So. 2d 120, 123 (Miss. Ct. App. 2001) (“A civil court is forbidden, under the First and Fourteenth Amendments to the United States Con- stitution, from becoming involved in ecclesiastical disputes.”) (citing Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976)); Brady v. Pace, 108 S.W.3d 54 (Mo. Ct. App. 2003) (statements by pastors with respect to dissensionwithin church); Sieger v. Union of OrthodoxRabbis,767 N.Y.S.2d 78, 1 A.D.3d 180 (1st Dep’t 2003) (statement in connection with religious divorce proceedings); Anderson v. Watchtower Bible & Tract Soc’y of N.Y., Inc., 2007 Tenn. App. LEXIS 29, 2007 WL 161035 (2007) (statements as to expulsion of church members); Thiagarajan v. Tadepalli, 430 S.W.3d 589 4 –78 § 4:5 SACK ON DEFAMATION “[M]ost courts that have considered the question whether the Free Exercise Clause divests a civil court of subject matter jurisdiction to consider a pastor ’s defamation claims against a church and its officials have answered that question in the affirmative.”366 In some jurisdictions, however, a court can decide a defamation or invasion of privacy claim relating to church affairs so long as the court “do[es] (Tex. App. 2014); Jennison v. Prasifka, 391 S.W.3d 660, 666 (Tex. App. 2013) (applying the “ecclesiastical abstention doctrine”where the statements in question were made “in the course of the church disciplinary process”); Pattonv.Jones,212S.W.3d541(Tex.App.2006)(allegeddefamationofyouth ministries director by various church officials in course of director ’s termina- tion);cf.Briggs&StrattonCorp.v.Nat’lCatholicReporter,978F.Supp.1195 (D. Wis. 1997) (accepting the principle but finding truth and falsity issues in the case before it could be decided without resolving religious doctrine questions); Legrande v. Emmanuel, 889 So. 2d 991, 994 (Fla. Dist. Ct. App. 2004) (reversing grant of defendant’s motion to dismiss defamation lawsuit that was based in part on defendants’assertion that the plaintiffs, a minister and his wife, had used money stolen from their church to buy a luxury automobile, because the “suit involve[d] a neutral principle of tort law that does not involve ‘excessive’entanglement in internal church matters or in the interpretation of religious doctrine or ecclesiastical law ”); Trice v. Burress, 137 P.3d 1253, 1257 n.7 (Okla. Civ. App. 2006) (concluding that statement made by minister in connection with termination of youth director was not actionable because of First Amendment concerns, but deciding that even if it was otherwise actionable, it would be protected by qualified common-interest privilege). Where a defamatory communication is circulated within the church community, it may also be protected by the qualified “common interest” privilege.See id.;see also section 9:2.3,infra. More generally, the Supreme Court has observed,“[T]he First and Fourteenth Amendments mandate that civil courts shall not disturb the decisions of the highest ecclesiastical tribunal within a church of hierarchical polity, but must accept such decisions as binding.”Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 709 (1976). The protection is sometimes referred to as the “ecclesiastical absten- tion doctrine.”See section 2:4.20,supra.“There is some ambiguity about whether the prohibition on civil courts considering questions of canonical law or policy derives from the Free Exercise Clause or the Establishment Clause.”See Kavanagh v. Zwilling, 997 F. Supp. 2d 241, 250 n.9, 42 Media L. Rep. (BNA) 1492 (S.D.N.Y. 2014). 366.Cha v. Korean Presbyterian Church of Wash., 262 Va. 604, 615, 553 S.E.2d 511, 516 (2001). A court “lack[s] subject matter jurisdiction to review [a] plaintiff ’s claims . . . [where] [r]esolution of the . . . claims . . . would require[ ] that the . . . court adjudicate issues regarding the church’s governance, internal organization, and doctrine, and such judicial inter- vention would . . . limit[ ] the church’s right to select its religious leaders.” Id. at 612, 553 S.E.2d at 515. The Supreme Court of Pennsylvania considered the so-called “defer- ence rule”as applied to defamation cases in detail in Connor v. Archdiocese of Phila., 975 A.2d 1084 (Pa. 2009), holding that, in the case before it, the courts could adjudicate the dispute without treading on protected religious grounds. 4 –79(Sack, 5th ed., 4/17) § 4:5Opinion not need to inquire into or interpret religious matters to decide”the case.367 Where a defamatory falsehood that might have been immune had it been circulated within a religious community is circulated to the community at large, however, it may support a civil action. 368 367.See Doe ex rel. Doe v. Catholic Diocese of Rockford, 2015 IL App (2d) 140618, 38 N.E.3d 1239, 395 Ill. Dec. 483 (2015) (concluding that allegedly defamatory written complaint to pastor of church about the behavior of the petitioner ’s son was not covered by clergy-penitent privilege; inquiry into or interpretation of religious matters not asserted); Duncan v. Peterson, 359 Ill. App. 3d 1034, 835 N.E.2d 411, 421, 296 Ill. Dec. 377, 387 (2005) (citing Madsen v. Erwin, 395 Mass. 715, 727, 481 N.E.2d 1160, 1167 (1985) (“[T]he First Amendment religion provisions contain two concepts,‘freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.’”) (quoting Cantwell v. Connecticut, 310 U.S. 296, 303–04 (1940)); Guinn v. Church of Christ, 1989 OK 8, 775 P.2d 766 (1989); Tubra v. Cooke, 233 Or. App. 339, 225 P.3d 862 (pastor ’s jury verdict in case where he had been publicly accused of misusing church funds by church officials reinstated:“[W]e fail to understand how a defamatory statement accusing a pastor of theft is any more (or less) a matter of church ‘discipline, faith, internal organization, or ecclesiastical rule, custom, or law[,]’[Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713 (1976),] than is a defamatory statement accusing a pastor of child molestation.”),cert. denied, 562 U.S. 1256 (2010); Banks v. St. Matthew Baptist Church, 406 S.C. 156, 160–61, 750 S.E.2d 605, 607 (2013) (permitting the pursuit of such litigation where “[t]he truth or falsity of [the allegedly defamatory] statements [could] easily be ascertained by a court without any consideration of religious issues or doctrines”); Bowie v. Murphy, 271 Va. 126, 135, 624 S.E.2d 74, 79 (2006) (deciding that court can decide defamation claim arising out of events that led to the removal of a church deacon so long as it does not involve church governance and consideration of the case is otherwise “without reference to questions of faith and doctrine”) (citation and internal quotation marks omitted). 368.See Kliebenstein v. Iowa Conference of the United Methodist Church, 663 N.W.2d 404 (Iowa) (in letter mailed to persons outside the church, reference to church dissident as reflecting “the spirit of Satan”potentially actionable),cert. denied, 540 U.S. 977 (2003). 4 –80 § 4:5 SACK ON DEFAMATION