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Kinzel v. Discovery Drilling6/25/2004
uss here the summary judgment decision as to the first claim.
We review grants of summary judgment de novo and in the light most favorable to the non-moving party. Summary judgment is upheld if the evidence presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The party opposing summary judgment need not establish that it will ultimately prevail at trial, but only that there exists a genuine issue of fact to be litigated.
Kinzel claims as error the superior court's grant of summary judgment for Hart Crowser on Kinzel's first defamation claim. Kinzel asserts that Hart Crowser's Martin made defamatory statements about Kinzel in an e-mail to Kyle Brown. The e-mail read:
In light of the issues that we have had to deal with during the 8 Car Header installation, I think that it would be better if you didn't have Jeff up here. The air sparge line issue (not installing the black iron pipe) was apparently done during the last few days that he was here and I wonder if it was deliberate. Like to hear your thoughts on the subject. (Emphasis added.)
In ruling, the superior court did not give reasons for granting Hart Crowser's motion for summary judgment. Kinzel speculates that the basis of the ruling was that "the statement was protected 'opinion' speech," and argues that a fact-opinion dichotomy is misguided. Hart Crowser argues that there are two legitimate bases upon which the court could have ruled: (1) the statement was incapable of being proven false, or (2) the statement was privileged.
Kinzel argues that a statement is defamatory if it implies underlying factual knowledge, even if it is allegedly expressed as an "opinion." Kinzel thus anticipates Hart Crowser's defense that expressions of opinion are always protected speech. In dealing with the fact/opinion distinction, we are guided by the United States Supreme Court in Milkovich v. Lorain Journal Co. and our own opinion in Sands v. Living Word Fellowship.
In Milkovich, the United States Supreme Court was concerned with a common misinterpretation of dicta in one of its earlier cases, Gertz v. Robert Welch, Inc. Some courts asserted that Gertz stood for the proposition that opinion could never qualify as defamation. But as Milkovich explained: we do not think this passage from Gertz was intended to create a wholesale defamation exemption for anything that might be labeled "opinion." Not only would such an interpretation be contrary to the tenor and context of the passage, but it would also ignore the fact that expressions of "opinion" may often imply an assertion of objective fact.
In Sands we acknowledged Milkovich and Gertz and determined that the real distinction is not between opinions and facts, but between statements represented as "expressions of ideas" and statements purporting to represent facts:
The First Amendment bars actions for defamation where the allegedly defamatory statements are expressions of ideas and "cannot reasonably be interpreted as stating actual facts about an individual." Milkovich, 497 U.S. at 20; see Gertz, 418 U.S. at 339. If the context demonstrates to the audience that the speaker is not purporting to state or imply actual, known facts, then the speech is protected by the First Amendment.
This interpretation is supported by the Restatement of Torts and Keeton.
The Seventh Circuit has stated, "if it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable." The First Circuit has further explain
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