Thomas v US, CA 87-1820

Section 2


Plaintiffs seek to state a cause of action against the Times defendants , individually and in conspiracy with the federal defendants, under 42 U.S.C. §§ 1983, 1985(3) and/or 1986. See. e.g., at ¶¶ 75, 78-86, In addition, the complaint attempts to assert common law libel and assault claims against various defendants.

Defendants have filed a motion to dismiss resting on numerous grounds. For the reasons discussed in this Memorandum, an accompanying Order grants the Times defendants' motion. The Washington Times cannot be held liable for money damages to individuals whom the newspaper's editors criticize in published opinions, no matter how vituperative that criticism. Even if the First Amendment could tolerate such an action, plaintiffs here have failed to state a claim under 42 U.S.C. § 1983, 1985(3), or 1986.


Moreover, plaintiffs' common law libel claim, and the assault claims arising out of the alleged "raid" in Lafayette Park, are barred by the District of Columbia statute of limitations which explicitly provides only one year in which to file actions for these and other torts of this nature, including plaintiffs' claim for intentional infliction of emotional distress. The limitations period expired in july of 1986. These flaws prove fatal to plaintiffs' entire action against the Times defendants.

In addition to these three grounds, defendants move to dismiss on several alternative theories: that service of process against them was insufficient; that, because plaintiffs fail to state their claim under federal civil rights statutes, this Court lacks subject matter jurisdiction over the pendent common law claims; that the complaint fails to state a claim for any of its common law tort theories and that the organizational plaintiffs lack standing to bring this action. Since the accompanying Order's rulings on the first three grounds are dispositive, it is unnecessary to address the several alternative grounds advanced for dismissal.


In setting forth both the libel claim against The Washington Times and the claim that the newspaper has conspired to infringe plaintiffs' First Amendment rights the complaint focuses on newspaper editorials and cartoons


critical of plaintiffs and of their chosen form, substance, and location of expression. Plaintiffs' defamation allegation rests on "misrepresentations" about plaintiffs purportedly contained in those publications.

It is apparent from plaintiffs' allegations that, in essence, they charge the Times with vigorous espousal of a political position contrary to plaintiffs', The complaint contends that the newspaper has criticized sharply, and in uncomplimentary terms, plaintiffs' expressive activity `in front of the White House and in Lafayette Park, But it is a core purpose of the First Amendment to protect the newspaper's right to publish even vituperative editorials, hostile cartoons, and news articles critical of opponents in a political debate. See Gertz v. Robert Welch. Inc., 418 U.S. 323, 339-40 (1974); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 257-58 (1974); Ollman v. Evans, 750 F.2d 970 (D,C, Cir. 1984) (en banc), cert, denied, 471 U,S. 1127 (1985).

The consequences of this principle for plaintiffs' action here are twofold. First, recognition of the editorial statements at issue as constitutionally protected expression in their own right compels a conclusion that the newspaper cannot be held liable for damages arising from actual or perceived injury to those who are criticized or even ridiculed within that speech. Second, recognizing the statements' constitutional status leads to rejection of


plaintiffs' conspiracy claims under 42 U.S.C, §§ 1983 and 1985(3).


Plaintiffs primarily challenge statements made about them, overtly and obliquely, in articles denominated as "editorials," See Complaint at ¶¶ 47-51. Defendants contend that the Times' statements, unlike typical news reports, are nothing other than statements of opinion by the newspaper and its managers. See Times' Motion to Dismiss at 29-31. [2]

If opinion, the statements' constitutional protection rests on what had been termed the "common ground" of First Amendment doctrine:


Gertz v. Robert Welch, Inc,, 418 U.S. at 339-40. Accordingly, statements of opinion enjoy absolute protection under the First Amendment. Ollman v.Evans, 750 F.2d at 975.

Reasonable minds can differ as to whether a particular statement expresses opinion or fact. See, Ollman v. Evans

[2 The Times defendants address only those statements at issue that were published in 1984 and after, Defendants contend that all other articles mentioned by plaintiffs were published more than three years before the filing of the 1987 action and, thus, fall outside even of D.C.'s longest limitations period of 3 years. Times' Motion to Dismiss at 31 n.10. This Memorandum considers statements appearing in all of the challenged publications, dating back to 1983, for the purpose of its analysis of plaintiffs' libel claim.]


750 F.2d at 978. The distinction between the two, however, has been understood to present a question of law to be resolved through analysis of the totality of circumstances surrounding the statement itself. Id. at 978-79. To aid courts in discerning opinion from fact, The Ollman plurality established a four-factor test. Those factors include 1) whether the "common usage or meaning" of the statements is precise or ambiguous, since readers are more likely to recognize ambiguous statements as opinion; 2) whether the statement is verifiable, since opinion is more likely than fact to be unverifiable; 3) what is the linguistic context of the statement in the publication; and 4) what is the broad context in which the statement is published. Ollman v. Evans, 750 F.2d at 979-84.

Although plaintiffs contend that Times publications contain not opinion but false statements of fact, analysis of the publications at issue under the Ollman criteria compels the conclusion, under the totality of circumstances, that the Times' statements express opinion and not fact. Referring to language used in the editorials to denigrate their anti- nuclear demonstration, plaintiffs maintain that none of the "signs which [they have] used during the course of [their] communicative activities in Lafayette Park have ever contained 'gibberish' · · been 'unAmerican,' or been "trash,'" Complaint at ¶ 46. Moreover plaintiffs assert, the editorials contain such misrepresentations as the claim


that plaintiffs' signs are "a continuing insult, mocking the true intent behind the precious right of citizens to petition the government for the redress of grievances." Id.. at ¶ 47, Finally, plaintiffs deny that they are "' bum[s),' ... 'pitiable lunatic[s],' 'deluded,' or 'insane,'" Id. at ¶ 50. Plaintiffs conclude that:


Plaintiffs' Opposition at 14.

However harsh these allegedly defamatory statements sound, the "common usage and meaning" of the language used here is not to communicate facts. To refer to a political opponent's message and means of expression as "gibberish," "garbage," or "trash" is not to make definite and unambiguous statements "laden with factual content" such as may support a defamation action. See Ollman v. Evans, 750 F,2d at 980.

Similarly, the statements at issue are not "verifiable." A charge that plaintiffs 'signs are "unAmerican," for example, is not objectively capable of proof or disproof' See id, at 981. Like the label "fascist" at issue in Bucklev v. Littell, 539 F.2d 882 (2d Cir. 1976), cert. denied, 929 U.S. 1062 (1977), the analysis supporting which decision informs the Ollman test, the label "unAmerican" cannot be regarded as expressfng a statement of fact "beause of the tremendous imprecision of the meaning and usage of [the]


term[] in the realm of political debate." Ollman v. Evans, 790 F.2d at 980, quoting Buckley v. Littell, 539 F.2d at 893. Because of this imprecision, There can be no "clear method of verification with which to evaluate" the truth or falsity of terms used by Times commentators to describe and to criticize plaintiffs. Ollman v. Evans, 750 F.2d at 981, citing Buckley Y. Littell, supra.

Moreover, both the immediate, linguistic context and the overarching social and political setting of the Times' statements contribute to their definition here as opinion rather than fact. As plaintiffs themselves recognize, see Complaint at ¶¶ 45, 47, & 49, the challenged statements appeared, for The most part, in newspaper editorials, thus in a genre typically understood as a vehicle for the expression of opinion, As explained in Ollman,


Ollman v. Evans, 750 F.2d at 986, citing National Rifle Association v. Dayton Newspaper, Inc., 555 F, Supp. 1299, 1309 (S.D. Ohio 1983). It is true that editorials can and do contain statements of fact and that there is no blanket First Amendment privilege for every statement appearing on a


newspaper's editorial or Op-Ed page. See Ollman v. Evans, 750 F.2d at 983 n,33. Nevertheless, the linguistic context of the statements challenged here, see. e.g., Complaint, Exhibits 12, 13 & 15, as well as their publication in a forum whose traditional function is broadly understood to be the communication of opinion, compel the conclusion that the language of the Times' harsh descriptions of plaintiffs was "being used in a metaphorical, exaggerated or even fantastic sense." Ollman v. Evans, 750 F.2d at 982.

The broad social and political context in which these statements appeared also lends to their definition as opinion rather than fact. The editorials at issue reflect the fact that The Washington Times has adopted a political position contrary to plaintiffs': the newspaper's espousal of its position, and of its opposition to plaintiffs', partakes of a longstanding tradition of vigorous social and political criticism in the press. A reasonable reader, encountering in a Times editorial the charge that plaintiffs were "garbage" or "bums," is not likely to construe these statements as anything other than opinion expressed through exaggerated rhetoric. As was held true of the label "traitor" applied to one who crosses a picket line in the context of a labor dispute, the terms used by the Times to criticize plaintiffs must be understood in this context as "loose, figurative" language that expresses opinion. See Old Dominion Branch No. 496. National Association of Letter Carriers v. Austin, 418


U.S. 264, 284-87 (1974). In this atmosphere of charged political debate, even the newspaper's description of plaintiffs as "insane" persons and as "pitiable lunatics" reflects opinion and not fact -- exaggerated epithet, not factual allegation.

Once recognized as expressing opinion and not as conveying fact, the editorial statements at issue here must be accorded absolute protection under the First Amendment. Plaintiffs cannot, consequently, maintain an action for damages resulting from the newspaper's hostile expressions of its opinion concerning plaintiffs' First Amendment activity, See Ollman v. Evans, 750 F.2d at 975 & n.7. To entertain such an action would be to undermine the


New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).


As fundamental to First Amendment doctrine as its absolute protection of opinion is the principle that "there is no constitutional value in false statements of fact." Gertz v. Robert Welch. Inc., 418 U.6. at 341. Under Ollman's four-factor test, the statements at issue in this action are best characterized as expressions of opinion rather than fact. Plaintiffs disagree. Yet, even if the publications at


issue here were construed to communicate arguably false statements of fact rather than pere expressions of opinion, those statements still would not constitute "libel" or "defamation" such as would allow plaintiffs to maintain this action against The Washington Times.

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