iTricks reports on the dismissal of a lawsuit against Magic magazine and a reviewer as protected opinion. I looked over the reactions to the dismissal and they are really interesting and thoughtful. Here are some observations.
Brad Henderson, a reviewer for Magic Magazine, reviewed a trick by Bill Nagler. Mr. Nagler took exception, claiming that the review (which is reproduced in the opinion), wasn't glowing, and resulted in diminished sales of quite an amount. Apparently he asserted something like $100,000 in lost profits, and sued in federal court, because the parties were from different states and the amount in controversy was over $75,000. Either one of these issues allows filing in federal court under the Federal Rules of Civil Procedure. Another reason for filing in federal court would be that there is a federal constitutional issue involved: here it would be, for example, a First Amendment right--Mr. Henderson's right of free speech. Had Mr. Nagler originally filed in state court, Mr. Henderson and his co-defendant could have removed to federal court. (Note that some state constitutions offer greater protections of certain fundamental rights than does the federal constitutions, but that's an issue for another day).
Mr. Nagler's claims are rooted in tort law (which is state law): defamation and product disparagement--defamation of his product. Understandably, people get upset about negative reviews, and sometimes they sue over them. We've recently seen restaurant owners try to sue over negative restaurant reviews, for example. What usually happens in such cases is that the critic will agree to re-review.
Mary Johns, one of the excellent librarians here, got me a copy of the opinion via PACER. The Court noted that the plaintiff, Mr. Nagler, alleged two causes of action, defamation and product disparagement, against Mr. Henderson, and the publisher of Magic Magazine. Mr. Nagler apparently thought that Mr. Henderson "bought in" to the notion that Mr. Nagler was guilty of exposing the secrets behind other magicians' tricks and thus wrote a negative review. He accused Mr. Henderson of making false statements of fact concerning the magic trick under review. Mr. Henderson and Magic Magazine defended by saying that the statements were protected opinion, and also that they did not "concern" Mr. Nagler. Under the law, in order to make out a prima facie case of defamation, the plaintiff must show that the statements complained of are 1) of and concerning him 2) are defamatory and 3) are published (that is, that they have been communicated to a third party). To be defamatory, a statement must also be a false statement of fact. The defendants maintained that in this case the statements were not about Mr. Nagler, thus that Mr. Nagler failed to make out at least one of the required elements.
The Court examined the statements to which Mr. Nagler objected and said that they were either "rhetorical hyberbole" or unverifiable "supported interpretation." For example, statement one reads: "You are dealing with a pack of cards that cannot be handled..." This statement, said the Court is "rhetorical hyperbole." This statement is an exaggeration. Statement three reads, "Also, in most accounts of the Berglas Effect, there is no extended procedure for the selection of the card and the number. Here again Nagler's handling falls short." This statement falls into the category of unverifiable "supported interpretation." Mr. Henderson gives the reader his reasons for making the statement.
Why does this matter? Even if a statement were defamatory, and of and concerning the plaintiff, and published, the statement might not be actionable. Defendants have at their disposal a number of privileges and defenses. As long as Mr. Henderson gives his reasons for evaluating Mr. Nagler's trick as he does, his review is protected. This is the rule set down in prior cases, most notably a case called Milkovich v. Lorain Journal. Opinion is protected when the person opining discloses the facts underlying the opinion, or directs the reader to the facts, so that the reader can make up her own mind. The writer cannot expect his reader simply to take the opinion on the writer's say-so. The writer also may not make statements of fact and try to disguise them as opinion by saying something like "I think" or "It's my opinion that...". A statement that is provable true or false, for example, is not an opinion. But a reviewer who gives the facts on which his opinion is based very likely has done enough to obtain protection for his opinion. In addition, readers are expected to realize that statements that are clearly exaggerations can't be taken literally, for example. This is another type of defense available to a defendant accused of defamation.
The judge in the case is sympathetic to Mr. Nagler's contention that Mr. Henderson's tone was perhaps less than charitable. But the tone does not amount to "actual malice", at least as it is understood in constitutional law. In order to show such malice, a plaintiff would have to show that a defendant knew or had reason to know that what he was writing was false, and falsity can be demonstrated only with an appeal to facts. With regard to the product disparagement claim, the plaintiff has to make out the same elements, and since he cannot make out the elements with regard to the defamation claim, he's unlikely to be able to make out the elements with regard to the product disparagement claim--again, product disparagement is the defamation of a product.
Some commentators on the Genii forum wondered why Mr. Nagler sued, why the lawsuit went this far, and whether this was a frivolous suit. Well, he was understandably upset. Further, people can and do file suit for just about anything. They don't even need an attorney to take the case. They can take on the case themselves, as we've seen recently. But this case wasn't meritless, in my opinion. In this particular case, Mr. Nagler thought that a connection existed between the bad review and low sales, and he sought to demonstrate it. Such things do happen. In a famous case called Redgrave v. Boston Symphony, the actress Vanessa Redgrave tried to demonstrate that the Boston Symphony breached a valid contract with her because of her exercise of her free speech rights, and that that breach led to diminished work opportunities. The Symphony had a different view of the situation. Afraid that concert goers would be put off by Ms. Redgrave's obvious support of the PLO, it decided that cutting ties with her might be wise, and it decided to cancel the performances in which she was scheduled to perform. It framed the issue quite differently.
Framing the issue, describing the issue, telling the persuasive story, is quite important, for lawyers, and for magicians, as we know. In fact, it can be crucial. But lawyers can only work with what their clients give them. So, when writing a review, the critic must make certain she includes enough fact to support her opinion, and make certain that the rest falls under a defense--something like "rhetorical hyperbole." We do want reviewers to give us their honest opinions. We just want them to disclose the facts upon which those opinions are based. It's not just the law. It's common sense. The judge's opinion in the Nagler case reaffirms that principle.
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