Bertell Ollman v. Rowland Evans, Robert Novak

750 F.2d 970, 242 U.S. App. D.C. 301, 11 Media L. Rep. (BNA) 1433, 1984 U.S. App. LEXIS 16134

• Court: Court of Appeals for the D.C. Circuit
• Decided: December 6, 1984
• Docket: 79-2265
• Status: Published

Opinions

STARR, Circuit Judge:

This defamation action arises out of the publication of a syndicated column by Rowland Evans and Robert Novak in May 1978. The question before us is whether the allegedly defamatory statements set forth in the column are constitutionally protected expressions of opinion or, as appellant contends, actionable assertions of fact. We conclude, as did the District Court, that the challenged statements are entitled to absolute First Amendment protection as expressions of opinion.

I

Rowland Evans and Robert Novak are nationally syndicated columnists whose columns appear regularly in newspapers across the country. According to the complaint in this case, which was filed by plaintiff Bertell Oilman on February 15, 1979, an Evans and Novak column appeared on or about May 4, 1978 in The Washington Post and other newspapers across the Nation. Complaint H 5. Attached to the complaint as Exhibit A was a photocopy of the column, styled “The Marxist Professor’s Intentions,” as it appeared in The Washington Post on May 4, 1978. A copy of that column is reproduced as an Appendix to this opinion.

The plaintiff, Bertell Oilman, is a professor of political science at New York University. The complaint averred that Mr. Oilman “is widely esteemed among his colleagues and enjoys the highest possible reputation as a scholar of integrity and a teacher.” Complaint 11 2. In March 1978, Mr. Oilman was nominated by a departmental search committee to head the Department of Government and Politics at the University of Maryland. The committee’s recommendation “was duly approved by the Provost of the University and the Chancellor of the College Park campus.” Id. 114.

With this professional move from Washington Square to College Park, Maryland thus in the offing, the Evans and Novak article appeared. Since the years of litigation that have followed revolve entirely around this single column, we will begin by describing its contents in some detail. In our description, we will highlight the specific portions that Mr. Oilman assails as false and defamatory. The column begins as follows:

What is in danger of becoming a frivolous public debate over the appointment of a Marxist to head the University of Maryland’s department of politics and government has so far ignored this unspoken concern within the academic community: the avowed desire of many political activists to use higher education for indoctrination.

The column immediately goes on to state that:

[t]he proposal to name Bertell Oilman, Professor at New York University, as department head has generated wrongheaded debate. Politicians who jumped in to oppose Oilman simply for his Marxist philosophy have received a justifiable going-over from defenders of academic freedom in the press and the university. Academic Prince Valiants seem arrayed against McCarythite [sic] know-nothings.

With these opening two paragraphs as lead-in, the authors then pose what they deemed the pivotal issue in the debate: “But neither side approaches the crucial question: not Oilman’s beliefs, but his intentions. His candid writings avow his desire to use the classroom as an instrument for preparing what he calls ‘the revolution.’ Whether this is a form of indoctrination that could transform the real function of a university and transcend limits of academic freedom is a concern to academicians who are neither McCarthyite nor know-nothing.” (Emphasis added).

The columnists thus, in the first three paragraphs, articulated a view of what should be the central question in what they viewed as a fruitless debate. The authors then go on in the next paragraph to state: “To protect academic freedom, that question should be posed not by politicians but by professors. But professors throughout the country troubled by the nomination, clearly a minority, dare not say a word in today’s campus climate.”

With this observation, the authors turn in the following six paragraphs to a discussion of Mr. Oilman and his writings. Evans and Novak state that “[w]hile Oilman is described in news accounts as a ‘respected Marxist scholar,’ he is widely viewed in his profession as a political activist. Amid the increasingly popular Marxist movement in university life, he is distinct from philosophical Marxists. Rather, he is an outspoken proponent of ‘political Marxism.’ ” (Emphasis added).

The authors next relate Mr. Oilman’s two unsuccessful efforts to win election to membership on the council of the American Political Science Association. In these elections, the column states (and appellant does not dispute) that Professor Oilman ran as a candidate of the Caucus for a New Political Science and finished last out of sixteen candidates each time. “Whether or not that represents a professional judgment by his colleagues, as some critics contend, the verdict clearly rejected his campaign pledge: ‘If elected ... I shall use every means at my disposal to promote the study of Marxism and Marxist approaches to politics throughout the profession.’ ”

Evans and Novak then direct the four ensuing paragraphs of the column to a summary of an article by Mr. Oilman, entitled “On Teaching Marxism and Building the Movement” in the Winter 1978 issue of New Political Science. Record (“R.”) 3. In this article, Mr. Oilman claims that most students conclude his political science course with a “ ‘Marxist outlook.’ ” The authors go on:

Oilman concedes that will be seen “as an admission that the purpose of my course is to convert students to socialism.”

That bothers him not at all because “a correct understanding of Marxism (as indeed of any body of scientific truths) leads automatically to its acceptance.” * * * The “classroom” is a place where the students’ bourgeois ideology is being dismantled. “Our prior task” before the revolution, he writes, “is to make more revolutionaries.”¹

Moving to a brief discussion of Mr. Oilman’s principal work, Alienation: Marx’s Conception of Man in Capitalist Society, the authors described the work as “a ponderous tome in adoration of the master (Marxism ‘is like a magnificiently rich tapestry’). Published in 1971, it does not abandon hope for the revolution forecast by Karl'Marx in 1848.” This brings the columnists to the last statement specifically identified in the complaint as defamatory:

Such pamphleteering is hooted at by one political scientist in a major eastern university, whose scholarship and reputation as a liberal are well known. “Oilman has no status within the profession, but is a pure and simple activist, ” he said. Would he say that publicly? “No chance of it. Our academic culture does not permit the raising of such questions.” (Emphasis added).

Evans and Novak then bring the column to a close, indicating in the penultimate paragraph that “ ‘[s]uch questions’ would include these: What is the true measurement of Oilman’s scholarship? Does he intend to use the classroom for indoctrination? Will he indeed be followed by other Marxist professors? Could the department in time be closed to non-Marxists, following the tendency at several English universities?”

In the column’s final paragraph, the authors return to their opening theme that “such questions” as set forth in the previous paragraph should not be raised by politicians, even if, as the anonymous political scientist claimed, they cannot be raised within the Academy. They conclude the column by calling upon academics to address these questions:

Here are the makings of a crisis that, to protect its integrity and true academic freedom, academia itself must resolve.

On May 19, 1978, Mr. Oilman’s lawyer wrote to Evans and Novak demanding retraction of the allegedly defamatory statements in the column. Letter of I. Silver to R. Evans and R. Novak (May 19, 1978). R. 1. This Evans and Novak refused to do. On May 8, however, only four days after the Evans and Novak column appeared, The Washington Post published a letter from Mr. Oilman. In this letter, Professor Oilman rejected the allegation that he used the classroom to indoctrinate students and set the column’s quotations from his writings in what he viewed as their proper context. Letter from B. Oilman to the Editors of The Washington Post (May 8, 1978). R. 3.

The District Court granted Evans and Novak’s motion for summary judgment, concluding that the column simply reflected the columnists’ opinion and their “interpretation of [Mr. Oilman’s] writings.” Memorandum Opinion at 5.² Thus, the District Court held that the opinion was absolutely protected by the First Amendment. This appeal followed.

II

A

This case presents us with the delicate and sensitive task of accommodating the First Amendment’s protection of free expression of ideas with the common law’s protection of an individual’s interest in reputation. It is a truism that the free flow of ideas and opinions is integral to our democratic system of government. Thomas Jefferson well expressed this principle in his First Inaugural Address, when the Nation’s memory was fresh with the passage of the notorious Alien and Sedition Acts:

If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.³

At the same time, an individual’s interest in his or her reputation is of the highest order. Its protection is an eloquent expression of the respect historically afforded.-the dignity of the individual in Anglo-American legal culture.⁴ A defamatory statement may destroy an individual’s livelihood, wreck his standing in the community, and seriously impair his sense of dignity and self-esteem.

The judiciary’s task in accommodating these competing interests is by no means new: at common law, the fair comment doctrine bestowed qualified immunity from libel actions as to certain types of opinions in order that writers could express freely their views about subjects of public interest.⁵ However, since Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the nature of this accommodation has fundamentally changed. In Gertz, the Supreme Court in dicta seemed to provide absolute immunity from defamation actions for all opinions and to discern the basis for this immunity in the First Amendment. The Court began its analysis of the case by stating:

Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in “uninhibited, robust, and wide-open debate on the public issues.”⁶

By this statement, Gertz elevated to constitutional principle the distinction between fact and opinion, which at common law had formed the basis of the doctrine of fair comment.⁷ Gertz’s implicit command thus imposes upon both state and federal courts the duty as a matter of constitutional adjudication to distinguish facts from opinions in order to provide opinions with the requisite, absolute First Amendment protection.⁸ At the same time, however, the Supreme Court provided little guidance in Gertz itself as to the manner in which the distinction between fact and opinion is to be discerned. That, as we shall see, is by no means as easy a question as might appear at first blush.

Indeed, Gertz did not focus on this distinction at all. Bather, assuming without lengthy discussion that the statements in that case could be construed as statements of fact, the Court held that the plaintiff, who was a private rather than public figure, could prove that the statements at issue there were libelous upon demonstrating that they were negligently made.⁹ The distinction in our law between public and private figures, however, does not directly bear on the distinction between fact and opinion.¹⁰ Expressions of opinion are protected whether the subject of the comment is a private or public figure. See Lewis v. Time, Inc., 710 F.2d 549, 555 (9th Cir.1983). In a word, Gertz’s reasoning immunizes an opinion, not because the opinion is asserted about a public figure, but because there is no such thing as a “false” opinion.

While Gertz is mute with respect to the method of separating fact from opinion, two Supreme Court cases do provide guidance in this respect. Old Dominion Branch No. 496, National Association of Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974); Greenbelt Cooperative Publishing Association v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970).¹¹ In Letter Carriers, decided by the Court on the same day as Gertz, three non-union employees of the Postal Service were included on a list of names circulated by the Letter Carriers union. To the list was appended a well-known piece of trade union literature attributed to Jack London, which defined the nature of a “scab.” Drawing upon Biblical references and American history, the definition ended on the following unflattering note:

The scab sells his birthright, country, his wife and his children and his fellowmen for an unfulfilled promise from his employer.

Esau was a traitor to himself; Judas was a traitor to his God; Benedict Arnold was a traitor to his country; a SCAB is a traitor to his God, his country, his family and his class.

Letter Carriers, 418 U.S. at 268, 94 S.Ct. at 2773. Holding this allegedly defamatory language to be absolutely protected, the Supreme Court reversed a libel judgment in favor of the non-union employees. While the Court grounded its decision upon federal labor laws’ protection of communications in a labor dispute, rather than the First Amendment, the Court’s analysis derived from Gertz’s proposition that opinions cannot be false. Id. 418 U.S. at 284, 94 S.Ct. at 2781 (citing Gertz, supra, 418 U.S. at 339-340, 94 S.Ct. at 3006-3007). To demonstrate that the union’s “scab” description was indeed opinion, the Court considered both its specific linguistic context and its broader social setting. The Court found, for instance, that the epithet “traitor” in the context of a well-known piece of union literature was deployed in a “loose, figurative sense” and could not be taken for an assertion that the identified employees had “committ[ed] the criminal offense of treason.” Id. at 284-85, 94 S.Ct. at 2781. Moving to the social context in which the statement was made, the Court further noted that this type of “exaggerated rhetoric was commonplace in labor disputes.” Thus, the Court concluded, readers would be alerted by virtue of the broad context in which the statement was made that the statement was opinion, not an imputation of actual criminal conduct. Id. at 286, 94 S.Ct. at 2782.

Letter Carriers also relied upon Greenbelt Publishing, supra, for the proposition that the allegedly libelous language must be evaluated in its broader context to assess whether a reader would have understood the allegation to be a statement of fact. Id. at 284, 94 S.Ct. at 2781. Greenbelt Publishing was, of course, a pre-Gertz case, which may be seen in retrospect as an application of the distinction between fact and opinion subsequently delineated in Gertz. In Greenbelt Publishing, a developer was attempting to secure zoning variances to construct high density housing; at the same time, the city of Greenbelt, Maryland was trying to purchase land from the developer to build a school. During the course of these negotiations, some attendees at a public meeting characterized the developer’s negotiating tactics as “blackmail.” The developer thereafter brought a successful libel suit against a local newspaper that printed this colorful characterization. The Supreme Court reversed the judgment, concluding that “as a matter of constitutional law, the word “blackmail” in these circumstances was ... not libel when reported.” Id,., 398 U.S. at 13, 90 S.Ct. at 1541. The Court noted that the Greenbelt newspaper was performing a wholly “legitimate function as a community newspaper” and that it “accurately and fully” described the developer’s negotiating proposals. The Court then held that in light of the full context of the articles a reader would have understood the “blackmail” characterization as a criticism of the developer’s negotiating tactics rather than as an actual criminal charge. Under the circumstances, the remark was deemed to be merely “rhetorical hyperbole.” Id. at 14, 90 S.Ct. at 1542.

B

There is, then, limited but helpful teaching from the Supreme Court to guide us in our inquiry. With largely uncharted seas having been left in Gertz’s wake, the lower federal courts and state courts have, not surprisingly, fashioned various approaches in attempting to articulate the Gerte-mandated distinction between fact and opinion. We pause here, briefly, to examine the results of the efforts of our fellow laborers in this new constitutional vineyard.

Some courts have, in effect, eschewed any effort to construct a theory and simply treated the distinction between fact and opinion as a judgment call. See, e.g., Shiver v. Apalachee Publishing Co., 425 So.2d 1173 (Fla.Dist.Ct.App.1983). Other courts have concentrated on a single factor, such as the verifiability vel non of the allegedly defamatory statement. See, e.g., Hotchner v. Castillo-Puche, 551 F.2d 910, 913 (2d Cir.), cert. denied sub. nom. Hotchner v. Doubleday & Co., 434 U.S. 834, 98 S.Ct. 120, 54 L.Ed.2d 95 (1977). Still others have adopted a multi-factor test, attempting to assess the allegedly defamatory proposition in the totality of the circumstances in which it appeared. See, e.g., Information Control Corp. v. Genesis One Computer Corp., 611 F.2d 781 (9th Cir.1980).¹²

In formulating a test to distinguish between fact and opinion, courts are admittedly faced with a dilemma. Because of the richness and diversity of language, as evidenced by the capacity of the same words to convey different meanings in different contexts, it is quite impossible to lay down a bright-line or mechanical distinction.¹³ Judicial decisions, however, that represent mere ad hoc judgments or which, in contrast, lay down rules of excessive complexity may deter publication of the very opinions which the Gerte-mandated distinction is designed to protect, inasmuch as potential speakers or writers would, under such regimes, be at a loss to predict what courts will ultimately deem to be opinion. While this dilemma admits of no easy resolution, we think it obliges us to state plainly the factors that guide us in distinguishing fact from opinion and to demonstrate how these factors lead to a proper accommodation between the competing interests in free expression of opinion and in an individual’s reputation.

In formulating this analysis, we agree with the overwhelming weight of post-Gerte authority that the distinction between opinion and fact is a matter of law. See, e.g., Lewis v. Time, Inc., supra, 710 F.2d at 553; Rinsley v. Brandt, 700 F.2d 1304, 1309 (10th Cir.1983); Orr v. Argus-Press Co., 586 F.2d 1108, 1114 (8th Cir.), cert. denied, 440 U.S. 960, 99 S.Ct. 1502, 59 L.Ed.2d 773 (1979). Although the Supreme Court has never directly addressed this issue, the Court has clearly ruled that questions as to other privileges derived from the First Amendment, such as the qualified privilege as to public officials and public figures, are to be decided as matters of law. See Gertz, supra, 418 U.S. at 346, 94 S.Ct. at 3010. Moreover, the predictability of decisions, which is of crucial importance in an area of law touching upon First Amendment values, is enhanced when the determination is made according to announced legal standards and when a body of public case law furnishes published ex-ampies of the manner in which these standards are to be applied.

C

While courts are divided in their methods of distinguishing between assertions of fact and expressions of opinion, they are universally agreed that the task is a difficult one. See, e.g., Rinsley v. Brandt, supra, 700 F.2d at 1309. To be sure, paradigm examples of statements of fact, on the one hand, and paradigm examples of expressions of opinion, on the other, can be contrasted. Clearly, in the former category are assertions that describe present or past conditions capable of being known through sense impressions. See Goodrich v. Waterbury Republican-American, Inc., 448 A.2d 1317, 1321 (Conn.1982) (citing 1 F. Harper & F. James, Torts § 5.28, p. 458 n. 11, § 7.8, p. 560). It is rather hard to imagine a context in which the statement, “Mr. Jones had ten drinks at his office party and sideswiped two vehicles on his way home,” could be deemed to be a statement of opinion. At the other extreme are evaluative statements reflecting the author’s political, moral, or aesthetic views, not the author’s sense perceptions. A statement such as, “Mr. Jones is a despicable politician,” is a paradigm of opinion.

It is a fitting illustration of the complexity of language and communication that many statements from which actions for defamation arise do not clearly fit into either category. These statements pose more subtle problems and are the stuff of which litigation is made. The principal difficulty arises from statements that on first analysis seem to be based upon perceptions of events, but are not themselves simply a record of those perceptions. Such statements may imply in some contexts the existence of facts not disclosed by the author.¹⁴ An example of such a statement, set forth in the Restatement (Second) of Torts, is: “Mr. Jones is an alcoholic.”¹⁵ These statements obviously can be as damaging to reputation as statements which on their face describe particular historical events.

The degree to which such kinds of statements have real factual content can, of course, vary greatly. We believe, in consequence, that courts should analyze the totality of the circumstances in which the statements are made to decide whether they merit the absolute First Amendment protection enjoyed by opinion. To evaluate the totality of the circumstances of an allegedly defamatory statement, we will consider four factors in assessing whether the average reader would view the statement as fact or, conversely, opinion.¹⁶ While necessarily imperfect, these factors will, we are persuaded, assist in discerning as systematically as possible what constitutes an assertion of fact and what is, in contrast, an expression of opinion.

First, we will analyze the common usage or meaning of the specific language of the challenged statement itself. Our analysis of the specific language under scrutiny will be aimed at determining whether the statement has a precise core of meaning for which a consensus of understanding exists or, conversely, whether the statement is indefinite and ambiguous. See Buckley v. Littell, 539 F.2d 882, 895 (2d Cir.1976), cert. denied, 429 U.S. 1062, 97 S.Ct. 785, 50 L.Ed.2d 777 (1977). Readers are, in our judgment, considerably less likely to infer facts from an indefinite or ambiguous statement than one with a commonly understood meaning. Second, we will consider the statement’s verifiability — is the statement capable of being objectively characterized as true or false? See, e.g., Hotchner v. Castillo-Puche, supra, 551 F.2d at 913. Insofar as a statement lacks a plausible method of verification, a reasonable reader will not believe that the statement has specific factual content. And, in the setting of litigation, the trier of fact obliged in a defamation action to assess the truth of an unverifiable statement will have considerable difficulty returning a verdict based upon anything but speculation. Third, moving from the challenged language itself, we will consider the full context of the statement — the entire article or column, for example — inasmuch as other, unchallengéd language surrounding the allegedly defamatory statement will influence the average reader’s readiness to infer that a particular statement has factual content. See Greenbelt Cooperative Publishing Association v. Bresler, supra, 398 U.S. at 13-14, 90 S.Ct. at 1541; cf. Restatement (Second) of Torts % 563. Finally, we will consider the broader context or setting in which the statement appears. Different types of writing have, as we shall more fully see, widely varying social conventions which signal to the reader the likelihood of a statement’s being either fact or opinion. See Old Dominion Branch No. 496, National Association of Letter Carriers v. Austin, supra, 418 U.S. at 286, 94 S.Ct. at 2782.

The first factor of our inquiry is to analyze the common usage or meaning of the allegedly defamatory words themselves.¹⁷ We seek in this branch of our analysis to determine whether the allegedly defamatory statement has a precise meaning and thus is likely to give rise to clear factual implications.¹⁸ A classic example of a statement with a well-defined meaning is an accusation of a crime. To be sure, such accusations are not records of sense perceptions. Quite to the contrary, they depend for their meaning upon social normative systems. But those norms are so commonly understood that the statements are seen by the reasonable reader or hearer as implying highly damaging facts. PostGertz courts have therefore not hesitated to hold that accusations of criminal conduct are statements “laden with factual content” that may support an action for defamation. See, e.g., Cianci v. New Times Publishing Co., 639 F.2d 54, 63 (2d Cir. 1980) (holding that an article which implied that the Mayor of Providence, R.I., had committed rape and which charged him with paying the alleged victim not to bring charges was not protected opinion). Even a somewhat less well defined accusation that a “judge is corrupt” has been held actionable. Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 1299, 397 N.Y. S.2d 943, 366 N.E.2d 1299, cert. denied, 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456 (1977). “Corruption,” at least in the context of public service, was deemed to imply factual allegations of bribery or other official malfeasance.

On the other hand, statements that are “loosely definable” or “variously interpretable” cannot in most contexts support an action for defamation. See Buckley v. Littell, supra, 539 F.2d at 895. In that case, a writer in his book on the political right in the United States accused columnist and author William F. Buckley, Jr., of being a “fellow traveler” of “fascists.” Noting that Mr. Buckley and the author of this particular tome embraced widely different definitions of “fascism” and different views as to which journals could be described as “fascist,” the court declined to develop a “correct” definition of this pivotal term.¹⁹ The Second Circuit held, rather, that the use of such expressions “cannot be regarded as having been proved to be statements of facts, among other reasons, because of the tremendous imprecision of the meaning and usage of these terms in the realm of political debate, an imprecision which is similarly echoed in the book.”²⁰ Id. at 893. Pursuing a line of analysis similar to that found in Buckley, the same court that held actionable the term “corrupt” concluded that the term “incompetent” as applied to a judge was too vague to support a claim of libel. Rinaldi v. Holt, Rinehart & Winston, Inc., supra, 397 N.Y.S. at 947, 366 N.E.2d at 1303.

The use of indefinite terms is obviously not confined to the realm of politics and public policy. In Cole v. Westinghouse Broadcasting Co., Inc., 386 Mass. 303, 435 N.E.2d 1021, cert. denied, 459 U.S. 1037, 103 S.Ct. 449, 74 L.Ed.2d 603 (1982), the Massachusetts Supreme Judicial Court held that the statement that a reporter had engaged in “sloppy and irresponsible reporting” and had poor reporting technique was too “imprecise” to support a defamation action.²¹ Similarly, in Avins v. White, 627 F.2d 637 (3d Cir.), cert. denied, 449 U.S. 982, 101 S.Ct. 398, 66 L.Ed.2d 244 (1982), the former dean of a law school claimed that his academic ability and performance had been falsely disparaged in the summary evaluation of the school’s first accreditation report. The summary bluntly stated: “[T]he most important deficiency [of the law school] is an intangible one; there is an academic ennui that pervades the institution. The intellectual spark is missing in the faculty and students.” Id. at 642. Emphasizing that the statement itself described its criticism as “intangible,” the Avins court classified the statement as an expression of opinion.

The straightforward but important principle to be drawn from cases such as Buckley, Rinaldi, Cole and Avins is that in all types of discourse, the courts must analyze the allegedly defamatory statement to determine whether it has a sufficiently definite meaning to convey facts.

In assessing whether the challenged statements are facts, rather than opinion, courts should, secondly, consider the degree to which the statements are verifiable — is the statement objectively capable of proof or disproof? See Goodrich v. Waterbury Republican-American, supra, 448 A.2d at 1319; Hotchner v. Castillo-Puche, supra, 551 F.2d at 913.²² The reason for this inquiry is simple: a reader cannot rationally view an unverifiable statement as conveying actual facts. Moreover, insofar as a statement is unverifiable, the First Amendment is endangered when attempts are made to prove the statement true or false. Lacking a clear method of verification with which to evaluate a statement— such a labelling a well-known American author a “fascist,” see Buckley v. Littell, supra — the trier of fact may improperly tend to render a decision based upon approval or disapproval of the contents of the statement, its author, or its subject.

In making this observation, we imply no criticism of a jury’s ability to find facts, if facts are to be found. The rule against allowing unverifiable statements to go to the jury is, in actuality, merely one of many rules in tort law that prevent the jury from rendering a verdict based on speculation. Cf. Hobson v. Wilson, 737 F.2d 1 at 62 (D.C.Cir.1984) (permitting First Amendment interests to be compensated “if they can be conceptualized and if harm can be shown with sufficient certainty to avoid damages based ... on pure speculation”). An obvious potential for quashing or muting First Amendment activity looms large when juries attempt to assess the truth of a statement that admits of no method of verification.

Needless to say, it will often be difficult to assay whether a statement is verifiable. Statements made in written communication or discourse range over a spectrum with respect to the degree to which they can be verified rather than dividing neatly into categories of “verifiable” and “unverifiable.” But even if the principle of inquiring as to verifiability provides no panacea, this approach will nonetheless aid trial judges in assessing whether a statement should have the benefit of the absolute privilege conferred upon expressions of opinion. Trial judges have rich experience in the ways and means of proof and so will be particularly well situated to determine what can be proven.

In addition to evaluating the precision-indefiniteness and verifiability-unverifiability of a challenged statement, courts should, thirdly, examine the context in which the statement occurs. Readers will inevitably be influenced by a statement’s context, and the distinction between fact and opinion can therefore be made only in context. As the Supreme Court’s opinions in Greenbelt and Letter Carriers suggest, the context to be considered is both narrowly linguistic and broadly social.

The degree to which a statement is “laden with factual content” or can be read to imply facts depends upon the article or column, taken as a whole, of which the statement is a part. See Information Control v. Genesis One Computer, supra, 611 F.2d at 783. The language of the entire column may signal that a specific statement which, standing alone, would appear to be factual is in actuality a statement of opinion. An example of the power of context to transform an ostensibly factual statement into one of opinion is Greenbelt Publishing. See supra I A. Because the local newspaper in that case had described the substance of the land developer’s negotiating proposals, the use of the term “blackmail” to characterize those proposals was quite plainly to be seen as an expression of opinion.²³

An article or column, however, plainly does not have to include a complete set of facts to make it clear that a statement is being used in a metaphorical, exaggerated or even fantastic sense. In Myers v. Boston Magazine Co., Inc., 380 Mass. 336, 403 N.E.2d 376 (1980), the court held as protected opinion a magazine’s statement that a television sports reporter was “the only newscaster in town who is enrolled in a course for remedial speaking.” Id., 403 N.E.2d at 377. Although the statement on its face appears quite factual, the court emphasized in its analysis that the statement appeared in an article describing the best and worst sports personalities in a series of “one-liners.” Id. For instance, the court noted that another item in the article described the Boston Bruins hockey team members as looking “like a gargoyle” and that the various descriptions had corresponding cartoons. The court concluded that the average reader would have been put on notice that he or she was reading opinions, and not being showered with facts. Id., 403 N.E.2d at 379.

Another consideration in this respect, of particular relevance to the case at hand and useful in distinguishing between fact and opinion, is the inclusion of cautionary language in the text in which the statement at issue is found, see Information Control, supra, 611 F.2d at 784 (noting that the allegedly libelous statement was preceded by the phrase, “In the opinion of Genesis’ management” and that this favored treating the statement which followed as opinion), or framing the statement as an interrogatory (“Is it not true that ... ?”). The rationale typically advanced for this consideration is that cautionary language or interrogatories of this type put the reader on notice that what is being read is opinion and thus weaken any inference that the author possesses knowledge of damaging, undisclosed facts. See Pease v. Telegraph Publishing Co., 121 N.H. 62, 426 A.2d 463, 465 (1981). In a word, when the reasonable reader encounters cautionary language, he tends to “discount that which follows.” See Burns v. McGraw-Hill Broadcasting Co., 659 P.2d 1351, 1360 (Colo.1983).

To be sure, there is authority against giving weight to cautionary or interrogatory language. Stating that “[i]t would be destructive of the law of libel if a writer could escape liability for accusations of crime simply by using, explicitly or implicitly, the words ‘I think,’ ” Cianci, supra, 639 F.2d at 64, the Second Circuit in an opinion by Judge Friendly rejected the notion that cautionary language could immunize an otherwise defamatory statement. While Judge Friendly’s argument is not without force, it may be overstated if applied outside the type of facts before the court in Cianci — the accusation of a crime — since cautionary language is only one of several factors to be considered in assessing an allegedly defamatory statement.²⁴ Burns v. McGraw-Hill, supra, 659 P.2d at 1360 n. 4. When a statement is as “factually laden” as the accusation of a crime, which of course was the issue in Cianci, cautionary language is by and large unavailing to dilute the statement’s factual implications. However, in statements less clearly factual, cautionary language may make a more substantial difference to the reader’s understanding.

What is more, we cannot forget that the public has an interest in receiving information on issues of public importance even if the trustworthiness of the information is not absolutely certain. The First Amendment is served not only by articles and columns that purport to be definitive but by those articles that, more modestly, raise questions and prompt investigation or debate. By giving weight on the opinion side of the scale to cautionary and interrogative language, courts provide greater leeway to journalists and other writers and commentators in bringing issues of public importance to the public’s attention and scrutiny.

Besides looking to the immediate context of the allegedly defamatory statement, courts should examine, finally, the broader social context into which the statement fits. Some types of writing or speech by custom or convention signal to readers or listeners that what is being read or heard is likely to be opinion, not fact.²⁵ It is one thing to be assailed as a corrupt public official by a soapbox orator and quite another to be labelled corrupt in a research monograph detailing the causes and cures of corruption in public service. This observation reflects no novel principle. The Supreme Court has expressly recognized the importance of social context when, in finding as an expression of opinion the use of the word “traitor” as applied to an employee who crossed a picket line, the Court stated that “such exaggerated rhetoric was commonplace in labor disputes.” Letter Carriers, supra, 418 U.S. at 286, 94 S.Ct. at 2782.²⁶

Similarly, in Myers v. Boston Magazine, supra, the Massachusetts Supreme Judicial Court was even more explicit in focusing upon the reader’s understanding of a particular type of writing. Emphasizing that the “magazine’s statement partook of an ancient, lively tradition of criticizing, even lampooning, performers,” the court concluded that the statement that a sportseaster was attending a course in remedial speaking constituted privileged opinion. Id., 403 N.E.2d at 381. In the lampooning tradition, the court emphasized, it is well understood that “a critic may resort to caricature and rhetorical license.” Id. See also Pring v. Penthouse, Inc., 695 F.2d 438 (10th Cir.1982), cert. denied, - U.S.-, 103 S.Ct. 3112, 77 L.Ed.2d 1367 (1983) (finding that the imputation that the plaintiff had committed sexual acts on stage at the Miss America Pageant could not support a libel action when the writing in which the statement appeared was clearly a “fantasy”).

Courts have, in the same vein, considered the influence that other well established genres of writing will have on the average reader. Of particular relevance in this respect to the ease before us is Loeb v. Globe Newspaper Co., 489 F.Supp. 481 (D.Mass. 1980). In that case, the court observed that the article containing the alleged defamations of the publisher of the Manchester Union-Leader was situated on the Boston Globe’s, editorial page. The court held that, in the specific context or setting at issue there, the statement to the effect that Mr. Loeb never backed a winner in a presidential election was protected opinion. Plainly, the general understanding of the nature of the statements on the editorial page was relevant to the decision; if the statement had appeared on the front page where news is reported, it would most likely have been treated as a statement of fact. See also National Rifle Association v. Dayton Newspapers, Inc., 555 F.Supp. 1299 (S.D.Ohio 1983) (holding that the statement in an editorial that the National Rifle Association “happily encourages ... murders and robberies” was protected opinion). In short, it is well understood that editorial writers and commentators frequently “resort to the type of caustic bombast traditionally used in editorial writing to stimulate public reaction.” Id. at 1309. Hence, in analyzing the distinction between fact and opinion, the court will take fully into account the different social conventions or customs inherent in different types of writing.²⁷

D

After deciding that a particular statement is opinion rather than fact, courts often undertake a second mode of analysis before wrapping the statement in the mantle of the First Amendment’s opinion privilege. Relying upon the Restatement (Second) of Torts § 566, the courts consider whether the opinion implies the existence of undisclosed facts as the basis for the opinion.²⁸ If the opinion implied factual assertions, courts have held that it should not receive the benefit of First Amendment protection as an opinion.

We have no quarrel with the purpose of section 566. As we have already seen, categorizing a statement as fact or opinion is a difficult task. Many statements are not simple factual statements or simple opinions, but are statements that are “lad-den with factual content.” Cianci, supra, 639 F.2d at 63. The Restatement is obviously designed to address the problems posed by such statements. In our view, however, the tests already articulated are a sufficient aid in determining whether a statement implies the existence of undisclosed facts. The definiteness and verifiability of a statement (factors one and two) clearly bear on the ability of a statement to carry factual implications. The linguistic and social context of the statement (factors three and four) will also influence the average reader’s readiness to infer from the statement the existence of undisclosed facts. Thus, once our inquiry into whether the statement is an assertion of fact or expression of opinion has concluded, the factors, militating either in favor of or against the drawing of factual implications from any statement have already been identified. A separate inquiry into whether a statement, already classified in this painstaking way as opinion, implies allegedly defamatory facts would, in our view, be superfluous. In short, we believe that the application of the four-factor analysis set forth above, and drawn from the considerable judicial teaching on the subject, will identify those statements so “factually laden” that they should not receive the benefit of the opinion privilege.²⁹

We are fortified in this respect by section 566’s potential, on occasion, to mislead. Comments to that section may be taken to imply that only the disclosure of facts which form the basis of the statement will signal to the reader that the author is not employing an opinion to imply undisclosed facts.³⁰ To be sure, we fully agree that in some contexts statements should be submitted to the trier of fact, unless the presence of facts surrounding the statement suggests that it is merely a characterization of those facts and thus is best classified, like the characterization in Greenbelt Publishing, supra, as an opinion. For instance, in the context of a front page news story or magazine article, the presence of such facts may be the only factor that would prevent the allegedly defamatory statement from being submitted to the jury.

However, in other contexts, as we have shown above, factors besides the disclosure of facts are relevant in determining whether a statement implies factual allegations to the reasonable reader. Here, for instance, as we shall discuss more fully, that the statements challenged by Professor Oilman were found in a column on the Op-Ed page suggests, among other factors, that the statements would be understood by the reasonable reader as opinion — even in the absence of full disclosure of facts signalling to the reader that the allegedly defamatory statement was a characterization. In a word, disclosure of facts in the surrounding text is not the only signal that hard facts cannot reasonably be inferred from a statement. We think that our four-factor test takes account of the insights provided by section 566, while not rejecting the other factors that may signal that a statement is to be read as opinion.³¹

III

Now we turn to the case at hand to apply the foregoing analysis. As we have seen, Mr. Oilman alleges various instances of defamation in the Evans and Novak column. Before analyzing each such instance, we will first examine the context (the third and fourth factors in our approach) in which the alleged defamations arise. We will then assess the manner in which this context would influence the average reader in interpreting the alleged defamations as an assertion of fact or an expression of opinion.

From the earliest days of the Republic, individuals have published and circulated short, frequently sharp and biting writings on issues of social and political interest. From the pamphleteers urging revolution to abolitionists condemning the evils of slavery, American authors have sought through pamphlets and tracts both to stimulate debate and to persuade. Today among the inheritors of this lively tradition are the columnists and opinion writers whose works appear on the editorial and Op-Ed pages of the Nation’s newspapers. The column at issue here is plainly part and parcel of this tradition of social and political criticism.³²

The reasonable reader who peruses an Evans and Novak column on the editorial or Op-Ed page is fully aware that the statements found there are not “hard” news like those printed on the front page or elsewhere in the news sections of the newspaper. Readers expect that columnists will make strong statements, sometimes phrased in a polemical manner that would hardly be considered balanced or fair elsewhere in the newspaper. National Rifle Association v. Dayton Newspaper, Inc., supra, 555 F.Supp. at 1809. That proposition is inherent in the very notion of an “Op-Ed page.” Because of obvious space limitations, it is also manifest that columnists or commentators will express themselves in condensed fashion without providing what might be considered the full picture. Columnists are, after all, writing a column, not a full-length scholarly article or a book. This broad understanding of the traditional function of a column like Evans and Novak will therefore predispose the average reader to regard what is found there to be opinion.³³

A reader of this particular Evans and Novak column would also have been influenced by the column’s express purpose. The columnists laid squarely before the reader their interest in ending what they deemed a “frivolous” debate among politicians over whether Mr. Oilman’s political beliefs should bar him from becoming head of the Department of Government and Politics at the University of Maryland. Instead, the authors plainly intimated in the column’s lead paragraph that they wanted to spark a more appropriate debate within academia over whether Mr. Oilman’s purpose in teaching was to indoctrinate his students. Later in the column, they openly questioned the measure or method of Professor Oilman’s scholarship. Evans and Novak made it clear that they were not purporting to set forth definitive conclusions, but instead meant to ventilate what in their view constituted the central questions raised by Mr. Oilman’s prospective appointment. In the penultimate paragraph of the column, as we have already seen, the authors expressly posed the following “questions:”

What is the true measurement of Oilman’s scholarship? Does he intend to use the classroom for indoctrination? Will he indeed be followed by other Marxist professors? Could the department in time become closed to non-Marxists, following the tendency at several English universities?

Prominently displayed in the Evans and Novak column, therefore, is interrogatory or cautionary language that militates in favor of treating statements as opinion.

Having reviewed the context of the challenged statements, we turn next to the alleged defamation that, in our view, is most clearly opinion, namely that “[Oilman] is an outspoken proponent of political Marxism.” This kind of characterization is much akin to the characterization, “fascist,” found absolutely protected in Buckley v. Littell, supra. This is unmistakably a “loosely definable, variously interpretable statement[ ] of opinion ... made inextricably in the contest of political, social or philosophical debate ____” 539 F.2d at 895. It is obviously unverifiable. Since Mr. Oilman concedes that he is a Marxist, see Letter of B. Oilman to the Editors of The Washington Post (May 8, 1978), R. 3, the trier of fact in assessing the statement would have the dubious task of trying to distinguish “political Marxism” from “nonpolitical Marxism,” whatever that may be.

Nor is the statement that “[Mr. Oilman] is widely viewed in his profession as a political activist” a representation or assertion of fact. “Political activist” is a term, like “political Marxism,” that is hopelessly imprecise and indefinite. It is difficult to imagine, much less construct, a means of deciding the quantum of political activity justifying the label “activist.” While Mr. Oilman argues that this assertion is defamatory since it implies that he has no reputation as a scholar, we are rather skeptical of the strength of that implication, particularly in the context of this column. It does not appear the least bit evident that “scholarship” and “political activism” are generally understood to be incompatible. Moreover, Evans and Novak set out facts which signalled to the reader that this statement represents a characterization arising from the columnists' view of the facts. In the paragraph immediately following this statement, the column indicated that Mr. Oilman on no less than two occasions finished dead last among all candidates for election to the governing Council of the American Political Science Association, when he ran on the platform: “If elected ... I shall use every means at my disposal to promote the study of Marxism and Marxist approaches to politics throughout the profession.” A reasonable reader would conclude that the authors’ judgment that Mr. Oilman was “widely viewed as a political activist” was a characterization based upon the latter’s unsuccessful electoral endeavors within his profession.

Next we turn to Mr. Oilman’s complaints about the column’s quotations from and remarks about his writings, and specifically his article, “On Teaching Marxism and Building the Movement.”³⁴ We note in this respect that even before the appearance of the constitutionally based opinion privilege in Gertz, commentary on another’s writing was considered a privileged occasion at common law and therefore received the benefit of the fair comment doctrine.³⁵ When a critic is commenting about a book, the reader is on notice that the critic is engaging in interpretation, an inherently subjective enterprise, and therefore realizes that others, including the author, may utterly disagree with the critic’s interpretation.³⁶ The average reader further understands that because of limitations of space, not to mention those limitations imposed by the patience of the prospective audience, the critic as a practical matter will be able to support his opinion only by rather truncated quotations from the book or work under scrutiny. The reader is thus predisposed to view what the critic writes as opinion. In this context, courts have rightly been wary of finding statements to be defamatory, unless the statements misquote the author, put words into the author’s mouth or otherwise clearly go beyond the realm of interpretation.

Evans’ and Novak’s statements about Mr. Oilman’s article clearly do not fall into the category of misquotation or misrepresentation. First, the plaintiff complains of the following statement: “Oilman concedes that [the fact that most students have a ‘Marxist outlook’ after taking his course] ‘will be seen as an admission that the purpose of my course is to convert students to socialism.’ ” Tellingly, however, the quoted words are accurately reproduced from Mr. Oilman’s article. See “On Teaching Marxism and Building the Movement” at 5. To be sure, the quotation has not been printed in its complete context.³⁷ But that is neither here nor there; the quotation of remarks without the complete context in which the remarks appeared is entirely commonplace when summarizing a written work in a brief space. We are fully aware that this practice can be highly irritating when the context does not seem fully and fairly stated. The balm for the irritation, however, cannot be a libel suit, unless triers of fact are to sit in editorial judgment.³⁸

Professor Oilman also objects to the column’s posing the question, prompted in Evans’ and Novak’s view by Mr. Oilman’s article, of whether he intended to use the classroom for indoctrination. As we noted previously, the column in no wise affirmatively stated that Mr. Oilman was indoctrinating his students. Moreover, indoctrination is not, at least as used here in the setting of academia, a word with a well-defined meaning. To paraphrase Justice Harlan in another context, see Cohen v. California, 403 U.S. 15, 25, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284 (1971), what is indoctrination to one person is merely the vigorous exposition of ideas to another. We therefore conclude that the column’s statements concerning “indoctrination” constitute protected opinion.

Mr. Oilman also complains of the statement: “His candid writings avow his desire to use the classroom as an instrument for preparing what he calls the ‘revolution’.” This statement, unlike the column’s remarks about indoctrination, is stated without any interrogatory language to allow the reader to discount it as opinion. However, it is clear from the context that the statement represents Evans’ and Novak’s interpretation of Mr. Oilman’s writing. And, like the charge of indoctrination, this statement does not have a well-defined meaning or admit of a method of proof or disproof. What to one person is a patently improper use of the classroom for political purposes may represent to another no more than the imparting of ideas, in the faith that ideas have consequences.

Finally, we turn to the most troublesome statement in the column.

* In the third-to-last paragraph, an anonymous political science professor is quoted as saying: “Oilman has no status within the profession but is a pure and simple activist.” The District Court interpreted this remark as a statement that Mr. Oilman “lack[ed] a reputation in his field as scholar.” Memorandum Opinion at 5.

39

Certainly a scholar’s academic reputation among his peers is crucial to his or her career. Like the peripatetic philosophers of ancient Greece, modern scholars depend upon their reputation to enable them to pursue their chosen calling. We also acknowledge that at least one pre-Gertz case has held that the common-law privilege of fair comment does not extend protection to remarks which disparage one’s status among one’s peers. See Cepeda v. Cowles Magazines and Broadcasting, Inc., 328 F.2d 869 (9th Cir.1964) (holding that, inter alia, remarks that a baseball player had “doghouse status” with the San Francisco Giants’ hierarchy was not protected by fair comment).⁴⁰

We are of the view, however, that under the constitutionally based opinion privilege announced in Gertz, this quotation, under the circumstances before us, is protected. A confluence of factors leads us to this conclusion. First, as we have stated, inasmuch as the column appears on the Op-Ed page, the average reader will be influenced by the general understanding of the functions of such columns and read the remark to be opinion.⁴¹ The identical quotation in a newspaper article purporting to publish facts or in an academic publication which purported to rate status within a given discipline would, of course, be quite another matter. But here we deal with statements by well-known, nationally syndicated columnists on the Op-Ed page of a newspaper, the well-recognized home of opinion and comment. In addition, the thrust of the column, taken as a whole, is to raise questions about Mr. Oilman’s scholarship and intentions, not to state conclusively from Evans’ and Novak’s first-hand knowledge that Professor Oilman is not a scholar or that his colleagues do not regard him as such.

Moreover, the anonymous professor’s unflattering comment appears only after the columnists expressly state that Mr. Oilman is a professor at New York University, a highly respected academic institution, a fact which provides objective evidence of Mr. Oilman’s “status.” So too, the controversy itself was occasioned by Professor Oilman’s nomination by the departmental search committee as chairman of an academic department at the University of Maryland, a fact stated in the column’s opening paragraph which also plainly suggested to the average reader that Professor Oilman did in fact enjoy some considerable status in academia. Finally in this regard, the column expressly states that Professor Oilman’s imminent ascension to the departmental chairmanship at Maryland was troubling only to a clear minority of academics. Thus, the charge of “no status” in this context would plainly appear to the average reader to be “rhetorical hyperbole” within the meaning of Greenbelt, and which in turn would lead the reader to treat the statement as one of opinion.⁴²

We note especially in this respect that the anonymous academician quoted in the column goes on to say that he would not repeat his charge publicly, stating that: “[o]ur academic culture does not permit the raising of such questions.” Thus, while Mr. Oilman’s critic is asserting a proposition about Mr. Oilman, he is simultaneously implying that, in the contemporary academic environment, no evidence can publicly be adduced to support it. Whether right or wrong, this admission by the anonymous political scientist would clearly tend to make the reader treat this proposition as opinion.⁴³

But most fundamentally, we are reminded that in the accommodation of the conflicting concerns reflected in the First Amendment and the law of defamation, the deep-seated constitutional values embodied in the Bill of Rights require that we not engage, without bearing clearly in mind the context before us, in a Talmudic parsing of a single sentence or two, as if we were occupied with a philosophical enterprise or linguistic analysis. Ours is a practical task, with elemental constitutional values of freedom looming large as we go about our work. And in that undertaking, we are reminded by Gertz itself of our duty “to assure to the freedoms of speech and press that ‘breathing space’ essential to their fruitful exercise.” Gertz, supra, 418 U.S. at 342, 94 S.Ct. at 3008. For the contraction of liberty’s “breathing space” can only mean inhibition of the scope of public discussion on matters of general interest and concern. The provision of breathing space counsels strongly against straining to squeeze factual content from a single sentence in a column that is otherwise clearly opinion.⁴⁴ As the Ninth Circuit so succinctly put it, “[t]he court must consider all the words used, not merely a particular phrase or sentence.” Information Control Corp. v. Genesis One Computer Corp., supra, 611 F.2d at 784.⁴⁵

IV

The judgment of the District Court is therefore

Affirmed.

APPENDIX

The Marxist Professor’s Intentions

What is in danger of becoming a frivolous public debate over the appointment of a Marxist to head the University of Maryland’s department of politics and government has so far ignored this unspoken concern within the academic community: the avowed desire of many political activists to use higher education for indoctrination.

The proposal to name Bertell Oilman, professor at New York University, as department head has generated wrong-headed debate. Politicians who jumped in to oppose Oilman simply for his Marxist philosophy have received a justifiable going-over from defenders of academic freedom in the press and the university. Academic Prinve [sic] Valiants seem arrayed against McCarythite [sic ] know-nothings.

But neither side approaches the central question: not Oilman’s beliefs, but his intentions. His candid writings avow his desire to use the classroom as an instrument for preparing what he calls “the revolution.” Whether this is a form of indoctrination that could transform the real function of a university and transcend limits of academic freedom is a concern to academicians who are neither McCarthyite nor know-nothing.

To protect academic freedom, that question should be posed not by politicians but by professors. But professors throughout the country troubled by the nomination, clearly a minority, dare not say a word in today’s campus climate.

While Oilman is described in news accounts as a “respected Marxist scholar,” he is widely viewed in his profession as a political activist. Amid the increasingly popular Marxist movement in university life, he is distinct from philosophical Marxists. Rather, he is an outspoken proponent of “political Marxism.”

He twice sought election to the council of the American Political Science Association as a candidate of the “Caucus for a New Political Science” and finished last out of 16 candidates each time. Whether or not that represents a professional judgment by his colleagues, as some critics contend, the verdict clearly rejected his campaign pledge: “If elected ... I shall use every means at my disposal to promote the study of Marxism and Marxist approaches to politics throughout the profession.”

Oilman’s intentions become explicit in “On Teaching Marxism and Building the Movement,” his article in the Winter 1978 issue of New Political Science. Most students, he claims, conclude his course with a “Marxist outlook.” Oilman concedes that will be seen “as an admission that the purpose of my course is to convert students to socialism.”

That bothers him not at all because “a correct understanding of Marxism (as indeed of any body of scientific truths) leads automatically to its acceptance.” Non-Marxists students are defined as those “who do not yet understand Marxism.” The “classroom” is a place where the students’ “bourgeois ideology is being dismantled.” “Our prior task” before the revolution, he writes, “is to make more revolutionaries. The revolution will only occur when there are enough of us to make it.” He concludes by stressing the importance to “the movement” of “radical professors.” If approved for his new post, Oilman will have a major voice in filling a new professorship promised him. A leading prospect is fellow Marxist Alan Wolfe; he is notorious for his book “The Seamy Side of Democracy,” whose celebration of communist China extols the beneficial nature of “brainwashing.”

Oilman’s principal scholarly work, “Alienation: Marx’s Conception of Man in Capitalist Society,” is a ponderous tome in adoration of the master (Marxism “is like a magnificently rich tapestry”). Published in 1971, it does not abandon hope for the revolution forecast by Karl Marx in 1848. “The present youth rebellion,” he writes, by “helping to change the workers of tomorrow” will, along with other factors, make possible “a socialist revolution.”

Such pamphleteering is hooted at by one political scientist in a major eastern university, whose scholarship and reputation as a liberal are well known. “Oilman has no status within the profession, but is a pure and simple activist,” he said. Would he say that publicly? “No chance of it. Our academic culture does not permit the raising of such questions.”

“Such questions” would include these: What is the true measurement of Oilman’s scholarship? Does he intend to use the classroom for indoctrination? Will he indeed be followed by other Marxist professors? Could the department in time be closed to non-Marxists, following the tendency at several English universities?

Even if “such questions” cannot be raised by the faculty, they certainly should not be raised by politicians. While dissatisfaction with pragmatism by many liberal professors has renewed interest in the comprehensive dogma of the Marxists, there is little tolerance for confronting the value of that dogma. Here are the makings of a crisis that, to protect its integrity and true academic freedom, academia itself must resolve.

1 . The complaint, while not asserting that any quotations in the article were inaccurate, alleged that the column "is totally false and defamatory ... in that it denies his reputation as a scholar and portrays him as a ‘political activist’ who seeks to use the classroom, not for purposes of teaching but rather for ulterior purposes.” Complaint f 6. In addition, the complaint alleged that the following charge, among others, was falsely leveled: “Oilman concedes that the purpose of the course he teaches at New York University is to convert students to socialism.” Id. 1f7(d).

2 . With an eye on Restatement (Second) of Torts § 566, the District Court expressly held that the expressions of opinion here imply no “underlying false or defamatory statements of fact.” Specifically, the court observed:

No such implication is apparent. Rather, Defendants have quoted Plaintiffs writings and speeches, and have cited his campaign for election to the council of the American Political Science Association as “proof" that their allegations are grounded in fact. There is no evidence that any of the data supporting Evan's [sic] and Novak's conclusions is false or defamatory. Nor is there any reason to assume that Defendants relied on any other evidence in support of their contentions.

Id.

3 . The Complete Jefferson 385 (S. Padover ed. 1943), quoted in Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 n. 8, 94 S.Ct. 2997, 3007 n. 8, 41 L.Ed.2d 789 (1974).

4 . See Afro-American Pub. Co. v. Jaffe, 366 F.2d 649, 658 (D.C.Cir.1966) (stating that the law of libel protects the interest in reputation which is "inherent in the essential dignity and worth of every human being").

5 . To establish the defense of fair comment, the defendant had to show (1) that the published criticism was one of legitimate public interest, (2) that the criticism was based on facts either stated or otherwise known to the reader, (3) that the criticism represented the actual opinion of the critic, and (4) that the criticism was not made solely for the purpose of causing harm to the person criticized. See Restatement (Second) of Torts § 606 (1938). See also Carman, Hutchinson v. Proxmire and the Neglected Fair Comment Defense: An Alternative to "Actual Malice, ” 30 DePaul L.Rev. 1, 13 (1980).

6 . Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964)). The statement is clearly dicta. As we discuss below, the actual holding of Gertz was that in order to prevail in a libel action, private figures did not have to show that a false statement was made with actual malice. Despite its status as dicta, a majority of federal circuit courts, including this one, have accepted the statement as controlling law. See McBride v. Merrell Dow and Pharmaceuticals, Inc., 717 F.2d 1460, 1464 & n. 7 (D.C.Cir.1983); Bose Corp. v. Consumers Union, Inc., 692 F.2d 189, 192-94 (1st Cir.1982), affirmed on other grounds, - U.S.-, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984); Hammerhead Enterprises, Inc. v. Brezenoff, 707 F.2d 33, 40 (2d Cir.), cert. denied, - U.S.-, 104 S.Ct. 237, 78 L.Ed.2d 228 (1983); Avins v. White, 627 F.2d 637, 642 (3d Cir.), cert. denied, 449 U.S. 982, 101 S.Ct. 398, 66 L.Ed.2d 244 (1980); Church of Scientology v. Cazares, 638 F.2d 1272, 1286 (5th Cir.1981); Orr v. Argus-Press Co., 586 F.2d 1108, 1114 (6th Cir.), cert. denied, 440 U.S. 960, 99 S.Ct. 1502, 59 L.Ed.2d 773 (1979); Lewis v. Time, Inc., 710 F.2d 549, 552-53 (9th Cir.1983); Rinsley v. Brandt, 700 F.2d 1304, 1307 (10th Cir.1983). See also National Foundation for Cancer Research, Inc. v. Council of Better Business Bureaus, Inc., 705 F.2d 98 (4th Cir.), cert. denied, - U.S.-, 104 S.Ct. 108, 78 L.Ed.2d 110 (1983) (finding that statement that charity was not "spending a reasonable percentage of total income on program services” was constitutionally protected opinion on the authority of Greenbelt Cooperative Publishing Assoc. v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970)).

The Gertz dictum was recently quoted with approval by the Supreme Court. See Bose Corp. v. Consumers Union, Inc., - U.S. -, 104 S.Ct. 1949, 1961, 80 L.Ed.2d 502 (1984).

7 . To be sure, pre-Gertz straws in the wind suggested that the qualified privilege of fair comment had constitutional dimensions. New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), was, of course, the seminal case in which the Court first imposed constitutional constraints on state libel laws by preventing public officials from securing libel verdicts unless they could prove by clear and convincing evidence that the challenged statement was made with knowledge of its falsity or in reckless disregard of its truth or falsity. But the Court also intimated in a footnote that the common-law doctrine of fair comment was necessitated by the First Amendment, as applicable to the States by the Fourteenth Amendment. Id., 376 U.S. at 292 n. 30, 84 S.Ct. at 732 n. 30. However, in a case decided only the Term after New York Times v. Sullivan, the Supreme Court seemed to regard as an open question the relationship between the doctrine of fair comment and constitutional imperatives. Garrison v. Louisiana, 379 U.S. 64, 76 n. 10, 85 S.Ct. 209, 217 n. 10, 13 L.Ed.2d 125 (1964). Gertz was thus the first decision by the Court to suggest an absolute, constitutionally based protection for opinions.

8 . Although Mr. Oilman’s claim arises under the District of Columbia common law of libel, see McBride v. Merrell Dow, supra, 717 F.2d at 1461, the issue whether the allegedly libelous statements are protected opinion is to be decided as a matter of federal constitutional law. See, e.g., Lewis v. Time, Inc., supra, 710 F.2d at 552-53.

9 . In Gertz, many of the statements alleged to be defamatory were clearly factual. For instance, the article at issue stated that Gertz had a criminal record and that Gertz had been a member of a particular radical organization.

10 . The importance of the distinction between public and private figures is, of course, that in order to prevail, public figures must prove by clear and convincing evidence that the allegedly defamatory statements were made with knowledge of the statement's falsity or in reckless disregard of its truth or falsity, whereas private figures are required to show only by a preponderance of the evidence that the statements were negligently made. Compare Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), with Gertz, supra.

11 . Appellant also relies upon a third Supreme Court case, Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979), as authority in support of his argument that the statements here are not privileged opinion. Hutchinson, however, was not a case purporting to shed light on the dichotomy between fact and opinion. In Hutchinson, the Court ruled that a press release by Senator William Proxmire of Wisconsin describing a research scientist’s work in unflattering terms and awarding the scientist the "Golden Fleece” award was not immunized by the Speech or Debate Clause. Moreover, the Court determined that the research scientist was not a public figure. The Court of Appeals had not definitively ruled on whether various statements in the press release were protected by fair comment or the opinion privilege, although the court did suggest that the statement that Hutchinson's research was "perhaps duplicative” and a statement that implied that Hutchinson had made a personal fortune from his research were probably not protected by fair comment. Hutchinson v. Proxmire, 579 F.2d 1027, 1035 (7th Cir.1978). Nothing in either the Supreme Court’s opinion or the Seventh Circuit’s opinion, however, suggests that Senator Proxmire’s statements that the research was "nonsense" and reflected "transparent worthlessness” would not have been given the protection of the opinion privilege, if that issue had been reached.

12 . The Information Control court stated that, in determining whether a statement was opinion or fact, three factors should be analyzed. First, the court stated that "it is established that words are not defamatory unless they are understood in a defamatory sense ____ Thus, the words alone are not determinative; the facts surrounding the publication must also be considered." 611 F.2d at 783-84. Second, the court stated that "even apparent statements of fact may assume the character of statements of opinion and thus be privileged when made in public debate, heated labor dispute, or other circumstances in which an ‘audience may anticipate efforts by the parties to persuade others to their positions by use of epithets, fiery rhetoric or hyperbole____ 611 F.2d at 784 (quoting Gregory v. McDonnell Douglas Corp., 17 Cal.3d 596, 131 Cal.Rptr. 641, 644, 552 P.2d 425, 428 (1976)). Finally, the court noted the importance of the language itself: "Where the language of the statements is ‘cautiously phrased in terms of apparency’ or is of a kind typically generated in a spirited legal dispute in which judgment, loyalties and subjective motives of the parties are reciprocally attacked and defended in the media and other public forums, the statement is less likely to be understood as a statement of fact rather than as a statement of opinion.” 611 F.2d at 784 (quoting Gregory v. McDonnell Douglas, supra, 17 Cal.3d 596, 131 Cal.Rptr. at 645, 552 P.2d at 429).

The Information Control test has been adopted in at least three States. See Cole v. Westinghouse Broadcasting Co., 386 Mass. 303, 435 N.E.2d 1021, 1025, cert. denied, 459 U.S. 1037, 103 S.Ct. 449, 74 L.Ed.2d 603 (1982); Burns v. McGraw-Hill Broadcasting Co., 659 P.2d 1351, 1360 (Colo.1983); From v. Tallahassee Democrat, Inc., 400 So.2d 52, 57 (Fla.Dist.Ct. App.1981), petition denied, 412 So.2d 465 (Fla. 1982).

13 . For an eloquent statement of the protean nature of language, see Justice Holmes’ much quoted statement in Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed. 372 (1918): "A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.”

14 . One commentator labels such statements "deductive opinions.” See Keeton, Defamation and Freedom of the Press, 54 Tex.L.Rev. 1221, 1250-51 (1976) (contrasting evaluative opinions expressing a value judgment and deductive opinions purporting to convey information). Restatement (Second) of Torts § 566 also attempts to categorize opinions which imply factual allegations. For a discussion of the Restatement approach see infra II D.

15 . Restatement (Second) of Torts § 566, example 3. "A writes to B about his neighbor C: ‘I think he must be an alcoholic.’ ”

16 . In determining whether a statement is fact or opinion, a court is, of course, trying to assess the average reader’s view of the statement rather than that of either the most skeptical or most credulous reader. A few courts, however, have gone beyond this obvious proposition and stated that the average reader’s view will constitute the test of the distinction between fact and opinion. See, e.g., Mashburn v. Collin, 355 So.2d 879, 885 (La.1977). This formulation of the test, however, merely restates the problem, see Note, Fact and Opinion after Gertz v. Robert Welch, Inc.: The Evolution of a Privilege, 34 Rutgers L.Rev. 81, 105 (1981), and does not provide the standards necessary to avoid the untoward effects of unpredictable judicial decisions as to what constitutes fact and what constitutes opinion. See supra II B.

17 . We do not, of course, suggest that the four-factor analysis is to be undertaken in a rigid lock-step fashion. Thus, as will become evident below, a logical starting point in applying the fact-opinion analysis may be the broad social context or setting within which the defamatory statement appears (factor "four") and the language surrounding the challenged statements (factor “three”).

18 . Our review of the definiteness of the allegedly defamatory statement should not be confused with the rather curious doctrine of "innocent construction.” This doctrine prevents a statement from being found defamatory as a matter of law, if it has two or more meanings, one of which is nondefamatory. The doctrine is accepted only in Illinois. See John v. Tribune Co., 24 Ill.2d 437, 181 N.E.2d 105, 108, cert. denied, 371 U.S. 877, 83 S.Ct. 148, 9 L.Ed.2d 114 (1962). See generally Comment, The Illinois Doctrine of Innocent Construction: A Minority of One, 30 U.Chi.L.Rev. 524 (1963). See also McBride v. Merrell Dow, supra, 717 F.2d at 1465.

When we review a statement and find that it is indefinite in this context, we are not declaring that the statement has an innocent meaning, but are instead holding that the statement is so ambiguous that the average reader would not fairly infer any specific factual content from it. Thus, the statement should be classified as protected opinion.

19 . The court did hold, however, that the following statement was not constitutionally protected: "Like Westbrook Pegler, who lied day after day in his column about Quentin Reynolds and goaded him into a lawsuit, Buckley could be taken to court by any one of several people who had enough money to hire competent legal counsel and nothing else to do.” Buckley v. Littell, supra, 539 F.2d at 895. The court treated this statement as implying that Buckley was a libeler and found that this proposition was capable of being proven false. Id. at 896. The charge that one has committed libel, like the charge that one has committed a crime, is obviously verifiable through the submission of evidence to the trier of fact. See infra II C 2.

20 . Of course, we do not hold that the term "fascist” cannot be a statement of fact in any context. The issue is obviously not before us. But as an illustration of the application of our analysis, we observe that if the term were applied in a history of Italy between the World Wars and from the context it was clear that the application of the term was to adherents of Mussolini, the statement would be defamatory. See Buckley v. Littell, supra, 539 F.2d at 894 n. 11. Courts, however, must be sensitive to the fact that some words that began their existence with a definite meaning have simply become epithets.

21 . The imprecision of the characterization of the reporting was not the sole factor on which Cole relied. Employing the Information Control test, see supra note 12, the court also took account of the general context in which the statement appeared. Id. 435 N.E.2d at 1025.

22 . See generally 1 F. Harper & F. James, Torts § 5.28 p. 458 n. 11 (defining a factual statement as one that relates to an event or state of affairs that existed in the past or exists at present and is capable of being known).

23 . See also Rinsley v. Brandt, 700 F.2d 1304 (10th Cir.1983). In Rinsley, an author levied harsh criticism at one doctor’s method of treatment. The author stated that the doctor had "a theory to which [he was] willing to sacrifice a life.” Id. at 1309. In a second passage, the author put the question "What does it take to put a stop to such a man [the doctor]? How many more children must die?” Id. The doctor claimed that the statement purported to convey information that he had purposely killed a patient and that other patients were in imminent danger of being purposely killed. The court rejected the claim, stating that the author’s actual descriptions of the doctor’s method of treatment and the circumstances of a patient's death, made it clear that these statements constituted the author’s opinion. Id.

24 . See Note, Fact and Opinion after Gertz v. Robert Welch, Inc.: The Evolution of a Privilege, supra, 34 Rutgers L.Rev. at 107-108.

25 . Cf. Restatement (Second) of Torts § 566, comment e (stating that "there are some statements that are in form statements of opinion, or even of fact, which cannot reasonably be understood to be meant literally and seriously and are obviously mere vituperation and abuse"). The Restatement does not, however, comment on the power of other genres of writing or speaking to influence the audience’s view of a statement.

26 . See also Gregory v. McDonnell Douglas Corp., 17 Cal.3d 596, 131 Cal.Rptr. 641, 644, 552 P.2d 425, 428 (1979) (finding that comments made in the context of a labor dispute were likely to be viewed by the audience as opinion).

27 . See also National Ass’n of Gov’t Employees v. Central Broadcasting Corp., 379 Mass. 220, 396 N.E.2d 996, 1001 (1979), cert. denied, 346 U.S. 935, 100 S.Ct. 2152, 64 L.Ed.2d 788 (1980) (holding that the charge of communism levied against a union was opinion because the audience heard the charge on a radio call-in talk show called "Sound Off" and would likely have regarded it as "pejorative rhetoric”).

28 . The Restatement (Second) of Torts § 566 provides:

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.

This section lies at the basis of Chief Judge Robinson’s dissent. It is our difficulty with the Restatement position, as expressed throughout this opinion, that leads to our disagreement with his position.

29 . In support of the proposition that a separate § 566 inquiry is not required, we note that the reporter for the Restatement makes it clear that the purpose of this portion of the Restatement is solely to aid the courts in deciding what is "mere opinion” under Gertz. See Wade, The Communicative Torts and the First Amendment, 48 Miss.L.J. 671, 695 (1980). Moreover, the paucity of cases that hold (1) that a statement is opinion but (2) that the opinion implies facts, suggests that the § 566 inquiry is not distinct from the general evaluation of whether a statement constitutes fact or opinion. Many courts do not attempt to keep these inquiries distinct, see, e.g., Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 448 A.2d 1317 (1982). Indeed, some courts now explicitly employ the Information Control test, established to distinguish fact from opinion, see supra note 12, to determine whether an opinion implies factual allegations under § 566. See Burns v. McGraw-Hill Broadcasting Co., supra, 659 A.2d at 1360.

30 . See Restatement (Second) of Torts § 566, comment c(4) (stating that "[i]f the defendant expresses a derogatory opinion without disclosing the facts on which it is based, he is subject to liability, if the comment creates the reasonable inference that the opinion is justified by the existence of unexpressed defamatory facts").

31 . Judge Bork would reach the same result in this case by employing a methodology which he calls a "totality of the circumstances” approach, informed by First Amendment values. Suffice it to say that many, although not all, of the considerations that guide him are in fact taken into account by the methodological approach agreed to by the majority of the members of the court.

We also note that application of our four-factor analysis will arrive at the same result as that reached in the section 566 examples. For instance, example 3 of section 566 states: "A writes to B about his neighbor C: ‘I think he must be an alcoholic.”’ Section 566 indicates that this remark should be submitted to the jury as a statement that may imply that "A knew undisclosed facts that would justify his opinion.”

Under our analysis, we would first examine the definiteness-ambiguity of the term "alcoholic.” It is clear that, even outside of medical usage, this term has a fairly well-defined meaning. Moving to the verifiability branch of our analysis, the statement would appear to be eminently verifiable. Whether A is an "alcoholic,” as the term is commonly understood, is capable of being proven true or false through the submission to a trier of fact of evidence of A’s actions and conditions at various times in A’s life, coupled presumably with expert testimony. Examining the linguistic context, we would note that the prefatory words “I think” qualify as language of "apparency,” which in some contexts favors treating the statement that follows as an expression of opinion. Here, however, the statement, as in Cianci, supra, is so well defined and verifiable that the language of apparency would be given relatively little weight on the opinion side of the scale. See supra II C 3. Finally, the social context does not militate in favor of treating the statement as one of opinion because a neighbor would generally be thought likely to be in a position to report facts, namely that he has been in a position to make first-hand observations of A’s conduct and demeanor. Thus, the statement provided by example 3 of section 566 would, under this approach, appear to be factual in nature and thus appropriate to treat as fact and to submit to the jury-

32 . There can be no doubt that the Evans and Novak column appeared on the editorial or OpEd pages of newspapers. The columnists represented that their article appeared in the "editorial section of their clients’ newspapers,” see Memorandum of Points and Authorities in Support of Defendants’ Motion for Judgment on the Pleadings or Summary Judgment, at 1; Mr. Oilman never disputed this assertion. Moreover, the proposition that syndicated columns on political or social issues appear on the editorial or Op-Ed pages of newspapers is a proposition so generally known that judicial notice can appropriately be taken of it. See Fed.R.Evid. 201(b).

33 . Of course, we do not hold that any statement on an editorial or Op-Ed page is constitutionally privileged opinion. While such a rule would have the advantage of simplicity and clarity, it could too readily become a license to libel. Cf. Cianci v. New Times Publishing Co., supra, 639 F.2d at 64. Even when situated on the editorial page the statement "Mr. Jones had ten drinks at his office party and sideswiped two vehicles on his way home” would obviously be construed as a factual statement.

34 . Political Science, Winter 1978 at 5. R. 3. The column also commented upon Professor Ollman’s book, Alienation: Marx's Conception of Man in a Capitalist Society (1971), calling the volume "ponderous” and dismissing it as “pamphleteering.” These comments are obviously paradigms of opinion: Evans and Novak are merely making clear their dislike of the book's style and substance.

35 . Fair comment regarding both books and articles has long been recognized. See Berg v. Printers' Ink. Publishing Co., 54 F.Supp. 795, 797 (S.D.N.Y.1943), aff'd, 141 F.2d 1022 (2d Cir. 1944) (stating that when an author publishes a book “he was bound to expect, with equal equanimity, praise or blame directed at the work itself’’); Potts v. Dies, 132 F.2d 734 (D.C.Cir. 1942), cert. denied, 319 U.S. 762, 63 S.Ct. 1316, 87 L.Ed. 1713 (1943). See generally Note, Fair Comment, 62 Harv.L.Rev. 1207 (1949). To be sure, the fair comment privilege for book criticism was usually occasioned by literary or aesthetic criticism, but we do not believe the result should be different when the critic of the work engages in political or social criticism.

36 . Indeed, Mr. Oilman seems to accept the proposition that several interpretations of his writing are possible. See Letter of B. Oilman to the Editors of The Washington Post (May 8, 1978) (suggesting that "the real test of what a teacher does in class is not what he says about what he does (for that allows various interpretations) but what he actually does in class”). R. 3.

37 . After the words which are quoted in the Evans' and Novak’s columns, Professor Oilman’s article continues:

I can only answer that in my view — a view which denies the fact/value distinction — a correct understanding of Marxism (as indeed of any body of scientific truths) leads automatically to its acceptance. I hasten to add that this is not reflected in my grading practices: non-Marxist students (i.e., students who do not yet understand Marxism) do at least as well as the rest of the class given by bourgeois professors, [sic ] Furthermore, I do not consider that I introduce more "politics" into my course than do other social science professors, or that I am more interested than they are in convincing students of the correctness of my interpretations.

38 . We note that in this case Mr. Oilman took advantage of another recourse. The Washington Post published Mr. Oilman’s letter to set his statements in his article in a fuller context. See Letter of B. Oilman to the Editors of The Washington Post (May 8, 1978). R. 3.

Of course, at some point the deletion or omission of proper context can be so egregious as to amount to misquotation. Omitting a negative word from a sentence with the result that that sentence has a meaning opposite to that which the author intended is a rather clear cut example of a misquotation.

The analysis in this portion of the opinion is concurred in only by Circuit Judges Tamm and Wilkey and Senior Circuit Judge MacKinnon.

39 . Appellees do not claim that this quotation of an anonymous source is protected by the "neutral reportage” doctrine developed by the Second Circuit. That doctrine protects “the accurate and dispassionate reporting of ... charges, regardless of the reporter’s private opinion regarding their validity.” Edwards v. National Audubon Society, Inc., 556 F.2d 113, 120 (2d Cir.) (reversing a libel judgment against a newspaper which reported the National Audubon Society’s charges that certain scientists were “paid liars”), cert. denied sub nom. Edwards v. New York Times Co., 434 U.S. 1002, 98 S.Ct. 647, 54 L.Ed.2d 498 (1977). The scope of the neutral reportage doctrine has not been defined, see Cianci v. New Times Publishing Co., supra, 639 F.2d at 67, and it is uncertain whether the doctrine would extend to protect anonymous quotes in a column of opinion. Since neither the Supreme Court nor this circuit has adopted the neutral reportage doctrine, we need not decide that issue here.

40 . But see the dissenting opinion of Judge Chambers in that case arguing that the statement about Orlando Cepeda’s status was "a lot of piffle” and cannot support a libel action. 325 F.2d at 873.

41 . Consistent with the point that an Op-Ed piece is in itself a signal to the reader that what is being read is opinion, the Supreme Court has very recently had occasion to remind us that the expression of editorial opinion “lies at the heart of First Amendment protection." FCC v. League of Women Voters, - U.S.-, 104 S.Ct. 3106, 3118, 82 L.Ed.2d 278 (1984). Speaking for the Court, Justice Brennan emphasized the editorial’s crucial role in "arousing" citizens to reflect on the important issues of the day and stated that "[pjreserving the free expression of editorial opinion ... is part and parcel of ‘our profund national commitment ... that debate on public issues should be uninhibited, robust, and wide-open.' ” Id. (quoting New York Times v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 666 (1964)).

42 . While generally agreeing with the methodological approach employed here, the dissent goes to some considerable length to argue that the statement is verifiable, such as by conducting a poll of all members of the American Political Science Association. That, however, is most assuredly an extraordinarily burdensome and utterly impracticable procedure in a field as huge and disparate as political science. Indeed, the fact that the anonymous statement did not purport to be linked to any such poll or other systematic inquiry into Mr. Oilman’s reputation in the political science community suggests that the statement was an expression of opinion, not of fact. But at all events, the end result of any such poll is cloudy, as Judge Bork maintains and the dissent commendably admits. Indeed, the dissent suggests a rather limited office for this sort of inquiry, arguing that a poll or expert testimony "could surely establish that Oilman enjoys some reputation as an academic scholar____" Dissent at 4 (emphasis in original).

If that is what a poll could show, there is no need either to sacrifice First Amendment values or go to all the expense and trouble of canvassing the views of thousands of political scientists from Maine to California. Indeed, the irony of the dissent’s approach is that the Evans and Novak column made it crystal clear to the reasonable reader that Oilman does enjoy "some reputation” in the political science community. As we have already seen, the article states at the very outset that Mr. Oilman is a professor at a distinguished university and has been recommended by a Faculty Search Committee to chair the department of a large and well-known state university. It is, of course, those passing on Oilman’s credentials to step into a prestigious post at a major university who would have a pressing and important need to examine his professionalism and scholarship, as opposed to the armchair opinion of a solitary anonymous professor responding off the cuff to a columnist’s inquiry. Those clearly stated indicia of professional success and standing overwhelmingly suggest to the reasonable reader that the statement is one of rhetorical hyperbole. See also concurring opinion of Bork, J., at 33-37.

The dissent refuses to accept the real-world, common-sense conclusion that the statement was, in context, rhetorical hyperbole, concluding that the article “could as well be understood to portray Oilman’s prominence as due solely to his vociferousness____” Dissent at 5 (emphasis added). Surely this contention is itself utterly hyberbolic. An understanding derived from the article, fairly read as a whole, that Mr. Oilman is a mere vociferous organ of political Marxism and nothing more is at the least, entirely fanciful. In light of the well-known peer review process by which academic appointment and tenure decisions are made, the reasonable reader would most reasonably conclude that Oilman, whatever his politics, enjoyed a goodly measure of repute among scholars highly familiar with his work. It suspends belief to suggest that New York University and the University of Maryland have taken or proposed to take into the community of scholarship one whose reputation was grounded solely upon his vociferousness. The reasonable reader would, to the contrary, regard the anonymous professor’s statement as an extravagant way of saying that he thought Mr. Oilman’s work was without merit and that his assessment was not unique.

43 . Our use of the anonymous academic’s concession (that no facts can be publicly adduced as evidence for his claim) as a factor favoring the treatment of his criticism as opinion is similar to the Third Circuit’s approach in Avins v. White, supra, 627 F.2d at 642. Emphasizing that a statement critical of the academic strength of a school itself admitted that the criticism was "intangible,” the court held that the statement was opinion. See supra II C 1.

44 . We are also reminded, as this court speaking through Judge Bork observed quite recently, that "[ljibel suits, if not carefully handled, can threaten journalistic independence.” McBride v. Merrell Dow, supra, 717 F.2d at 1460.

45 . We emphasize, however, that we are by no means holding that in other circumstances a charge that a person lacks status within his or her profession could not solidly provide the basis for a defamation action. We conclude only that the statement here is opinion under the totality of circumstances in which it appeared and in light of our analysis under the factors previously set forth.