Comments about attorney’s representation found to be opinion

Comments about attorney’s representation found to be opinion

• An author’s comments about an attorney’s involvement in litigation over the movie “Natural Born Killers” was opinion and not defamatory, according to a state appellate court

In late September, an intermediate appellate court in Los Angeles ruled that an author’s disparaging comments regarding an attorney’s representation of a movie director were expressions of opinion, and therefore did not constitute defamation.

Attorney Thomas Ferlauto sued author Jane Hamsher because of unflattering comments in Hamsher’s 1997 book, “Killer Instinct,” about the making of the movie “Natural Born Killers.” The comments included the phrases “stupid,” “laughed at,” “a joke,” and “frivolous” in reference to Ferlauto’s representation of Rand Vossler, who originally was hired to be the director of the movie but later sued Hamsher and co-producer Don Murphy for fraud after he was asked to step aside.

The court applied a “totality of circumstances” test and found that Hamsher’s comments were not defamatory. According to the court, “Regardless whether Hamsher is retelling what occurred five years ago or five days ago, the overall context of the book, the subject matter, and the author’s literary style alert the readers that they are reading the subjective views of a partisan participant to the events described.”

Additionally, Hamsher used such phrases as “Kmart Johnnie Cochran,” “creepaziod attorney,” and “loser wannabe lawyer” in her book. The court found these phrases were “merely name-calling of the ‘sticks and stones will break my bones’ variety.” The court explained that the book recounts the circumstances leading up to Vossler’s lawsuit and that the bases for Hamsher’s “colorful expressions of opinion are thoroughly disclosed with no fact of any significance falsely stated.”

The court also found that Hamsher’s use of “stupid,” “laughed at,” “a joke,” and “frivolous” did not improperly attack Ferlauto’s competence or ethics and could not be the basis for a defamation claim. Furthermore, the court explained that caricature, imaginative expression, and rhetorical hyperbole are often subject to defamation actions, but generally amount to a “legitimate exercise of literary style.”

Ferlauto, in addition, argued that a First Amendment defense could not be asserted because it had been waived when the parties entered into a confidentiality agreement in the Vossler litigation. The court held that there was no such waiver.

(Ferlauto v. Hamsher; Counsel: Stephen G. Contopulos, Los Angeles)

© 1999 The Reporters Committee for Freedom of the Press

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