Levinsky's, Inc. v. Wal-Mart Stores, Inc.

No. 97-1329

LEVINSKY'S, INC.,

Plaintiff, Appellee,

v.

WAL-MART STORES, INC.,

Defendant, Appellant.

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

3

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.

8

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.

18

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.

19

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