Bussie v. Lowenthal

535 So. 2d 378, 1988 WL 131739
Supreme Court of Louisiana·Decided December 12, 1988·No. 88-CC-0990·Published·Cited by 42 cases

Opinion

535 So.2d 378 (1988)

Victor BUSSIE
v.
Margaret LOWENTHAL and the Boeing Company.

No. 88-CC-0990.

Supreme Court of Louisiana.

December 12, 1988.

*379 David Frohn, William J. Mize, Carmouche, Gray & Hoffman, Lake Charles, for applicant.

Benjamin Mount, Scofield, Bergstedt, Gerard, Mount Vernon, Lake Charles, John Avant, Avant & Falcon, Baton Rouge, for respondent.

CALOGERO, Justice.

This defamation action arises from remarks allegedly made by an employee of the Boeing Company, and repeated by a candidate for political office, regarding Victor Bussie, President of the Louisiana AFL-CIO. Margaret Lowenthal, while campaigning for a seat in the United States Congress on October 15, 1985, told a luncheon audience in Lake Charles that she had learned that the Boeing Company had recently decided to locate an aircraft manufacturing plant in Mississippi rather than Louisiana. Ms. Lowenthal also stated that a Boeing official had told her that:

"As long as you have a man named Victor Bussie sitting in Baton Rouge, calling the shots for labor, we don't need to be in your state."

Ms. Lowenthal's speech was covered by a local television station, and her remarks about Mr. Bussie were aired on the evening news. Mr. Bussie thereafter filed a defamation action against Lowenthal and Boeing, alleging that the statement (quoted above) was false and had subjected him to ridicule, contempt and distrust among the general public.

After discovery was conducted, Boeing moved for summary judgment, alleging that there was insufficient evidence to establish *380 that one of its employees actually made the statement, as asserted by Lowenthal.[1] Boeing also sought summary judgment on the ground that even if one of its employees made the statement, Mr. Bussie had presented no evidence that the employee acted with "actual malice."[2]

The trial court denied Boeing's motion for summary judgment, and the court of appeal denied that defendant's application for a supervisory writ. This Court then granted a writ of review and remanded the case to the court of appeal for argument, briefing and opinion.[3] On remand the court of appeal issued an opinion affirming the trial court's denial of summary judgment for Boeing.[4] Again we granted a writ of review.[5]

We now reverse the lower courts and grant the summary judgment sought by Boeing, finding it unnecessary to address the issue which the court of appeal found dispositive (whether the statement was in fact made by a Boeing employee) or the equally essential question of whether the statement was made with actual malice. As explained hereinafter, the statement at issue was not an assertion of fact. Instead, it was a statement of opinion which did not give rise to a defamatory factual inference. Therefore, the statement is protected by the First Amendment to the United States Constitution.

In New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the United States Supreme Court held that the First Amendment limits the right of a public figure to recover damages for defamation. It is not enough for the public figure plaintiff to prove that the statement sued upon is false. Because the First Amendment protects honest misstatements of fact that are made regarding public figures, such plaintiffs must also prove that the statement was made with "actual malice." In this context, actual malice means that the defendant made the statement with knowledge that it was false, or with reckless disregard for the truth. 376 U.S. at 254, 84 S.Ct. at 710.

New York Times involved false assertions of fact. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339, 94 S.Ct. 2997, 3006, 41 L.Ed.2d 789 (1974), a case which refined the New York Times standard in certain respects not pertinent here, strongly implied that the First Amendment also protects assertions of opinion. The United States Supreme Court stated in Gertz that:

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.

418 U.S. at 339, 94 S.Ct. at 3007.

In Mashburn v. Collin, 355 So.2d 879 (La.1977), this Court considered the issue of whether the First Amendment protects *381 assertions of opinion. Relying heavily on New York Times and Gertz, we concluded "that the First Amendment freedoms ... afford, at the very least, a defense against defamation actions for expressions of opinion...." 355 So.2d at 885.

As we noted in Mashburn, the distinction between a statement of fact and an assertion of opinion is "somewhat difficult to state in abstract terms." Id. at 885. The reason for the conceptual difficulty is that many, if not most expressions of opinion are accompanied by express or implied statements of fact. Id. at 885-86.

A pure statement of opinion, which is based totally on the speaker's subjective view and which does not expressly state or imply the existence of underlying facts, usually will not be actionable in defamation That is because falsity is an indispensable element of any defamation claim, see Cangelosi v. Schwegmann Bros., 390 So.2d 196, 198 (La.1980), and a purely subjective statement can be neither true nor false. Of course, statements of opinion are usually not made in a vacuum, without an express or implied reference to underlying facts. Even if no facts are expressly stated, the opinion may give rise to an unspoken inference that certain facts are true. Mashburn, 355 So. 2d at 885-86. For example, if a person states that "In my opinion, Mr. Smith is a thief," the inference is that the speaker is aware of facts which support his opinion. Such a statement, though couched in terms of an opinion, could certainly give rise to a defamation action.

We held in Mashburn that even if an opinion gives rise to false factual inferences, the defendant will be liable only if the statement was made with "knowing or reckless falsity." Id. at 885. Of course, if the opinion does not involve an express or implied assertion of fact there can be no liability, because without an assertion of fact there can be no falsity. And even if the opinion creates an inference that certain facts exist, the factual assertion must be defamatory in order to be actionable, as defamatory words are another essential element of any defamation claim. Freeman v. Cooper, 414 So.2d 355 (La.1982).

The determination of whether a statement is an assertion of fact or a mere expression of opinion should be made according to the facts of each particular case. In Mashburn, we noted that "the crucial difference between statement of fact and opinion depends upon whether ordinary persons hearing or reading the matter complained of would be likely to understand it as an expression of the speaker's or writer's opinion, or as a statement of existing fact." 355 So.2d at 885. If it can be determined from the application of this test that the statement was an expression of opinion, then the defamation action should fail, unless the opinion gives rise to a false and defamatory factual inference which was made with actual malice.[6]

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