Editorial on transportation company ruled ‘opinion’

Court also upholds tough standard for proving ‘defamation by implication’

From the Fall 2000 issue of The News Media & The Law, page 17.

Frank Wilner, a government economist who frequently writes on transportation issues, did not defame Guilford Transportation in a column of The Journal of Commerce describing the company founder’s eccentric nature and the company’s labor struggles, the District of Columbia Court of Appeals ruled on Oct. 12. The court ruled that the allegedly defamatory implications asserted by Guilford were “well beyond” the actual published words.

The New England railway company had sued Wilner, who at the time was the chief of staff to one of the commissioners of the federal agency regulating railways, over a column in June 1997 entitled “Guilford’s Tempestuous Past.” Wilner wrote the column when Guilford was making a bid to acquire the rights to Amtrak lines in the Northeast.

The column described company founders as reclusive and eccentric and pointed out that Guilford had labor

problems in its past. Guilford complained the column accused it of being antagonistic to labor and implicitly accused it of violating the Railway Labor Act. The company claimed that many of the allegations constituted “defamation by implication” — that is, the statements were not themselves defamatory, but Wilner’s choice of words and tone carried implications suggesting it had violated the railway act.

The appellate court agreed with the trial court that the case should be dismissed before trial in order to promote the free flow of information on matters of public interest. “The threat of prolonged and expensive litigation has a real potential for chilling journalistic criticism and comment on public figures and public affairs,” the court wrote.

Guilford alleged that Wilner defamed the company by implicitly stating it had failed to settle disputes as required under the Railway Labor Act. The court reminded Guilford that Wilner never mentioned the RLA in his column at all. The court also pointed out that Wilner’s column included facts favorable to Guilford in relation to its labor problems.

Ultimately, the court demanded a higher standard for claims of defamation by implication. “Because the Constitution provides a sanctuary for truth, a libel-by-implication plaintiff must make an especially rigorous showing where the expressed facts are literally true,” the court wrote. “The language must not only be reasonably read to impart the false innuendo, but it must also affirmatively suggest that the author intends or endorses the inference.”

The court disagreed with a labor relations expert who claimed the defamatory implications of the column were plain. The plaintiff’s claims were too remote to support a finding of defamation by implication: “The kind of implications the plaintiffs attribute to the column go well beyond the sense of the published words.”

The court ruled that Wilner’s statements about Guilford’s labor problems were analogous to statements made in labor disputes, and were properly categorized as opinions. Opinions are not actionable unless they contain a provably false factual element. The court said Wilner’s chosen words were opinions on political views and did not attack character.

Without such a rule protecting opinion, the court said, “authors of every sort would be forced to provide only dry, colorless descriptions of facts, bereft of analysis or insight. There would be little difference between the editorial page and the front page, between commentary and reporting, and the robust debate among people with different viewpoints that is a vital part of our democracy would surely be hampered.”

The court also ruled that Wilner’s comments about Guilford founders Timothy Mellon and David Fink did not sink to the level of “odious, infamous, or ridiculous,” the required standard for a statement to be defamatory.

“In a society which regards freedom of the press as a core value, a newspaper columnist must surely have the right to question the qualifications of the would-be privatizers, as well as their motivations and business acumen, without fear of retaliatory litigation,” the court wrote.