USCA1 Opinion
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No. 97-1329
LEVINSKY'S, INC.,
Plaintiff, Appellee,
v.
WAL-MART STORES, INC.,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
_________________________
Before
Selya and Lynch, Circuit Judges,
and Pollak,* Senior District Judge.
_________________________
Jonathan S. Piper, with whom Charles J. Glasser, Jr., Preti,
Flaherty, Beliveau & Pachios, Peter J. DeTroy, Russell B. Pierce,
Jr., and Norman, Hanson & DeTroy were on brief, for appellant.
Karen Frink Wolf , with whom Harold J. Friedman and Friedman &
Babcock were on brief, for appellee.
_________________________
September 26, 1997
_________________________
_______________
*Of the Eastern District of Pennsylvania, sitting by designation.
SELYA, Circuit Judge . Our enduring national devotion to
freedom of expression, embodied in the First Amendment and renewed
in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), inevitably
means that much offensive and inaccurate speech will remain free
from legal constraints. Still, there are boundaries past which
speakers cannot trespass. This case illustrates how difficult it
is to trace those boundaries with the precision that the law
demands.
I. STORE WARS
The events that gave rise to this litigation are
controversial but, for the most part, not controverted. We present
a balanced synopsis here.
The plaintiff, Levinsky's, Inc. (Levinsky's), is a
family-owned business that operates three retail clothing stores in
Maine. It has deep roots in the community. The defendant, Wal-
Mart Stores, Inc. (Wal-Mart), is the nation's largest retailer. It
is a relative newcomer to the Maine marketplace. The two compete
head to head in the Portland area.
In the fall of 1994, Levinsky's decided to run a tongue-
in-cheek radio advertisement that forged a comparison between it
and Wal-Mart. A snippet from the ad reflects its tone:
"Levinsky's has a great selection and the lowest prices in Maine on
Levi's jeans, Dockers and denim shirts. Wal-Mart doesn't carry
Levi's, but we did get a good buy on a toaster." The spot aired in
the Portland area for about six weeks during the pre-Christmas
shopping season.
2
Intrigued by the unorthodox advertising campaign, Michael
Boardman, a free-lance writer for the Portland business magazine
Biz, decided to write a "David versus Goliath" story about
Levinsky's aggressive reaction to Wal-Mart's entry into the
marketplace. The article appeared in Biz's January/February 1995
issue under the headline "Levinsky's: Leaner and meaner with
retail competition." In the text, Boardman compared Levinsky's to
a "feisty kid who fights the school bully for his lunch money."
While researching the story, Boardman telephoned Gilbert
Olson, the manager of Wal-Mart's store in Scarborough, Maine (a
Portland suburb). Olson testified that he thought Boardman was a
college student researching a paper, but Boardman maintained that
he clearly identified himself as a journalist and stated the
purpose of his call. At any rate, Olson made two statements during
his conversation with Boardman that lie at the epicenter of this
appeal. First, he described a Levinsky's store as "trashy."
Second, he stated that when a person called Levinsky's, "you are
sometimes put on hold for 20 minutes _ or the phone is never picked
up at all." Biz printed these (and other) remarks, attributing
them to Wal-Mart.
Shortly thereafter, Levinsky's and several family members
sued Wal-Mart for defamation, injurious falsehood, false light,
deceptive trade practices, interference with advantageous economic
relations, and infliction of emotional distress. Their complaint,
filed in the federal district court under diversity jurisdiction,
28 U.S.C. S 1332(a) (1994), sought $40,000,000 in compensatory and
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presumed damages, plus punitive damages equal to 2% of Wal-Mart's
net worth. Most of these claims were weeded out before or during
trial. The defamation claims survived. The jury found that the
individual family members had not been defamed, but awarded
Levinsky's $600,000 for presumed damages to reputation
(notwithstanding the lack of any specific evidence of actual
pecuniary loss). The jury also determined that Olson had not acted
with ill will and declined to award Levinsky's exemplary damages.
The district judge upheld the verdict and made several
rulings that bear on this appeal. First, the judge found that the
verdict did not offend the First Amendment because both the word
"trashy" and the "20 minutes on hold" comments stated opinions that
implied provably false facts. Second, because Olson's statements
related to Levinsky's business, the judge concluded that presumed
damages were available. Third, emphasizing Olson's subjective
belief that he was not speaking to a reporter but to a university
student, the judge determined that Olson's comments did not relate
to a matter of public concern, and that, therefore, Levinsky's did
not need to show actual malice as a precondition to the award of
presumed damages. Fourth, the judge ruled that, under Maine's
defamation per se doctrine, a finding of defamation that related to
the plaintiff's business established legally sufficient fault and
Among other things, the district court ruled that other
statements which Olson had uttered were not actionable and
pretermitted various causes of action. These matters are not
within the compass of this appeal and we make no further mention of
them.
4
thus obviated any need for a jury instruction on negligence.
II. A SHOPPING LIST
This appeal offers a large inventory of interleaved legal
issues. We pick our way through that inventory by traversing the
intersection of the First Amendment and state defamation law as it
has developed over time, noting, inter alia, a restriction on the
scope of defamation imposed by Maine law. We next discuss one of
the two allegedly defamatory statements _ the "trashy" reference _
and conclude, as a matter of federal constitutional law, that it
cannot support a recovery. We then address the second statement _
"20 minutes on hold" _ and conclude that it is actionable. We move
at that point to the matter of public concern (but do not resolve
it). Finally, because a new trial is required, we offer some
guidance to the district court in connection with the role of
negligence in Maine defamation cases.
III. STAPLES: THE FIRST AMENDMENT AND STATE DEFAMATION LAW
For many years, states enacted statutes and applied
common law tort principles in the area of defamation with no more
than a passing nod to the First Amendment's free speech guaranty.
This era of constitutional non-interference ended when the Justices
proclaimed "a profound national commitment to the principle that
debate on public issues should be uninhibited, robust, and wide-
open, and that it may well include vehement, caustic, and sometimes
unpleasantly sharp attacks on government and public officials."
New York Times , 376 U.S. at 270. Faithful to this ideal, the Court
announced that the First Amendment precludes recovery by a public
5
official under state defamation law unless the official shows that
the speaker acted with actual malice, that is, with knowledge of or
reckless disregard for the falsity of the statement. See id. at
279-80.
The seeds sown in New York Times have blossomed over the
years, giving rise to a crop of checks on the sweep of state
defamation law. We harvest four points.
A. Independent Appellate Review.
First, the deference traditionally shown by courts toward
factfinders' determinations is muted when defamation issues
implicate free speech concerns. In such circumstances, appellate
judges must conduct a whole-record review and "examine for
[them]selves 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" protect. Id. at 285
(citation and internal quotation marks omitted). This requirement
of independent appellate review is not a procedural directive, but,
rather, "a rule of federal constitutional law" that "reflects a
deeply held conviction that judges . . . must exercise such review
in order to preserve the precious liberties established and
ordained by the Constitution." Bose Corp. v. Consumers Union of
United States, Inc. , 466 U.S. 485, 510-11 (1984). Indeed, when the
imperative of independent review conflicts with a standard
procedural dictate (such as Fed. R. Civ. P. 52(a)), the
constitutional mandate controls. See id. at 514.
As a practical matter, this requirement means that
6
federal courts engage in de novo review when mulling defamation
issues that are tinged with constitutional implications. See,
e.g., id. at 511, 514; Connick v. Myers, 461 U.S. 138, 147-48 & n.7
(1983); Phantom Touring, Inc. v. Affiliated Publications , 953 F.2d
724, 727 (1st Cir. 1992); Kassel v. Gannett Co. , 875 F.2d 935, 937
(1st Cir. 1989). Maine courts follow the same course. See Rippett
v. Bemis, 672 A.2d 82, 86 (Me. 1996); Caron v. Bangor Publ'g Co.,
470 A.2d 782, 784 (Me. 1984).
B. Opinions May Be Actionable.
The First Amendment does not inoculate all opinions
against the ravages of defamation suits. A statement couched as an
opinion that presents or implies the existence of facts which are
capable of being proven true or false can be actionable. See
Milkovich v. Lorain Journal Co. , 497 U.S. 1, 18-19 (1990); see also
Restatement (Second) of Torts S 566 (1977) ("A defamatory
communication may consist of a statement in the form of an opinion,
but a statement of this nature is actionable only if it implies the
allegation of undisclosed defamatory facts as the basis for the
opinion."). Thus, a statement normally is not actionable unless
it contains an objectively verifiable assertion. Chief Judge
Restatement S 566 seemingly applies the Milkovich standard to
defamation actions regardless of whether the challenged statements
address issues of public or private concern. This formulation
accurately reflects Maine's defamation law. See, e.g., Staples v.
Bangor Hydro-Elec. Co. , 629 A.2d 601, 603 (Me. 1993); Lightfoot v.
Matthews, 587 A.2d 462, 462 (Me. 1991).
The Milkovich Court explained: "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," and the
7
Posner has captured the distinction between statements that are
actionable and those that are not:
A statement of fact is not shielded from an
action for defamation by being prefaced with
the words `in my opinion,' but if 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.
Haynes v. Alfred A. Knopf, Inc. , 8 F.3d 1222, 1227 (7th Cir. 1993).
The Milkovich Court was careful not to discard the baby
with the bath water: while leaving some statements of opinion
exposed, the Court reaffirmed the protection long afforded to
"imaginative expression" and "rhetorical hyperbole." 497 U.S. at
17, 20. Thus, the First Amendment prohibits defamation actions
based on loose, figurative language that no reasonable person would
believe presented facts. See, e.g., Letter Carriers v. Austin, 418
U.S. 264, 284-86 (1974) (holding that use of the word "traitor" to
define a worker who crossed a picket line was not actionable);
Greenbelt Coop. Publ'g Ass'n v. Bresler, 398 U.S. 6, 13-14 (1970)
(holding that a newspaper's characterization of a developer's
negotiating position as "blackmail" was not defamatory; the word
was simply an epithet and, under the circumstances, did not suggest
commission of a crime); Phantom Touring, 953 F.2d at 728 (calling
a play "a rip-off, a fraud, a scandal, a snake-oil job" was mere
comment can be actionable. 497 U.S. at 18. By contrast, if the
speaker says, "In my opinion Mayor Jones shows his abysmal
ignorance by accepting the teachings of Marx and Lenin," the First
Amendment bars recovery because the statement cannot be objectively
verified. Id. at 20.
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hyperbole and, thus, constitutionally protected).
The First Amendment's shielding of figurative language
reflects the reality that exaggeration and non-literal commentary
have become an integral part of social discourse. For better or
worse, our society has long since passed the stage at which the use
of the word "bastard" would occasion an investigation into the
target's lineage or the cry "you pig" would prompt a probe for a
porcine pedigree. Hyperbole is very much the coin of the modern
realm. In extending full constitutional protection to this
category of speech, the Milkovich Court recognized the need to
segregate casually used words, no matter how tastelessly couched,
from fact-based accusations.
C. Actual Malice Sometimes Must Be Shown.
The Supreme Court has ruled that the First Amendment not
only restricts the types of actionable statements, but also limits
the kinds of recoverable damages. Of particular relevance here is
the Court's holding that a private individual who seeks damages for
a defamatory statement involving a matter of public concern cannot
recover presumed or punitive damages absent a showing of actual
malice. See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,
472 U.S. 749, 751, 756-57 (1985); Gertz v. Robert Welch, Inc. , 418
U.S. 323, 349 (1974). Determining whether an allegedly defamatory
statement involves a matter of public concern requires a court to
assess the statement's "content, form and context . . . as revealed
by the whole record." Dun & Bradstreet, 472 U.S. at 761 (quoting
Connick, 461 U.S. at 147-48). Withal, locating particular
9
statements along the public/private continuum is sometimes a
surpassingly difficult task.
D. Fault Always Must Be Shown.
The fourth principle that must be understood before we
embark on our odyssey through the record is a restriction on
defamation that Maine's jurisprudence hallows, though its
constitutional credentials remain inscrutable. Simply put, Maine
defamation law does not recognize liability without fault; rather,
as a predicate to recovery, Maine requires a defamation plaintiff
to show that the defendant acted at least negligently. See Lester
v. Powers, 596 A.2d 65, 69 (Me. 1991).
IV. THE NATURE OF THE STATEMENTS
The two statements that the district court permitted the
jury to consider are not in legal equipoise. Hence, we discuss
them separately.
A. Talking Trash.
The district court ruled that the adjective "trashy"
stated an opinion that implied a provably false fact and was,
therefore, actionable. This ruling rested on the court's expressed
view that the term had a single, readily ascertainable meaning _
It is unclear whether the First Amendment prohibits a state
from imposing strict liability in a defamation case brought by a
private plaintiff concerning statements that implicate a matter of
private concern. See Snead v. Redland Aggregates, Ltd., 998 F.2d
1325, 1334 (5th Cir. 1993) (discussing the question and concluding
that the First Amendment "imposes no minimum standard of fault in
private/private libel cases"). Because Maine has articulated a
minimum negligence standard for all defamation actions, we need not
ponder the constitutional issue here.
10
"dirty or unkempt" _ and that, in Judge Carter's words, Olson's
statement could be "verified or disproved through straightforward
inquiry into the condition of [Levinsky's] store's physical
appearance." We do not agree.
Despite avowals that all speech is infinitely malleable,
see, e.g., Lewis Carroll, Through the Looking Glass, ch. 6 (1872)
(reporting Humpty Dumpty's declaration: "When I use a word, it
means just what I choose it to mean _ neither more nor less."), the
First Amendment does not allow courts the luxury of a
deconstructionist approach to language. Some words or phrases
evoke a multiplicity of meanings; others do not. Under the aegis
of the First Amendment, a particular word or phrase ordinarily
cannot be defamatory unless in a given context it reasonably can be
understood as having an easily ascertainable and objectively
verifiable meaning. The vaguer a term, or the more meanings it
reasonably can convey, the less likely it is to be actionable.
See, e.g., Phantom Touring , 953 F.2d at 728 (holding that newspaper
articles that referred to the plaintiff's production of "The
Phantom of the Opera" as "fake" and "phony" were not actionable
because the descriptions were "unprovable," inasmuch as "those
adjectives admit of numerous interpretations"); McCabe v. Rattiner,
814 F.2d 839, 842-43 (1st Cir. 1987) (holding that a newspaper
headline which referred to the plaintiff's real estate development
as a "scam" was not actionable because the word means different
things to different people and "[t]he lack of precision makes the
assertion `X is a scam' incapable of being proven true of false").
11
It is against this mise-en-scene that we must explore the
meaning of the word "trashy." We start, as we often do in
searching out the meaning of a word, with the dictionary.
Lexicographic sources do not reflect any specific meaning of the
word. See, e.g., Webster's Third New International Dictionary 2432
(1986) (defining "trashy" as "resembling or containing trash: of
inferior quality: worthless . . . covered or strewn with dried or
withered vegetable matter"); 20 Oxford English Dictionary 440 (2d
ed. 1989) (defining "trashy" as "[o]f the nature of trash;
rubbishy; worthless . . . . [e]ncumbered with trash, that is, with
the withered growth of the previous season"); The American Heritage
Dictionary of the English Language 1904 (3d ed. 1992) (defining
"trashy" as "[r]esembling or containing trash; cheap or worthless
. . . [i]n very poor taste or of very poor quality").
Going beyond the lexicon, an impromptu survey of the case
law confirms that the word has been used to convey many different
meanings. See, e.g., Giano v. Senkowski, 54 F.3d 1050, 1058 (2d
Cir. 1995) (Calabresi, J., dissenting) (describing erotic magazines
as "trashy"); Johnson v. City of Pleasanton , 781 F. Supp. 632, 638
(N.D. Cal. 1991) (using the word to denote inferior physical
appearance; commenting that satellite antennas make a building look
"trashy"), aff'd in part, 982 F.2d 350 (9th Cir. 1992); Christy v.
Servitto, 699 F. Supp. 618, 625 (E.D. Mich. 1988) (quoting
attorney's description of a presumably disreputable woman as
"flashy trashy"), aff'd, 932 F.2d 502 (6th Cir. 1991).
Literary sources also illustrate the variations in
12
meaning associated with the word "trashy." For example, Jeremiah
Dyke employed the term's "inferior quality" meaning when he spoke
of "[s]uch solvenly meat, such trashy meat, such bitter meat."
Jeremiah Dyke, Divers Select Sermons (1640). An English author
preferred its "prurient interest" connotation when she complained
of reading "the trashiest heap of novels." Jane Welsh Carlyle,
Letters and Memorials (1883). Edmund Wilson found the "lacking
worth" meaning useful when he described Rudyard Kipling's Stalky &
Company as "crude in writing [and] trashy in feeling." Edmund
Wilson, The Wound and the Bow 114 (1941). Louis Bromfield showed
a more traditionalist bent, favoring the classic "covered with
withered growth" meaning of the word when he wrote of a seedbed
that "was rough and trashy." Louis Bromfield, Pleasant Valley 174
(1945). While these four illustrations merely scratch the surface,
they amply demonstrate the term's definitional flexibility.
The usages paraded through the courtroom by Levinsky's
able counsel reinforce this point. Particularly revelatory are his
opening and closing statements, in which he seemed frankly to
acknowledge the word's many connotations. At various times,
counsel suggested to the jury that Olson's statement referred to
the manner in which the plaintiff maintained its stores (in this
context meaning "filthy" and "dirty"), to the merchandise that the
plaintiff purveyed (in this context meaning "inferior" and
"crappy"), and to the character of the persons associated with the
13
enterprise (in this context meaning "sleazy" and "untrustworthy").
This broadcast acknowledgement that the word "trashy" possesses a
multitude of fairly ascribable meanings is in itself telling.
In this instance, moreover, the inherent elusiveness of
"trashy" is not pinned down by context. Indeed, the imprecision of
the word is accentuated by the testimony of the journalist,
Boardman, who, when asked his understanding of "trashy" as Olson
had voiced it, responded, "It's always been hard for me to define
exactly what he was referring to." In the same vein, Boardman
reported that Olson's only amplification of the remark was that
"customers should pay a little more money to buy the same item they
want somewhere else." Like "trashy" itself, this comment presents
a moving target.
The polysemous nature of the word "trashy" dooms
Levinsky's effort to recover for Olson's use of it. The word
"trashy" is a chameleon that continuously changes colors and shades
of meaning. It admits of numerous interpretations. We can imagine
no objective evidence that might conclusively prove or disprove it.
Like the equally pejorative terms used in Phantom Touring ("fake,"
"phony," "rip-off"), McCabe ("scam"), and Dilworth v. Dudley, 75
These iterations, including the adjectives quoted in the
parenthetical inserts, appear at pages 22-23 (opening statement)
and 273-274 (closing statement) of the trial transcript.
Following the district court's lead, Levinsky's counsel now
seeks to define "trashy" solely with reference to lack of
cleanliness. We give this tergiversation short shrift. Those who
sue for defamation are not at liberty to pick and choose among a
word's various possible definitions and saddle the speaker with the
consequences.
14
F.3d 307, 310-11 (7th Cir. 1996) (allowing no defamation remedy
when one scholar calls another a "crank"), "trashy" is
quintessentially subjective.
To say more about this point would be supererogatory.
Branding a store, its merchandise, its customers, or its
proprietors as "trashy" is uncomplimentary, and it may be
unwarranted; in the last analysis, however, such a comment is loose
language that cannot be objectively verified. Consequently, it
belongs squarely in the category of protected opinion. It follows
inexorably that Levinsky's reliance on this unflattering adjective
to underpin a defamation claim offends the First Amendment. See
Milkovich, 497 U.S. at 20-21; Washington v. Smith, 80 F.3d 555,
556-57 (D.C. Cir. 1996); Phantom Touring , 953 F.2d at 728; McCabe,
814 F.2d at 842-43; see also Fudge v. Penthouse Int'l, Ltd., 840
F.2d 1012, 1016 (1st Cir. 1988).
B. On Hold.
The district court likewise ruled that Olson's second
statement (when calling Levinsky's, "you are sometimes put on hold
for 20 minutes _ or the phone is never picked up at all")
encompassed matters of fact (or opinions that implied provably
false facts) and was, therefore, actionable. Wal-Mart takes
exception to this ruling. Its principal argument is that
constitutional shelter for this statement can be found in the First
Amendment protections typically afforded figurative language and
15
hyperbole. We think not.
Certain excesses of language cannot ground a defamation
claim because, in context, those excesses involve only puffery or
epithets, and thus are insufficiently fact-based. See, e.g.,
Austin, 418 U.S. at 284-86 ("traitor"); Bresler, 398 U.S. at 13-14
("blackmail"). These turns of phrase are recognized rhetorical
devices; they are not actionable because they are commonly
understood, in context, as imaginative expressions rather than
statements of fact.
Paddling furiously to reach this safe harbor, the
appellant urges us to interpret Olson's comment as an obvious
exaggeration, tantamount to the statement "you are sometimes put on
hold forever." No reasonable listener, the appellant asseverates,
would consider this variant an assertion of literal truth. But the
appellant's argument requires a leap of faith that we are unwilling
to essay. The First Amendment does not allow courts to distort the
reality of events under the guise of protecting freedom of
expression. Thus, a reviewing court must evaluate a speaker's
statement as it was given and must resist the temptation to replace
what was actually said with some more innocuous alternative.
The determination of whether a statement is hyperbole
Wal-Mart's other arguments on this point can be dismissed out
of hand. In this wise, we note that the record contains no
evidence from which a jury supportably could find that this comment
was literally true. At trial, Olson testified that on three
separate occasions he had called Levinsky's and had been put on
hold for a total of 20 minutes or more (but no longer than 10
minutes on any one occasion). The appellant adduced no other
evidence suggesting that Olson's statement was accurate.
16
depends primarily upon whether a reasonable person could interpret
the statement to provide actual facts about the individual or
institution it describes. See Milkovich, 497 U.S. at 20; cf.
Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50 (1988)
(precluding recovery on the ground that an advertising parody,
which claimed that a minister had lost his virginity in a drunken
rendezvous with his mother, was incredible). Under this criterion,
the "20 minutes" statement seems sufficiently factual to be proved
true or false. For one thing, Olson's use of a specific time frame
cuts against treating his remark as hyperbole or other non-factual
speech. For another thing, the assertion can be verified or
rebutted by objective evidence of how Levinsky's staff handled
telephone calls (evidence of the type that, in fact, Levinsky's
adduced and the jury heard). In addition, the statement is not
inherently implausible. Especially given the pervasive folklore
concerning the difficulties that consumers encounter in dealing
with merchants telephonically, we believe that a reasonable
listener could interpret the "20 minutes" comment as a statement of
fact about Levinsky's business practices.
As the appellant correctly notes, we cannot take the "20
minutes" remark in isolation. Seizing this potential lifeline,
Wal-Mart struggles to persuade us that the second part of Olson's
statement _ "the phone is never picked up at all" _ colors the
context and makes it plain that he was speaking figuratively.
Though context is an important aspect of the Milkovich inquiry, see
Phantom Touring, 953 F.2d at 727; McCabe, 814 F.2d at 842-43, it
17
does not aid the appellant here. While the second portion of
Olson's statement does not incorporate a fixed temporal interval,
that remark, when read in tandem with the first portion of the
statement, does not defuse the defamatory potential. A reasonable
listener could well conclude that Levinsky's service was so bad
that the company not only left customers dangling on the line for
20 minutes at a crack, but also, on some occasions, simply did not
bother to answer the telephone.
In fine, the overall context does little to dispel the
impression that Olson's comment stated facts about Levinsky's
business practices. After all, Levinsky's and Wal-Mart were locked
in hand-to-hand combat for shoppers' dollars, and Olson held an
executive position with Wal-Mart. While a reasonable listener
might be skeptical given Olson's likely motive (to try to lure
potential customers to his store), he gave his assertion a
particularized factual component. A listener reasonably could
conclude that Olson intended to describe from personal knowledge
how Levinsky's treated callers.
The short of it is that neither the type of language
employed nor the overall tenor of the article negated the
reasonable impression that Olson steadfastly maintained that
Levinsky's telephone practices were in fact as he described them to
Olson did not furnish Boardman, and Boardman did not print,
any factual predicate for the assertions. This distinguishes them
from certain comments discussed in Phantom Touring, 953 F.2d at
729, where context made it unmistakably clear that the challenged
speech, though superficially capable of being proved true or false,
represented only a point of view.
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be. On this basis, the "20 minutes" statement properly could be
treated as fact-based defamation. So viewed, the statement does
not fit within the contours of protected speech, and it was, as the
lower court concluded, amenable to suit under the Milkovich regime.
V. PUBLIC CONCERN
Even though the "20 minutes" statement is actionable, the
appellant has another defense in stock. The jury awarded only
presumed damages, and the Constitution forbids an award of presumed
or punitive damages for words spoken without actual malice on
matters of public concern. See Dun & Bradstreet , 472 U.S. at 756.
Wal-Mart contends that this is such a case.
The Supreme Court has roughly bisected the sphere of
social commentary between matters of public concern, which are
those that can be "fairly considered as relating to any matter of
political, social, or other concern to the community," and matters
of private concern, which are those that address "matters only of
personal interest." Connick, 461 U.S. at 146-47. A court must
determine whether a statement comes within the public concern
hemisphere of this formulation by reference to its "content, form
and context." Dun & Bradstreet, 472 U.S. at 761. In order to do
so, the relevant community need not be very large and the relevant
concern need not be of paramount importance or national scope.
Levinsky's assertion that Wal-Mart waived the right to raise
the public concern issue is meritless. The opinions of the
magistrate judge and the district judge in this case show beyond
any peradventure of doubt that Wal-Mart consistently pressed the
public concern argument in the proceedings below, and the trial
transcript confirms that fact.
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Rather, "it is sufficient that the speech concern matters in which
even a relatively small segment of the general public might be
interested." Roe v. City of San Francisco , 109 F.3d 578, 585 (9th
Cir. 1997).
When called upon to perform a public concern analysis,
courts have found the Connick line of cases, i.e., judicial
decisions involving public employees fired for making comments that
arguably relate to matters of public concern, to be instructive.
The Supreme Court has approved this analogy, see Dun & Bradstreet ,
472 U.S. at 759, and we encourage its use. Still, jurists and
lawyers alike should employ it with a caveat in mind. Public
employee cases typically involve speech on matters relating to
public sector jobs, and criticism of the workings of government is
at the core of conduct protected by the First Amendment. See New
York Times, 376 U.S. at 282-83, 292. Statements that implicate
issues outside the public sector may require more rigorous
analysis.
In this case, the appellant argues that the "20 minutes"
statement related to a matter of public concern because Biz
published it in an article describing the "David versus Goliath"
battle between Wal-Mart and a local, family-owned business. To
bolster this argument, Wal-Mart points out that Boardman decided to
write the piece because this type of business struggle had sparked
intense interest across the country and because Levinsky's radio
advertisements had called attention to a local microcosm of this
struggle. Levinsky's counters by characterizing the comments as
20
statements made in the course of a dispute between two private
businesses. The mere fact that the competition between the two
merchants interested a journalist, Levinsky's posits, does not make
the matter one of public concern.
The district court decided this issue in Levinsky's
favor, but based its decision entirely on Olson's testimony that he
thought he was engaged in a private conversation with a college
student. This prop is very shaky. Passing the probability that
the prop is constructed from less than sturdy factual material _
Olson's query to Boardman ("You're not going to use my name, are
you?") suggests that at some point he did realize that Boardman
would convey his comments to a wider audience _ we do not think
that a speaker's subjective belief as to who will hear his
statements should be the sole determinant of the constitutional
question.
To be sure, we have recognized that in some circumstances
a private statement might not qualify "on the basis of its content
alone, as a matter of inherent public concern," and that a court
therefore may consider the speaker's "subjective intent to
contribute to any . . . public discourse." O'Connor v. Steeves,
994 F.2d 905, 914 (1st Cir. 1993). Yet the Supreme Court has made
it pellucid that the First Amendment protects comments privately
expressed, see Givhan v. Western Line Consol. Sch. Dist. , 439 U.S.
410, 415-16 (1979), and that private statements can touch on
matters of public concern, see Rankin v. McPherson, 483 U.S. 378,
386 & n.11 (1987). It is thus apparent that the speaker's intent
21
is only one of a constellation of relevant factors implicated by a
whole-record review of the speech's form, content, and context.
See Connick, 461 U.S. at 147-48; O'Connor, 994 F.2d at 914 & n.5.
The primary focus of the relevant constitutional inquiry must
remain on the speech's content and the public's perception of the
topic, not on the speaker's subjective belief as to the
conversation's confidentiality.
We are confronted, then, with a situation in which the
lower court's resolution of the public concern issue is undermined
by its incomplete assessment of the form, content, and context of
Olson's statements. That sort of disconnect is invariably a
problem for an appellate court. Here, however, the problem is
exacerbated in two ways.
First, if we proceed on the record as it stands, we will
be compelled to resolve an unsettled question as to what sources an
appellate court may consult in attempting to ascertain whether a
statement relates to a matter of public concern. Of course,
certain things are clear. We know, for example, that Levinsky's
decision to sue Wal-Mart does not retroactively confer public
concern status on Olson's statements. To the contrary, media
coverage of the lawsuit itself is irrelevant on this issue. See
Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 591
(1st Cir. 1980); cf. Hutchinson v. Proxmire, 443 U.S. 111, 135
(1979) ("[T]hose charged with defamation cannot, by their own
conduct, create their own defense by making the claimant a public
figure."). We know, too, that Levinsky's radio advertisements,
22
Boardman's interest in the issue, and the Biz article, all of which
are of record here, constitute relevant evidence that may help to
determine public versus private concern by clarifying the context
in which Olson spoke. See Rankin, 483 U.S. at 381-86 (examining
contextual evidence to determine whether a challenged statement
dealt with a matter of public concern). But the record contains
little else that bears on the public concern issue.
Equally as vexing, the appellant has asked us to take
notice of a substantial body of information _ newspaper and
magazine articles, excerpts from congressional hearings, and the
like _ that could have been, but was not, presented below. It is
uncertain whether we may honor the appellant's request, see
Matthews v. Marsh, 755 F.2d 182, 183 (1st Cir. 1985); United States
v. Kobrosky, 711 F.2d 449, 456 (1st Cir. 1983); Rosen v. Lawson-
Hemphill, Inc., 549 F.2d 205, 206 (1st Cir. 1976), and, if so,
whether we should exercise that right.
The second complicating factor is that the public concern
issue is intertwined with the question of actual malice. See supra
Part III(C). Accordingly, even if the "20 minutes" statement
involved a matter of public concern, an award of presumed damages
would be constitutionally acceptable as long as the statement had
been made with actual malice. In itself, this interrelation
between public concern and actual malice is standard fare. Here,
however, the district court did not resolve the actual malice
question, either by submitting it to the jury or otherwise, because
23
it had ruled against Wal-Mart on the public concern issue.
These complications counsel in favor of judicial
restraint. Although we have the authority to resolve public
concern issues ab initio at the appellate level, see Connick, 461
U.S. at 147-48 & n.7, we choose not to exercise that authority in
this situation. We do not have the benefit of a reliable district
court decision on the public concern issue; the record is very
sparsely developed in regard to that issue; what evidence there is
does not suggest a clear answer to whether or not Olson spoke on a
matter of public concern; there is a substantial body of relevant
evidence that was never presented below; and the existence vel non
of actual malice remains problematic. Rather than groping for an
answer to the question under the combined weight of these
handicapping circumstances, we think that it would be fairest, all
around, to remand and give the parties (not to mention the district
court) a full opportunity to explore all aspects of this issue.
See Penobscot Indian Nation v. Key Bank , 112 F.3d 538, 561-62 (1st
Cir. 1997) (refusing to determine, as a matter of law, "public
figure" status in a defamation action when presented with
insufficient record evidence), petition for cert. filed, 66
U.S.L.W. 3130 (U.S. Aug. 4, 1997) (No. 97-219); cf. Icicle
Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986).
To be sure, the jury did find specially that Olson spoke
without common law malice (ill will or spite). Notwithstanding the
similarity in nomenclature, however, common law malice and actual
malice are not identical. See Masson v. New Yorker Magazine, Inc. ,
501 U.S. 496, 510-11 (1991) (discussing the distinction).
24
VI. NEGLIGENCE
Over Wal-Mart's objection, the court below submitted
multiple defamation claims ("trashy" and "20 minutes") to the jury,
which returned only a general verdict. That verdict may have been
based, in whole or in part, on the improvidently submitted
("trashy") claim. Where such a contretemps occurs and a reviewing
court cannot identify which of the two claims _ one proper and one
improper _ the jury relied upon to reach the general verdict, the
usual rule is that the verdict must be vacated. See Sunkist
Growers, Inc. v. Winckler & Smith Citrus Prods. Co., 370 U.S. 19,
30 (1962); Lattimore v. Polaroid Corp. , 99 F.3d 456, 468 (1st Cir.
1996). So it is here. Thus, we must remand for a new trial.
In other circumstances, this conclusion might end the
appellate task. Here, however, the negligence issue persists:
Wal-Mart assigns error to the district court's refusal to instruct
the jury that the plaintiff had to show some fault on the
defendant's part to recover, and this issue is likely to arise on
retrial. Consequently, we tackle it here.
Levinsky's tries to head off this inquiry altogether. It
asserts that any instructional error was a postmortem wound
inflicted after Wal-Mart had committed legal suicide both by
failing to contest Olson's negligence during the trial and by
admitting negligence in its closing argument. The nisi prius roll
does not verify this autopsy report.
The record clearly shows that Wal-Mart contested
negligence at all times. Throughout the trial, it endeavored to
25
demonstrate that Olson's comments were not culpable, but, rather,
were reasonably based on his personal observation of conditions at
Levinsky's stores. By the same token, Levinsky's charge that Wal-
Mart's trial counsel conceded negligence reads too much into too
little.
Specifically, Levinsky's points to the acknowledgement,
repeated twice in the course of Wal-Mart's summation, that Olson
"made a mistake." Certainly, an admission of counsel during trial
is binding on the client. See Oscanyan v. Arms Co. , 103 U.S. 261,
263-64 (1880). To qualify as an admission, though, counsel's
statement, when taken in context, must be clear and unambiguous.
See MacDonald v. General Motors Corp. , 110 F.3d 337, 340 (6th Cir.
1997); United States v. Insurance Co. of N. Am. , 83 F.3d 1507, 1511
n.6 (D.C. Cir. 1996); Schott Motorcycle Supply, Inc. v. American
Honda Motor Co., 976 F.2d 58, 61 (1st Cir. 1992).
Here, counsel's statement that Olson "made a mistake"
falls measurably short of this benchmark. In its most natural
iteration, the remark can be understood as referring to Olson's
breach of his company's media communications policy. Disregarding
company policy is risky _ but it may or may not be negligent. Few
would doubt that if Olson could go back in time and exercise his
option to stand mute in the face of Boardman's interrogation, he
would do so. Characterizing Olson's conduct as a mistake, then,
probably had little to do with the issue of negligence. In all
events, it strains credulity to label counsel's description of
Olson's actions as a clear, unambiguous admission that those
26
actions satisfied the legal standard of fault. Consequently, we
reach the merits of the jury instruction claim.
We review challenges to jury instructions with a focus on
whether the instructions "adequately illuminate the law applicable
to the controlling issues in the case without unduly complicating
matters or misleading the jury." United States v. DeStefano, 59
F.3d 1, 3 (1st Cir. 1995). An erroneous instruction requires a new
trial if the preserved error, based on a review of the entire
record, can fairly be said to have prejudiced the objecting party.
See United States v. Taylor, 54 F.3d 967, 976 (1st Cir. 1995).
In this instance, Wal-Mart requested a jury instruction
on negligence, but the trial judge denied the request and charged
the jury on the elements of defamation without mentioning fault.
Wal-Mart interposed a timely and legally sufficient objection. See
Fed. R. Civ. P. 51.
The trial judge made his position very clear. He
reasoned that the doctrine of defamation per se applied, and that,
because malice is implied in cases of defamation per se, a
negligence instruction would be pointless. We agree with the
court's premise but not with its conclusion.
As we explained earlier, see supra Part III(D), Maine law
does not recognize liability without fault in defamation cases.
Contrary to the district court's view, Maine's allegiance to the
doctrine of defamation per se does not alter this rule. That
doctrine is relevant to damages, not to liability. Under it,
claimants in certain defamation cases need not prove actual damages
27
as a prerequisite to recovery. See Rippett, 672 A.2d at 86
(applying the doctrine when the defendant's statement adversely
reflects on the plaintiff's business); Ramirez v. Rogers, 540 A.2d
475, 478 (Me. 1988) (applying the doctrine when the defendant's
statement implies a false charge of criminal conduct).
It is true, of course, that Maine's Supreme Judicial
Court has held that "malice is implied as a matter of law in
[defamation per se] cases." Saunders v. Van Pelt, 497 A.2d 1121,
1124-25 (Me. 1985). In one sense, that declaration might make it
seem that the doctrine relieves such a plaintiff of any burden to
show fault. But as this case proves, appearances are sometimes
deceiving.
Common law malice refers only to state of mind,
specifically, ill will or spite. See Masson v. New Yorker
Magazine, Inc. , 501 U.S. 496, 510-11 (1991); Lester, 596 A.2d at 70
n.8. The concept does not incorporate, and thus cannot subsume,
any fault standard. This is in sharp contradistinction to actual
malice, as that term is defined in the vocabulary of the First
Amendment. Actual malice does incorporate a fault standard _
"knowledge that [a statement] was false or . . . reckless disregard
[as to] whether it was false or not." Masson, 501 U.S. at 510
(quoting New York Times, 376 U.S. at 279-80). Maine's defamation
per se doctrine contemplates the common law, rather than the
constitutional, brand of malice. See Michaud v. Inhabitants of
Livermore Falls , 381 A.2d 1110, 1113 (Me. 1978). Hence, it is not
a proxy for the showing of fault that state defamation law
28
unambiguously requires.
A recent deployment of the defamation per se doctrine by
Maine's highest court dispels any doubt on this score. In Rippett,
the trial court granted summary judgment against a plaintiff who
claimed defamation per se because the police had made statements
that falsely charged her with criminal activity. 672 A.2d at 84-
86. The Maine Supreme Judicial Court reversed, holding that the
plaintiff had adduced sufficient evidence that the defendants had
made defamatory statements "on the basis of an investigation so flawed
as to constitute at least negligence." Id. at 86. This holding
effectively reaffirmed Maine's requirement that a negligence element
must exist in all defamation cases; if defamation per se obviated the
need to show fault, the Rippett court's discussion of negligence would
have been superfluous.
Accordingly, the court below erred in failing to instruct the
jury on Maine's negligence requirement in defamation actions. At a
subsequent trial, the district court should tender such an instruction.
VI. CONCLUSION
We need go no further. Common sense suggests (and the record
shows) that Olson's comments were intemperate. Still, the statement
that something (a Levinsky's store, or its contents, or its owner) was
"trashy" cannot be objectively verified and thus is not actionable in a
defamation suit. That error poisons the general verdict, even though
Olson's other statement _ "20 minutes on hold" _ is fit for jury
consumption. Consequently, the general verdict must be set aside and
the case remanded for a new trial, subject, however, to whatever
29
resolution the lower court may make in regard to whether Olson's
comments implicated a matter of public concern, and if so, whether the
evidence is sufficient to show actual malice. If a new trial
transpires, the jury should be instructed, inter alia, on the element of
negligence under Maine defamation law.
Reversed and remanded.
30