Lowell v. Wright ( 2020 )

325
Argued and submitted April 5, 2018, reversed and remanded September 2, 2020
Tom LOWELL,
dba Piano Studios and Showcase,
Plaintiff-Appellant,
v.
Matthew WRIGHT
and Artistic Piano, an Oregon corporation,
Defendants-Respondents.
Jackson County Circuit Court
13CV04582; A162785
473 P3d 1094
Plaintiff brought a defamation claim against defendants after defendant
Wright posted a negative Google review about plaintiff’s piano store. Wright
worked at a competitor’s piano store—owned by the other defendant, Artistic
Piano—at the time that he published the review. The trial court granted sum-
mary judgment in favor of defendants, concluding that plaintiff’s inability to pro-
duce a copy of the actual review precluded him from prevailing on his defamation
claim, even if a reasonable factfinder could find that two of Wright’s statements
implied assertions of objective fact, as relevant to First Amendment protection.
Plaintiff appeals. Held: The trial court erred in granting summary judgment to
defendants. The absence of the actual review from the record is not dispositive;
to the extent there is a dispute about the content of the review, the trial court
should have viewed the evidence in the light most favorable to the nonmoving
party. As for defendants’ assertion that Wright’s statements are fully protected
by the First Amendment, Wright was speaking on a matter of public concern,
but his review implied two assertions of objective fact, so defendants were not
entitled to summary judgment on that basis. Finally, plaintiff is not required
to prove actual malice, but, even if he were, the evidence would be sufficient to
defeat defendants’ summary judgment motion as to that issue.
Reversed and remanded.
Dan Bunch, Judge.
Linda K. Williams argued the cause and filed the briefs
for appellant.
Tracy M. McGovern argued the cause for respondents.
Also on the brief were Alicia M. Wilson and Frohnmayer,
Deatherage, Jamieson, Moore, Armosino & McGovern, P.C.
Before DeHoog, Presiding Judge, and DeVore, Judge, and
Aoyagi, Judge.*
______________
* DeVore, J., vice Hadlock, J. pro tempore.
326 Lowell v. Wright
AOYAGI, J.
Reversed and remanded.
Cite as 306 Or App 325 (2020) 327
AOYAGI, J.
Plaintiff Lowell, the owner of a piano store, brought
this defamation action against defendant Wright, an indi-
vidual, and defendant Artistic Piano, a competitor piano
store for whom Wright works, after Wright posted a nega-
tive Google review about plaintiff’s business. The trial court
granted summary judgment in favor of defendants. Plaintiff
appeals. For the following reasons, we agree with plaintiff
that the trial court erred in granting summary judgment to
defendants and, accordingly, reverse and remand.
I. FACTS
We state the facts in the light most favorable to
plaintiff, as the nonmoving party. ORCP 47 C.
Plaintiff owns and operates Piano Studios and
Showcase, a business that, among other things, operates
a piano store in Medford. On or about September 3, 2012,
Wright and his wife visited plaintiff’s store. Wright and his
wife had previously visited plaintiff’s store in early 2011
and had considered purchasing a piano, but his credit appli-
cation was denied. After that visit, Wright began working at
Artistic Piano, another piano store in Medford. According
to Wright, while working at Artistic Piano, he kept hear-
ing from customers about negative experiences at plaintiff’s
store, so he went to check it out for himself. Wright went
to plaintiff’s store on a day that he was off work, and he
claims not to have told his boss Werner, the owner of Artistic
Piano, that he was going. After visiting the store, Wright
posted a Google review. According to Wright, he usually
posts reviews of any business that he does business with,
and he also hoped that describing his experience might spur
plaintiff to make some changes to improve his store.
None of the parties retained a copy of the actual
review, and plaintiff’s efforts to obtain a copy from Google
during discovery were unsuccessful. However, viewing the
evidence in the light most favorable to plaintiff, the review
contained the following statements:
• Wright walked around plaintiff’s store for 45 min-
utes before anyone spoke to him.
328 Lowell v. Wright
• The store “smelled like grandma’s attic.”
• When Wright did speak to a salesman, the sales-
man told him that a Yamaha C-7 piano on the
showroom floor was about five years old. However,
Wright subsequently researched the piano (appar-
ently using its serial number) and discovered that it
was 20 years old.
• The salesman further told Wright that plaintiff “can
sell new Steinway pianos.” However, plaintiff “can-
not” sell new Steinway pianos, and “[t]here were no
new Steinways in the showroom,” which is “like a
Chevy dealer not having any Chevrolets on the lot.”
• Wright had been warned about plaintiff’s store and
now knew that it was true that “this guy can’t be
trusted.”
In December 2012, plaintiff saw Wright’s review
and was upset by it. He tracked down Wright’s phone
number and called him, while one of plaintiff’s employees,
Norling, listened and took notes. Wright eventually hung up
on plaintiff. After plaintiff’s call, Wright talked to his boss,
Werner, and showed him the review. According to Wright,
he had told Werner about his visit to plaintiff’s store after
the visit—specifically telling him about the 45-minute wait
and showing him a photo of the Yamaha C-7—but he had
not told Werner that he was going to write a review. When
Werner saw the review after plaintiff’s call, he suggested
that Wright take it down, which Wright did.
In 2013, plaintiff filed a defamation claim against
Wright and Artistic Piano. Plaintiff alleged that Wright had
been acting as an agent of Artistic Piano, a direct competi-
tor of plaintiff’s, when he posted the Google review. Plaintiff
alleged that the review “purported to describe the personal
experience of an actual customer” but that “Wright was not
a bona fide potential customer.” Plaintiff identified three
specific statements from the review as false and defamatory
assertions of fact:
“a. That a Yamaha C-7 piano serial number F4910127
on the showroom floor was misrepresented to Wright as
being about 5 years old, when in fact said piano was at least
Cite as 306 Or App 325 (2020) 329
15 years older and less valuable, and this misrepresenta-
tion of the age of the instrument was purposely made in an
effort to cheat Wright;
“b. That [plaintiff] misrepresents that he sells new
Steinway Pianos, when he actually doesn’t; and
“c. That the above misrepresentations are proof that
‘this guy can’t be trusted.’ ”
Plaintiff further alleged that “many in the community would
recognize the reference to ‘this guy’ in the Google review to
mean [plaintiff], the owner of the business.”
In 2016, defendants moved for summary judgment,
asserting that plaintiff could not prevail on his defamation
claim because plaintiff could not prove that the statements
were false and defamatory, because the statements were
nonactionable under the First Amendment to the United
States Constitution, and because plaintiff could not prove
that defendants acted with actual malice. Plaintiff opposed
the motion.
The trial court granted summary judgment to
defendants. In its letter opinion, the court first addressed
the Steinway statement, concluding that the absence of the
actual review from the record was dispositive. The court
focused on an inconsistency in the evidence as to whether,
in his review, Wright claimed that plaintiff’s salesman had
told him that plaintiff was a “Steinway dealer” (which it
is undisputed that plaintiff was not) or only that plaintiff
“could sell new Steinway pianos.” Having “reviewed all of
the depositions excerpts, affidavits, and other documents
filed in the case,” the court was “convinced that a trial
w[ould] provide no more clarity” on that issue, emphasized
the “fine-line distinction between dealing and selling,” and
stated that it would “not determine that there was a fac-
tual dispute based upon the theory that a witness may
change testimony very thoroughly developed at deposition.”
Further, the court considered there to be “insufficient clar-
ity and context” to determine with certainty whether the
statement was protected by the First Amendment, given the
contextual analysis required by Neumann v. Liles, 358 Or
706, 369 P3d 1117 (2016).
330 Lowell v. Wright
The trial court next addressed the Yamaha state-
ment, which it described as “less ambiguous, because witness
memories are more precise.” The court discussed Neumann,
358 Or at 708, in which the Oregon Supreme Court held
that a wedding guest’s negative statements about a wedding
venue in an online review—including describing the venue
owner as “two faced” and “crooked” and speculating that
she would overcharge customers and improperly retain their
deposits—were protected by the First Amendment. The trial
court viewed Wright’s statements as less damning than the
statements in Neumann, but it recognized that a factfinder
could find that no salesman had told Wright that the C-7
was only five years old. Nonetheless, the court concluded that
defendants were entitled to summary judgment, because
“inexact memories and very general summaries of the online
review” did not allow for “the proper in-depth inquiries.”
Finally, the trial court concluded that Wright’s
statement that “this guy can’t be trusted” was “so clearly
one of subjective opinion that it cannot be the basis of an
action in defamation.” Having decided that plaintiff could
not prevail on any of the allegedly defamatory statements,
the court granted summary judgment to defendants and,
subsequently, entered a judgment dismissing plaintiff’s def-
amation claim.
Plaintiff appeals. Although he asserts six assign-
ments of error, plaintiff challenges only one ruling—the
trial court’s grant of summary judgment to defendants on
the defamation claim—assigning error to different aspects
of the court’s reasoning. Because plaintiff’s arguments are
better viewed as raising a single assignment of error, we
treat them as such. See ORAP 5.45(3) (each assignment of
error should challenge a specific “ruling”); Cedartech, Inc.
v. Strader, 293 Or App 252, 256, 428 P3d 961 (2018) (“The
assignments are criticisms of the trial court’s reasons for its
result but are not truly rulings of the trial court of the sort
that are required to be identified in an assignment of error.”
(Emphases in original.)).
II. ANALYSIS
We review the trial court’s summary judgment rul-
ing to determine whether any genuine issue of material fact
Cite as 306 Or App 325 (2020) 331
exists and, if not, whether defendants were entitled to judg-
ment as a matter of law. ORCP 47 C. No genuine issue of
material fact exists if, based on the record before the trial
court viewed in the light most favorable to plaintiff, “no
objectively reasonable juror could return a verdict for the
[plaintiff] on the matter that is the subject of the motion for
summary judgment.” Id. Plaintiff has the burden of produc-
ing evidence on any issue raised in the motion as to which
he would have the burden of persuasion at trial. Id.A. Basic First Amendment Principles Relevant to Defamation
Under Oregon law, a defamation claim has three
elements: (1) the making of a defamatory statement; (2) pub-
lication of the defamatory material to a third party; and
(3) resulting special harm, unless the statement is defam-
atory per se and therefore gives rise to presumptive special
harm. National Union Fire Ins. Co. v. Starplex Corp., 220
Or App 560, 584, 188 P3d 332, rev den, 345 Or 317 (2008). A
defamatory statement is one that would subject the plaintiff
to hatred, contempt, or ridicule; would tend to diminish the
esteem, respect, goodwill, or confidence in which the plain-
tiff is held; or would excite adverse, derogatory, or unpleas-
ant feelings or opinions against the plaintiff. Neumann,
358 Or at 711. In the professional context, a statement is
defamatory if it “ ‘ascribes to another conduct, characteris-
tics or a condition incompatible with the proper conduct of
[the person’s] lawful business, trade, [or] profession.’ ” Fowler
v. Stradley, 238 Or 606, 611, 395 P2d 867 (1964) (quoting
Restatement (First) of Torts § 573 (1939)); see also Wheeler
v. Green, 286 Or 99, 124, 593 P2d 777 (1979) (accusation of
misconduct or dishonesty in performance of the plaintiff’s
profession or employment is defamation per se).
Some statements are nonactionable, even if false,
because of the free-speech protections of the First Amendment.
Over the past 50 years, beginning with New York Times Co.
v. Sullivan, 376 US 254, 84 S Ct 710, 11 L Ed 2d 686 (1964),
the United States Supreme Court has issued a series of deci-
sions regarding the First Amendment limitations on state-
law defamation claims, resulting in a relatively complex web
of standards and considerations relevant to whether a state-
ment is protected by the First Amendment. See Milkovich v.
332 Lowell v. Wright
Lorain Journal Co., 497 US 1, 11-23, 110 S Ct 2695, 111 L Ed
2d 1 (1990) (providing general overview of First Amendment
principles applicable to state-law defamation claims).
Broadly speaking, the Court has recognized that
speech about public officials, speech about public figures,
and speech about matters of public concern each implicate
the First Amendment. In practice, that means that the First
Amendment limits the circumstances under which liability
may be imposed for such speech in a state-law defamation
action. See Sullivan, 376 US at 279-80 (because of the First
Amendment, speech about a public official and his or her
public duties cannot give rise to defamation liability unless
the speaker acted with “actual malice”); Curtis Publishing
Co. v. Butts, 388 US 130, 164, 87 S Ct 1975, 18 L Ed 2d
(1967) (Warren, C. J., concurring) (because of the First
Amendment, speech about a public figure on a public issue
cannot give rise to defamation liability unless the speaker
acted with “actual malice”) 1; Gertz v. Robert Welch, Inc., 418
US 323, 348-49, 94 S Ct 2997, 4 L Ed 2d 789 (1979) (because
of the First Amendment, speech about a private party on
a matter of public concern cannot give rise to defamation
liability unless the speaker was at least negligent, and the
plaintiff’s recovery is limited to actual damages unless the
speaker acted with “actual malice”).
One such protection is that speech on a matter of
public concern that does not imply an assertion of objec-
tive fact is fully protected by the First Amendment and
thus nonactionable in defamation. Milkovich, 497 US at 20.
That principle is sometimes loosely described as the First
Amendment protecting “opinion speech,” but the Court has
expressly rejected the use of the term “opinion” to describe
what is protected, because “a wholesale defamation exemp-
tion for anything that might be labeled ‘opinion’ ” would
“ignore the fact that expressions of ‘opinion’ may often imply
an assertion of objective fact.” Id. at 18.
1
“Although Mr. Justice Harlan announced the result in [Curtis Publishing],
a majority of the Court agreed with Mr. Chief Justice Warren’s conclusion that
the New York Times test should apply to criticism of ‘public figures’ as well as
‘public officials.’ ” Gertz v. Robert Welch, Inc., 418 US 323, 336, 94 S Ct 2997,
4 L Ed 2d 789 (1979).
Cite as 306 Or App 325 (2020) 333
In determining whether a statement is sufficiently
factual to be actionable without offending the First Amendment,
the dispositive question “is whether a reasonable factfinder
could conclude that the statement implies an assertion of
objective fact about the plaintiff.” Neumann, 358 Or at 715;
see Milkovich, 497 US at 21 (“The dispositive question in the
present case then becomes whether a reasonable factfinder
could conclude that the statements in the Diadiun column
imply an assertion that petitioner Milkovich perjured him-
self in a judicial proceeding.”). Oregon has adopted the Ninth
Circuit’s three-part test to answer that question, requiring
consideration of “(1) whether the general tenor of the entire
publication negates the impression that the defendant was
asserting an objective fact; (2) whether the defendant used
figurative or hyperbolic language that negates that impres-
sion; and (3) whether the statement in question is suscep-
tible of being proved true or false.” Neumann, 358 Or at
718-19. That test derives directly from Milkovich, in which
the Court concluded that the writer’s suggestion that the
petitioner (a wrestling coach) had committed perjury in a
hearing was “sufficiently factual to be susceptible of being
proved true or false,” and “the impression that the writer
was seriously maintaining that petitioner committed the
crime of perjury” was not “negated” by his use of “loose, fig-
urative, or hyperbolic language” or the “general tenor of the
article.” 497 US at 21.
B. The Absence of the Actual Review from the Record
We turn to the particulars of this case. As previ-
ously mentioned, none of the parties retained a copy of
Wright’s review, and plaintiff’s efforts to obtain a copy from
Google were unsuccessful. The trial court viewed that fact
as fatal to plaintiff’s defamation claim, at least as to the
Steinway and Yamaha statements. We agree with plaintiff
that the trial court erred in taking that view. Although not
having a copy of the actual review complicates matters and
may make it more difficult for plaintiff to prove his case, it
is not dispositive and did not entitle defendants to judgment
as a matter of law.
Defamation may be in the form of libel (defama-
tion by printed or written words) or slander (defamation by
334 Lowell v. Wright
spoken words). Neumann, 358 Or at 712. Slander claims have
long been litigated without the benefit of exact recordings,
even if, with technological changes, recordings of the spoken
word are now more common. See, e.g., Pollard v. Lyon, 91
US 225, 23 L Ed 308 (1875) (slander claim); Swift & Co. v.
Gray, 101 F2d 976, 981-82 (9th Cir 1939) (a slander plaintiff
need not prove that the defendant spoke precisely the words
alleged in the complaint but only that the defendant spoke
words that were “in substance the same, or have substan-
tially the same meaning,” i.e., “so many of the words alleged
in the declaration as constitute the sting of the charge” or
“as contain the poison to the character and constitute the
precise charge of slander averred” (internal alterations and
quotation marks omitted)). As for libel, by definition, libelous
statements have been put in writing, and, as such, parties
in a libel action usually can provide the court with an exact
reproduction of the offending publication. See, e.g., Sullivan,
376 US at 256-57; Neumann, 358 Or at 719. But it does not
follow that such definitive evidence of the defendant’s exact
words is a prerequisite to a libel claim.2
Unlike the trial court, we do not view the absence
from evidence of an actual copy of Wright’s review as enti-
tling defendants to summary judgment. Having a copy of
Wright’s review would certainly narrow the issues for trial,
in that it would resolve any dispute about what he said.
However, factfinders have long had the job of assessing com-
peting evidence, making credibility determinations, and
deciding what happened when what happened is in dispute.
Here, four people—plaintiff, plaintiff’s employee Norling,
Wright, and Werner—read the Google review and testified
as to what it said. For summary judgment purposes, the
trial court should have viewed that evidence in the light
most favorable to plaintiff, leaving it to a factfinder to make
credibility determinations to the extent that there are mate-
rial variations in what people remember about the review.
ORCP 47 C.
2It should be noted that defendants’ argument in the trial court and on
appeal has been that the exact words of the review are essential to determining
whether Wright’s statements were defamatory and whether they are protected
by the First Amendment. Defendants have not made any arguments under
the Oregon Evidence Code, and we express no opinion on any potential Oregon
Evidence Code issues.
Cite as 306 Or App 325 (2020) 335
As for the trial court’s concern that it needed to see
the entire review to assess whether Wright’s allegedly defam-
atory statements are protected by the First Amendment, it
is certainly true that the general tenor of a piece and the
type of language used are important factors in assessing
whether a statement implies an assertion of objective fact.
Neumann, 358 Or at 718-19. However, nothing in Neumann
or the caselaw from which it derives suggests that the exis-
tence of a dispute over the defendant’s exact words precludes
the plaintiff from prevailing on a defamation claim. Again,
both parties were free to proffer evidence regarding all rele-
vant aspects of the review.
That leaves the trial court’s suggestion that plain-
tiff was attempting to create a factual dispute by chang-
ing his testimony over time, specifically with respect to the
Steinway statement. It is unclear what the trial court meant.
It appears that plaintiff and Norling consistently testified
or attested that the review said that plaintiff’s salesman
told Wright that plaintiff could “sell new Steinways” when
plaintiff could not sell new Steinways. It was Wright and
Werner who injected the possibility that the review said
that plaintiff’s salesman told Wright that plaintiff was a
Steinway dealer when plaintiff was not a Steinway dealer.3
To the extent that the seller/dealer distinction is relevant to
whether the statement is defamatory (as the trial court sug-
gested)—even though, in either version, Wright asserted in
his review that the salesman’s statement to him was false—
that is a fact dispute to be resolved by the factfinder, but it
does not affect the First Amendment analysis.
C. Whether Wright’s Speech Is Protected by the First
Amendment
Having concluded that plaintiff’s failure to produce
an actual copy of Wright’s review is not dispositive, we next
consider whether defendants were nonetheless entitled to
summary judgment because Wright’s statements are fully
protected by the First Amendment as speech on a matter of
3
At one point, plaintiff sought to amend his complaint to reflect Wright’s and
Werner’s testimony, but the trial court denied the amendment. Plaintiff also once
referred to the “Steinway dealer” issue in a reply brief unrelated to defendants’
summary judgment motion. Neither is relevant to whether defendants were enti-
tled to summary judgment.
336 Lowell v. Wright
public concern that does not imply an assertion of objective
fact about plaintiff.4
In the trial court, defendants asserted that Wright
was speaking on a matter of public concern and that his
statements were not “factual” for First Amendment pur-
poses, while plaintiff contended that Wright was not speak-
ing on a matter of public concern or that, if he was, his
statements were factual in nature. In ruling on summary
judgment, the trial court implicitly concluded (or assumed
without deciding) that Wright was speaking on a matter
of public concern. As for whether Wright’s review implied
assertions of objective fact, the trial court expressly con-
cluded that the “this guy can’t be trusted” statement was
nonactionable, while it appears to have concluded that the
Yamaha and Steinway statements could be sufficiently fac-
tual to be actionable but for the absence of the actual review
from the record.
1. Whether Wright was speaking on a matter of public
concern
“The inquiry into the protected status of speech
is one of law, not fact.” Connick v. Myers, 461 US 138, 148
n 7, 103 S Ct 1684, 75 L Ed 2d 708 (1983). We first address
whether Wright was speaking on a “matter of public con-
cern” within the meaning of the First Amendment case law.
Constitutional protection for speech on matters
of public concern is grounded in the important role of
free speech in public affairs. The United States Supreme
Court “has recognized that expression on public issues ‘has
always rested on the highest rung of the hierarchy of First
Amendment values.’ ” NAACP v. Claiborne Hardware Co.,
458 US 886, 913, 102 S Ct 3409, 73 L Ed 2d 1215 (1982) (quot-
ing Carey v. Brown, 447 US 455, 467, 100 S Ct 2286, 65 L Ed
2d 263 (1980)). “[S]peech concerning public affairs is more
than self-expression; it is the essence of self-government.”
Garrison v. Louisiana, 379 US 64, 74-75, 85 S Ct 209, 13
L Ed 2d 125 (1964). There is a “profound national commit-
ment to the principle that debate on public issues should
4
In discussing defendants, we do not distinguish between Wright and
Artistic Piano, as neither of them makes any argument independent of the other.
Cite as 306 Or App 325 (2020) 337
be uninhibited, robust, and wide-open.” Sullivan, 376 US at
270.
To promote public discourse, the First Amendment
protects even false speech on matters of public concern, up
to a point. It does so not to protect the false speech itself
but, rather, to encourage truthful speech on public issues,
unhampered by the fear of liability for making innocent fac-
tual errors along the way:
“Spreading false information in and of itself carries no
First Amendment credentials. ‘[T]here is no constitutional
value in false statements of fact.’ [Gertz, 418 US at 340.]
“Realistically, however, some error is inevitable; and
the difficulties of separating fact from fiction convinced the
Court in New York Times, Butts, Gertz, and similar cases to
limit liability to instances where some degree of culpabil-
ity is present in order to eliminate the risk of undue self-
censorship and the suppression of truthful material.”
Herbert v. Lando, 441 US 153, 171-72, 99 S Ct 1635, 60 L Ed
2d 115 (1979). As the Court described it in Sullivan, “errone-
ous statement is inevitable in free debate, and * * * it must
be protected if the freedoms of expression are to have the
breathing space that they need to survive.” 376 US at 271-72(internal quotation marks omitted).
For First Amendment purposes, speech need not
concern the most pressing political or social issues of the
day for it to be on a matter of public concern. Mine Workers
v. Illinois Bar Assn., 389 US 217, 223, 88 S Ct 353, 19 L Ed
2d 426 (1967) (“The First Amendment does not protect
speech and assembly only to the extent it can be charac-
terized as political. ‘Great secular causes, with small ones,
are guarded.’ ” (Quoting Thomas v. Collins, 323 US 516, 531,
65 S Ct 315, 89 L Ed 430 (1945).)). Both the individual con-
sumer and society in general have strong interests in the
free flow of commercial information. Va. Pharmacy Bd. v. Va.
Consumer Council, 425 US 748, 763, 96 S Ct 1817, 48 L Ed
2d 346 (1976) (further stating that an individual consumer’s
interest in the free flow of commercial information “may be
as keen, if not keener by far, than his interest in the day’s
most urgent political debate”). Relatedly, consumer speech
regarding goods, services, and the businesses that provide
338 Lowell v. Wright
them to the public has typically been recognized as speech
on a matter of public concern.5 See, e.g., Neumann, 358 Or
at 720 (consumer review of a wedding venue was speech
on a matter of public concern); Unelko Corp. v. Rooney, 912
F2d 1049, 1056 (9th Cir 1990) (Andy Rooney’s statement on
60 Minutes that a windshield-wiper product called Rain-X
“didn’t work” was speech on a matter of public concern).
In this case, Wright’s review of plaintiff’s piano busi-
ness appears, at first blush, to be very similar to the review
in Neumann, as far as the “public concern” issue. Wright
posted his review on a publicly accessible website (Google),
and the review’s content related to matters of general inter-
est to the public, particularly those members of the public in
the market for a piano. In Neumann, the defendant posted
a review of a wedding venue “on a publicly accessible web-
site” (Google Reviews), and the review’s content “related to
matters of general interest to the public, particularly those
members of the public who are in the market for a wedding
venue.” Neumann, 358 Or at 720. The Oregon Supreme Court
“readily conclude[d]” that the defendant in Neumann had
been speaking on a matter of public concern. Id.There is a difference between this situation and
Neumann, however, which is that it was undisputed in
Neumann that the defendant was an actual wedding guest
at a wedding that took place at the plaintiff’s venue, whereas
plaintiff in this case contends that Wright was not a bona
fide potential customer but instead was acting to further
the private economic interests of himself and his employer.
In plaintiff’s view, a real consumer writing a review of his
business would be speaking on a matter of public concern,
but the employee of a competitor posting a “fake consumer
review” was not. Defendants respond that the speaker’s
5
Although Virginia Pharmacy Board itself involved “commercial speech,” we
do not mean to suggest that speech by consumers about businesses from which
they obtain goods and services constitutes “commercial speech” in the First
Amendment sense. See Central Hudson Gas & Elec. v. Public Serv. Comm’n, 447
US 557, 562-63, 100 S Ct 2343, 65 L Ed 2d 341 (1980) (the federal constitution
“accords a lesser protection to commercial speech than to other constitutionally
guaranteed expression”). “Commercial speech” is “usually defined as speech that
does no more than propose a commercial transaction.” United States v. United
Foods, Inc., 533 US 405, 409, 121 S Ct 2334, 150 L Ed 2d 438 (2001).
Cite as 306 Or App 325 (2020) 339
motivation is irrelevant to whether speech is on a matter of
public concern for First Amendment purposes.
Contrary to defendants’ argument, a speaker’s motive
or purpose in speaking is relevant to whether speech is pro-
tected by the First Amendment. The issue appears to arise
most frequently in the context of public employment. When
a public employee is terminated based on speech and files
a civil rights action, the court must determine whether the
speech is protected by the First Amendment. Connick, 461
US at 140. “[A] public employee does not relinquish First
Amendment rights to comment on matters of public interest
by virtue of government employment.” Id. However, “when a
public employee speaks not as a citizen upon matters of pub-
lic concern, but instead as an employee upon matters only of
personal interest, absent the most unusual circumstances, a
federal court is not the appropriate forum in which to review
the wisdom of a personnel decision taken by a public agency
allegedly in reaction to the employee’s behavior.” Id. at 147.
In the public-employee context, “[w]hether an
employee’s speech addresses a matter of public concern must
be determined by the content, form, and context of a given
statement, as revealed by the whole record.” Id. at 147-48.
Content refers to the topic of the speech; form refers to the
manner in which it was communicated; and context refers
to the context in which it occurred, including the speaker’s
motive for speaking. See, e.g., Breuer v. Hart, 909 F2d 1035,
1038 (7th Cir 1990) (demonstrating how to conduct a “con-
tent, form, and context” analysis); Linhart v. Glatfelter, 771
F2d 1004, 1010 (7th Cir 1985) (“The test requires us to look
at the point of the speech in question: [W]as it the employ-
ee’s point to bring wrongdoing to light? Or to raise other
issues of public concern, because they are of public concern?
Or was the point to further some purely private interest? In
Connick itself there was no doubt that the issues raised by
the employee, issues of morale and discipline, were of public
concern; the court looked beyond that fact to the employee’s
motive in raising them[.]”).
In Dun & Bradstreet, the Court used the same
public-concern test from Connick—requiring consideration
of “content, form, and context”—to determine whether a def-
amation defendant had been speaking on a matter of public
340 Lowell v. Wright
concern and was thus subject to First Amendment protec-
tions. See Dun & Bradstreet, Inc. v. Greenmoss Builders,
472 US 749, 761-62, 105 S Ct 2939, 86 L Ed 2d 593 (1985).
In Dun & Bradstreet, the Court evaluated the content,
form, and context of allegedly defamatory statements—
specifically a credit agency’s statements to five subscribers
regarding the plaintiff’s creditworthiness—and concluded
that the speech was not on a matter of public concern. Id. at
762. Referring back to the touchstone principle of Sullivan,
the Court concluded by stating that there was “simply no
credible argument” that the type of credit reporting at issue
required special protection to ensure that “ ‘debate on pub-
lic issues [will] be uninhibited, robust, and wide-open.’ ” Id.
(quoting Sullivan, 376 US at 270).
Here in Oregon, in both the public-employee and
defamation contexts, we have recognized that the speaker’s
motivation or purpose in speaking is relevant to whether
speech is protected by the First Amendment.
In the public-employee context, we have discussed
Connick and stated that, in determining whether an employ-
ee’s speech is protected, “[w]e consider plaintiff’s motives in
making the statements, as well as the subject matter of the
statements.” Robson v. Klamath County Board of Health,
105 Or App 213, 218, 804 P2d 1187, adh’d to as modified on
recons, 109 Or App 242 (1991), rev den, 314 Or 176 (1992).
In the defamation context, the Oregon Supreme
Court has held that a fake customer complaint written by
a competitor to a mutual distributor was not speech on a
matter of public concern. Harley-Davidson v. Markley, 279
Or 361, 363, 366, 568 P2d 1359, 1361 (1977). Although the
court gave little explanation of its specific reasoning, it, like
the Court in Dun & Bradstreet, ultimately harkened back
to the touchstone principle of Sullivan, stating that “the
interest in democratic dialogue [was] non-existent” in such
circumstances and that “[t]he defamatory matter [did] not
contribute to the free exchange of ideas in decision making
for a self-governing society.” Id. at 369.
Another relevant precedent is our decision in Cooper
v. PGE, 110 Or App 581, 824 P2d 1152, rev den, 313 Or 299Cite as 306 Or App 325 (2020) 341
(1992). In Cooper, the plaintiff was a contractor who had
been doing work at the Trojan nuclear power plant (owned
by the defendant), until the defendant obtained information
that the plaintiff was using and dealing cocaine, at which
point it withdrew his security clearance. Id. at 583-84. The
defendant eventually told the plaintiff’s employer why it had
withdrawn his security clearance, after which the plaintiff
brought a defamation claim against the defendant. Id. at
585. We concluded that the defendant had not been speak-
ing on a matter of public concern “in the sense that the term
has been used by the United States Supreme Court and the
Oregon Supreme Court.” Id. at 588. We recognized that “the
security of the Trojan nuclear facility is certainly a matter
that concerns the public welfare and safety.” Id. (emphasis
in original). However, the statements were “not published
in a way that made them available to the general public”
or “a subject for public discussion or comment.” Id. And, in
context, the speech “involved a question of personnel man-
agement, not a publicly debatable question concerning secu-
rity policies at Trojan.” Id. Ultimately, we concluded that
the defendant had not been speaking on a matter of public
concern and that, consequently, the normal state law of def-
amation applied, without any First Amendment protection.
See id.
Under existing precedent of this court, the Oregon
Supreme Court, and the United States Supreme Court, a
speaker’s motivation or purpose in speaking is a relevant
consideration in determining whether he or she was speak-
ing on a matter of public concern for First Amendment pur-
poses. We reject defendants’ argument to the contrary.6
6
In arguing that the speaker’s purpose is irrelevant to First Amendment
protection, defendants rely heavily on Obsidian Fin. Grp., LLC v. Cox, 740 F3d
1284, 1287, 1291-92 (9th Cir 2014), in which the defendant had posted defam-
atory comments about the plaintiffs online, and, even though the defendant
“apparently ha[d] a history of making similar allegations and seeking payoffs
in exchange for retraction,” the court concluded that she was speaking on a
matter of public concern. The Ninth Circuit has expressly recognized that, in
deciding whether allegedly defamatory speech is on a matter of public concern,
it is necessary to evaluate content, form, and context. Unelko, 912 F2d at 1056.
We do not understand Obsidian to exclude motivation as a relevant consider-
ation. As for the particular conclusion on public concern that the court reached
on the summary judgment record in that case, we express no opinion on that
issue.
342 Lowell v. Wright
We now turn to the summary judgment record in
this case to determine whether the trial court correctly con-
cluded that Wright was necessarily speaking on a matter of
public concern, triggering First Amendment protection. We
begin with the content of Wright’s statements. Although it
may not be a matter of overwhelming public interest, the
business practices of plaintiff’s piano store, particularly
the honesty of plaintiff’s salespeople, is a matter of pub-
lic interest. The next factor is form. The form of Wright’s
statements was a consumer review published on a publicly
accessible website. Defaming someone to a larger audience
does not in and of itself trigger First Amendment protec-
tion, but the fact that Wright’s statements were placed in
a public forum is relevant to the analysis. The final con-
sideration is context. The only evidence is that Wright
and his wife went to plaintiff’s store on a day that Wright
was off work, because, while working at Artistic Piano,
Wright had heard from customers about negative experi-
ences at plaintiff’s store and wanted to check it out him-
self. According to Wright, he did not tell Werner that he
was going to plaintiff’s store, although he told Werner about
the experience later the same day. According to Wright, he
usually posts reviews of any business that he does business
with, and he posted a review of plaintiff’s store, without
telling Werner beforehand, to relay his experience and
in the hopes that it might spur plaintiff to make some
improvements.
On that record, the trial court was correct in
treating Wright’s statements as speech on a matter of
public concern. Absent some additional evidence beyond
the mere fact that Wright worked for a competitor’s piano
store, it would be entirely speculative for a factfinder to
find that Wright was speaking solely to further private
interests, such as his and his employer’s economic inter-
ests, as opposed to being at least partially motivated by
public concern. Content, form, and context will come
together in different ways in different cases, but, at least
with respect to a consumer review of a publicly available
good or service published in a public forum, the speak-
er’s motivation would have to be to further purely pri-
vate interests to take it outside the First Amendment. No
Cite as 306 Or App 325 (2020) 343
such finding could be made, except by speculation, on this
record.7
2. Whether Wright’s review implied objective facts about
plaintiff
Having concluded that defendants established for
purposes of their summary judgment motion that Wright
was speaking on a matter of public concern, we next address
whether Wright’s review implies assertions of objective fact
about plaintiff. The First Amendment precludes liability
for statements that a reasonable factfinder could not find
to imply an assertion of objective fact about the plaintiff.
Milkovich, 497 US at 20; Neumann, 358 Or at 715. As pre-
viously noted, the trial court expressly concluded that the
statement “this guy can’t be trusted” is not sufficiently fac-
tual to be actionable, while it suggested that the Steinway
and Yamaha statements could be sufficiently factual to be
actionable but for the absence of the actual review from the
record.
Viewing the record in the light most favorable to
plaintiff as the nonmoving party, we conclude that the
Steinway and Yamaha statements are sufficiently “factual”
to be actionable but that the “this guy can’t be trusted”
statement is not.
There is evidence that Wright said in his review that
plaintiff’s salesman told him that plaintiff could sell new
Steinway pianos, even though, according to Wright, plain-
tiff “cannot” sell new Steinway pianos. Whether the sales-
man made that statement and whether plaintiff could sell
7
It is rare for a defamation defendant’s motive for speaking to even be at
issue. Historically, most defamation cases implicating the First Amendment have
involved media defendants. In more recent cases involving consumer reviews,
the defendants are usually actual consumers with no apparent ulterior motives.
Logic suggests that a case could arise in which the defendant’s motive for speak-
ing is seriously disputed and would be determinative of First Amendment protec-
tion in an otherwise close case—and logic suggests that a factfinder would need
to resolve that dispute—so we assume as much for purposes of our discussion.
However, to be clear, the United States Supreme Court has treated it as an open
question whether factfinding has a role in determining whether a defendant was
speaking on a matter of public concern. See Rankin v. McPherson, 483 US 378,
385 n 8, 107 S Ct 2891, 97 L Ed 2d 315 (1987) (“Even assuming that the District
Court can be viewed to have made any findings of fact on the public concern issue,
it is unclear to what extent that issue presents a question of fact at all.”).
344 Lowell v. Wright
new Steinway pianos are both susceptible of being proved
true or false. The same is true of Wright’s claim that plain-
tiff’s salesman told him that a particular Yamaha C-7 piano
was about five years old when it was actually 20 years old.
Whether the salesman made that statement and the actual
age of the piano are both susceptible of being proved true or
false.
Neither the language nor general tenor of the review
negate the impression that Wright was “seriously maintain-
ing” that the salesman lied to him about plaintiff’s ability to
sell Steinways and lied to him about the age of the Yamaha
C-7 piano. Milkovich, 497 US at 21 (considering whether the
writer’s use of “loose, figurative, or hyperbolic language”
or the “general tenor of the article” negated the impression
that the writer “was seriously maintaining that petitioner
committed the crime of perjury”); see also Neumann, 358 Or
at 718-19 (requiring consideration of whether the general
tenor of the publication or the use of figurative or hyper-
bolic language “negates the impression” that the defendant
was asserting an objective fact). There is evidence of some
figurative language in the review, specifically Wright’s com-
ment that the store “smelled like grandma’s attic” and his
statement that plaintiff claiming to sell new Steinway pia-
nos but not having any in the store was “like a Chevy dealer
not having any Chevrolets on the lot.” However, overall, the
use of such language does not negate the impression that
Wright was serious about the salesman’s alleged misrepre-
sentations. Nor does anything about the general tenor of the
review negate that impression.
Thus, the Steinway and Yamaha statements are
sufficiently factual to be actionable. The same cannot be said
of “this guy can’t be trusted.” In isolation, such a statement
is unquestionably subjective and not susceptible of being
proved true or false. The only question is whether its nature
changes when viewed in the larger context of the Steinway
and Yamaha statements. In context, the statement may be
fairly understood to mean that plaintiff “can’t be trusted”
because his salesman misrepresented to Wright that plain-
tiff can sell new Steinway pianos and because his salesman
misrepresented to Wright that the Yamaha C-7 on the floor
was only five years old.
Cite as 306 Or App 325 (2020) 345
When a person discloses the facts from which he
has drawn a negative conclusion about the plaintiff—and
the facts themselves are true—the conclusion typically
falls within the protection of the First Amendment, even if
it relies on faulty reasoning. See Partington v. Bugliosi, 56
F3d 1147, 1156 (9th Cir 1995) (“The courts of appeals that
have considered defamation claims after Milkovich have
consistently held that when a speaker outlines the factual
basis for his conclusion, his statement is protected by the
First Amendment.”). In such circumstances, the conclusion
implies no facts beyond those already stated and simply
reflects the speaker’s own personal conclusion from those
facts. The situation is slightly different when the disclosed
facts are allegedly false, but, ultimately, the same reasoning
applies. Wright’s statement that “this guy can’t be trusted”
is his own conclusion from the disclosed facts. The underly-
ing “fact” statements are actionable, but Wright’s conclusion
is not.
In concluding that two of Wright’s three challenged
statements are sufficiently factual to be actionable without
offending the First Amendment, it is helpful to contrast
Wright’s review with the review in Neumann. Wright’s
review was generally objective and factual in tenor, albeit
containing a couple figurative statements for color, and there
is no evidence of hyperbole. The thrust of the review was that
potential customers should be wary of plaintiff’s business
because his salesman made two specific false statements
to Wright, one about plaintiff’s ability to sell new Steinway
pianos and one about the age of a specific Yamaha C-7 piano
on the floor.
By contrast, the review in Neumann was packed
with subjective statements that were not susceptible of
being proved true or false, such as calling the wedding a
“Disaster!!!!!”; describing it as “[t]he worst wedding expe-
rience of [the reviewer’s] life!”; saying that the venue was
not a “great place” to get married like other places; and
describing the owner as “two faced,” “crooked,” and “rude”
and stating that, “in my opinion she will find a why [sic]
to keep your $500 deposit, and will try to make you pay
even more.” Neumann, 358 Or at 708-09. To the extent that
one or two statements in the Neumann review, in isolation,
346 Lowell v. Wright
might have been susceptible of being proved true or false,
the general tenor of the review and the defendant’s use of
hyperbolic language were such as to negate the impression
of serious accusations of fact. See, e.g., id. at 722 (“[I]n light
of the hyperbolic tenor of the review, the use of the word
‘crooked’ does not suggest that Liles was seriously main-
taining that Neumann had, in fact, committed a crime.”).
As one court put it well, “the test of libel is not quantitative,”
and “a single sentence may be the basis for an action in libel
even though buried in a much longer text,”8 but, [w]hile a
drop of poison may be lethal, weaker poisons are sometimes
diluted to the point of impotency.” Washburn v. Wright, 261
Cal App 2d 789, 795, 68 Cal Rptr 224 (1968).
Unlike the review in Neumann, a reasonable fact-
finder could find that Wright’s review implies an assertion
of objective fact about plaintiff’s business, specifically that
plaintiff’s salesman made two specific misrepresentations to
Wright, regarding the types of new pianos that it could sell
and the age of a particular used piano that it had for sale,
which is incompatible with the proper conduct of a business.
3. Whether plaintiff can prove actual malice
Having concluded that defendants established for
purposes of their summary judgment motion that Wright
was speaking on a matter of public concern, and having con-
cluded that a reasonable factfinder could find that Wright’s
review implied two assertions of objective fact, the last ques-
tion before us is whether defendants were entitled to sum-
mary judgment because plaintiff cannot prove that Wright
acted with “actual malice.” Under Gertz, when the plaintiff
in a defamation action is a private party (not a public official
or public figure), the First Amendment limits the plaintiff’s
recovery of presumed or punitive damages to situations in
which the plaintiff proves that the defendant acted with
“actual malice.” 418 US at 349. For First Amendment pur-
poses, “actual malice” means that the defendant knew that
the statements were false or acted with reckless disregard
8
See, e.g., Milkovich, 497 US at 4-7 (libel action based on the headline and
nine sentences included in a newspaper column); Sullivan, 376 US at 257 (libel
action based on statements contained in 2 paragraphs of a 10-paragraph newspa-
per editorial).
Cite as 306 Or App 325 (2020) 347
of whether they were false. Sullivan, 376 US at 279-80.
Thus, “ ‘[a]ctual malice,’ as used by the Supreme Court of the
United States, is not malice at all.” Harley-Davidson, 279 Or
at 363 n 1 (further describing “actual malice” as an “unfor-
tunate” and confusing term, “because it does not mean hate,
ill will or intention to harm”).
Defendants argue that, in this case, they were enti-
tled to summary judgment, because plaintiff is seeking
presumed damages9 and cannot prove that Wright acted
with actual malice when he wrote his review. Defendants’
actual-malice argument is premised on Gertz applying to
all defamation claims brought by private-party plaintiffs.
However, that premise is inconsistent with current Oregon
Supreme Court case law, which is binding on this court. The
Oregon Supreme Court has expressly held that the First
Amendment limitations in Gertz apply only in defamation
actions brought by private parties against media defen-
dants. Harley-Davidson, 279 Or at 372 (holding that Gertz’s
limitation on recovery of punitive damages in a defamation
action applies only to media defendants); see also Bank of
Oregon v. Independent News, 298 Or 434, 445, 693 P2d 35(1985) (applying Gertz to a “media defendant”); Wheeler, 286
Or at 110 (“Although we acknowledge that there is authority
to the contrary, we conclude that we were correct when we
held in Harley-Davidson * * * that the rules first announced
in Gertz, applicable to cases in which the plaintiff is nei-
ther a public official nor a public figure, apply only to actions
against media defendants.”); Cooper, 110 Or App at 587
(“[T]he Oregon Supreme Court has interpreted Gertz to
apply only in the context of media defendants.”).
The Ninth Circuit and a number of other courts
have rejected a distinction between media and nonmedia
defendants for First Amendment purposes. See Obsidian
Fin. Grp., LLC v. Cox, 740 F3d 1284, 1291 (9th Cir 2014)
(holding that “the First Amendment defamation rules in
Sullivan and its progeny apply equally to the institutional
press and individual speakers”). However, the United States
9
It is unclear whether plaintiff is seeking only presumed damages or a com-
bination of presumed and actual damages. Due to the lack of adequate briefing
on that issue, we express no opinion on it.
348 Lowell v. Wright
Supreme Court has historically made a point of referring
to the defendants in its defamation cases as “media defen-
dants,” and it has avoided ever addressing whether that
caselaw applies equally to nonmedia defendants.10 In the
absence of controlling United States Supreme Court author-
ity, we are bound by the Oregon Supreme Court, not the
Ninth Circuit.11 J. M. v. Oregon Youth Authority, 288 Or App
642, 646, 406 P3d 1127 (2017), aff’d, 364 Or 232, 434 P3d
402 (2019). It follows that defendants cannot be entitled to
summary judgment based on any lack of evidence of actual
malice, because, under current Oregon law, the actual-
malice limitation does not apply in this case involving non-
media defendants.
In any event, even if the actual-malice require-
ment did apply and limit plaintiff’s ability to recover pre-
sumed damages, the evidence in the summary judgment
record would be sufficient to allow a finding of “actual mal-
ice.” Plaintiff’s entire theory is that neither he nor any of
his salesman made the Steinway or Yamaha statements
that Wright attributed to an unidentified salesman in his
review. Plaintiff and all of his salesman put in declarations
relevant to that point. Based on that evidence, viewed in
the light most favorable to plaintiff, a reasonable factfinder
could find that Wright fabricated the statements and that
no one actually said anything to him about plaintiff’s abil-
ity to sell new Steinways or the age of the Yamaha C-7. If
10
See, e.g., Milkovich, 497 US at 19-20 (“[Philadelphia Newspapers, Inc. v.
Hepps, 475 US 767, 777, 106 S Ct 1558, 89 L Ed 2d 783 (1986)] stands for the prop-
osition that a statement on matters of public concern must be provable as false
before there can be liability under state defamation law, at least in situations, like
the present, where a media defendant is involved.”); Gertz, 418 US at 339-42, 345,
350 (repeatedly describing the First Amendment principles in Sullivan and its
progeny as serving to avoid “media self-censorship,” and stating, in crafting spe-
cific First Amendment protections for private parties’ speech on matters of public
concern, that “the communications media are entitled to act on the assumption
that public officials and public figures have voluntarily exposed themselves to
increased risk of injury from defamatory falsehood concerning them,” whereas
“[n]o such assumption is justified with respect to a private individual”).
11
Defendants suggest that the Court abolished the media/nonmedia distinc-
tion in Citizens United v. Federal Election Comm’n, 558 US 310, 352, 130 S Ct
876, 175 L Ed 2d 753 (2010), specifically pointing to the Ninth Circuit’s citation
to Citizens United in Obsidian. We disagree that Citizens United is dispositive on
the present issue. Indeed, the Ninth Circuit itself did not treat Citizens United as
dispositive, only as indirectly supportive. See Obsidian, 740 F3d at 1290-91.
Cite as 306 Or App 325 (2020) 349
Wright fabricated statements and then attributed them to
a salesman, he necessarily would have known that what he
said was false. That would prove actual malice.
III. CONCLUSION
The trial court erred in granting summary judg-
ment to defendants on plaintiff’s defamation claim. The
absence of a copy of the actual review from the record did not
entitle defendants to summary judgment. As for Wright’s
statements being protected by the First Amendment, defen-
dants established for purposes of their summary judgment
motion that Wright was speaking on a matter of public con-
cern, but a reasonable factfinder could find that Wright’s
review implies two assertions of objective fact about plain-
tiff. As such, the First Amendment does not preclude liabil-
ity on those statements, and defendants were not entitled to
summary judgment.
Reversed and remanded.