The Oregon Supreme Court Expands Protections Under The First Amendment In Defamation Claims
By Sarah Tuthill-Kveton
The Oregon Supreme Court issued a recent opinion in Neumann v. Liles further expanding protection of First Amendment rights with respect to claims of defamation. 358 Or 706 (2016). The Court presented a comprehensive test to determine if a statement is actionable. Neumann v. Liles is a case about review made on Google.com of a wedding venue by a participant (Liles) at the wedding. The court found that the statement was one of opinion and was not actionable based on the tenor of the overall post. Id. The statement in question is as follows:
Disaster!!!!! Find a different wedding venue
There are many other great places to get married, this is not that place! The worst wedding experience of my life! The location is beautiful the problem is the owners. Carol (female owner) is two faced, crooked, and was rude to multiple guests[s]. I was only happy with one thing. It was a beautiful wedding, when it wasn’t raining and Carol and Time stayed away. The owners did not make the rules clear to the people helping with set up even when they saw something they didn’t like they waited until the day of the wedding to bring it up. They also changed the rules as they saw fit. We were told we had to leave at 9pm, but at 8:15 they started telling the guests that they had to leave immediately. The ‘bridal suite’ was a tool shed that was painted pretty, but a shed all the same. In my opinion [s]he will find a way [sic] to keep your $500.00 deposit, and will try to make you pay even more.
The court concluded that several of Liles’ statements contained within the review were inconsistent with a positive wedding experience and could be construed as having a defamatory meaning. Neumann, 358 at 719–720. As a result, a reasonable factfinder could conclude the statements were false. Id. at 720. Moreover, the court concluded that because the statements were published and therefore libelous, they were actionable per se. Id. Despite each of these findings, the court ultimately held that the statements were protected under the First Amendment and were not actionable. Id. at 724. To understand the court’s holding, we examine the three part test the court used to reach its conclusion.
The court in Neumann first reviewed the general tenor of the statement. The first stage of the analysis is whether the entire work negates the impression that defendant was asserting objective facts about plaintiff. Id. at 720. The court explained that examination of Liles’s review in its entirety negated the impression that Liles was asserting objective facts about Neumann. Id. The general tenor of the piece, beginning with the word “[d]isaster,” clearly showed a subjective opinion. Id. However, the court noted that Liles also asserted that the business was grossly inadequate and poorly operated. Id. The court explained that if the statement about inadequate operation was read independently, one could conclude that Liles was asserting an objective fact. Id. Lile’s statement that Carol, the owner of the business, was two faced, crooked, rude to multiple guests and would do anything to keep the renters deposit, read independently, also arguably asserted an objective fact. Id. The court reasoned that those comments standing alone could create the impression that Neumann had wrongfully kept a deposit that she was not entitled to keep. Id. However, Liles was not a patron but a guest, and did not purchase wedding services from Neumann. So, in the end, despite the statements regarding the deposit and inadequately run business, the court held that “the general tenor of the review thus reflects Liles’s negative personal and subjective impressions and reactions as a guest at the venue and negates the impression that Liles was asserting objective facts.” Id. Therefore, the first inquiry into the three-part test was in favor of Liles and against Neumann.
Neumann highlights the significance of the language used when assessing the general tenor of a statement. Next, the court in Neumann applied the second part of the test — whether Liles’ use of figurative or hyperbolic language negated the impression that she was asserting objective facts. Nuemann, 358 at 721. The court explained that several of Liles’ statements could be considered as hyperbolic. Id. “In particular, the title of the review — which starts with the word ‘Disaster’ and is followed by a histrionic series of exclamation marks — is hyperbolic and sets the tone for the review.” Id. at 721. Therefore, the court concluded that the figurative and hyperbolic language negated the impression that Liles was asserting objective facts.
Finally, we turn to the last prong of the test. The court in Neumann assessed whether the statement is susceptible of being proven true or false. The court held that because Liles’ statement generally reflected a strong personal viewpoint as a guest at the wedding venue, his allegations were not susceptible of being proven true or false. The court did note that the language Liles used to describe the owner as “crooked” and would try and keep your $500 deposit, standing alone, could create the impression that Liles was asserting facts about Neumann. Viewed in the context of the remainder of the review, however, those statements were not provably false. Id. at 721–722.
As seen in Nuemann, the court has gone to considerable lengths to protect speech and to dismiss defamation claims. These days, rhetoric and spicy language appears to be on the rise. When defending a defamation claim, comparing and contrasting the statements of your clients, to that in Neuemann v. Liles, may prove to be persuasive that the statement as a whole is not actionable.