If the Speech Can't Be Taken Seriously, It Can't Support a Claim For Defamation

In Gardner v. Martino, the 9th Circuit handed down an important ruling that should be required reading for any opportunist looking to turn mere hurt feelings into a defamation suit payday. Tom Martino is a talk radio host who is prone to make the kinds of statements we expect from talk radio. He is hyperbolic, outspoken, rude, crude, and crass. One day he had Melissa Feroglia on the air. Feroglia was a disgruntled consumer who had a bad experience with Mt. Hood Polaris and complained about a jet ski she bought there and some apparently dishonest customer service she received. The dealer chose to file a defamation suit.

Martino filed a motion to dismiss under the Oregon Anti-SLAPP statute, Or. Rev. Stat. § 31.150. The lower court dismissed the claim, so Mt. Hood Polaris appealed to the 9th Circuit. The 9th reaffirmed that there must be some kind of damage to the plaintiff's reputation before a defamation claim may properly lie. As a matter of law, it is up to the judge to determine if damage could be possible by examining the speech itself, since loose hyperbolic language is not capable of a defamatory meaning.

In Unelko Corp. v. Rooney, 912 F.2d 1049, 1053 (9th Cir. 1990), we held that the threshold question after Milkovich in a defamation claim is “whether a reasonable factfinder could conclude that the contested statement implies an assertion of objective fact.” If the answer is no, the claim is foreclosed by the First Amendment. (Op. at 4834)

The 9th then analyzed the talk show itself:

The Tom Martino Show is a radio talk show program that contains many of the elements that would reduce the audience’s expectation of learning an objective fact: drama, hyperbolic language, an opinionated and arrogant host, and heated controversy. (Op. at 4836)

As a result, even if the statements made were capable of a defamatory meaning in a vacuum, the proper analysis is to look at the context in which they are made - and then determine if a reasonable reader would interpret them as statements of fact. In this case, the court held that a reasonable listener would not -- therefore, no defamation.

Over at Simple Justice, Greenfield connects the dots between the absurd Cyber Civil Rights "Symposium" and the 9th Circuit's ruling in Gardner v. Martino.


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