Back in July I wrote about a lawsuit by one John Giduck against SOCNET, a forum discussing the Special Operations community. Giduck claimed he'd been defamed by SOCNET and its users, who asserted that he'd fraudulently posed as a Special Forces veteran.
Today Giduck lost part [or all – see update below] of his suit: Judge Stephen Groome of Park County District Court in Colorado granted a motion to dismiss by three named defendants. Colorado lacks an anti-SLAPP statute, so this was a plain-vanilla motion to dismiss — that is, an argument that the factual allegations in the complaint, even if true, were legally insufficient to state a claim. The judge's order, courtesy of Guardians of Valor, is here.
Judge Groome's order is quite thorough. It articulates one of the core principles of defamation actions: only false statements of fact can be the basis of a defamation claim. Hyperbole and statements of opinion can't.
It is this tension that has generated numerous cases addressing the first element of a defamation action, i.e. is the statement defamatory. Not every untrue, uncomplimentary or offensive statement concerning an individual is defamatory. Indeed, the law is settled in Colorado that the “mere use of foul, abusive, or vituperative language does not constitute defamation.” 7A Colo. Prac., Personal Injury Torts and Insurance § 32.2 (2d ed.), citing Bucher v. Roberts, 198 Colo. 1, 595 P.2d 239 (1979). Expressions of opinion, as distinguished from assertions of fact, are generally not actionable since “[u]nder the First Amendment there is no such thing as a false idea.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2887, 41 L.Ed.2d 784 (1974). Such statements may be (and in practice almost always are) constitutionally privileged in order to safeguard the vigor and candor of public discourse. “Weighed against the individual’s right to be free from false and defamatory assertions . . . is society’s interest in encouraging and fostering vigorous public debate.” Keohane v. Stewart, 882 P.2d 1293. 1298
Giduck's complaint — even after he filed the amendment ordered by the court — attacked hyperbole, rhetoric, and opinion, at least with respect to these three defendants:
The statements attributed to these Defendants regarding Giduck were blunt, uncomplimentary, and probably “rhetorical hyperbole.” But they were also privileged statements of opinion protected by the First Amendment as applied in a litany of Supreme Court and Colorado appellate cases. The application of those cases is a question of law that must be addressed by this Court before the case goes any further. Dismissal of the defamation claims contained in the Amended Complaint is required for failure to state a claim upon which relief can be granted.
The Court also ordered Giduck to pay attorney fees under a Colorado statute applying to early dismissal of claims.
It remains to be seen what will happen with the other defendants [or not — see below]. However, this is a major defeat for Giduck and a major victory for the defendants — and for freedom of expression.
Edited to add: Commenters and tipsters are telling me that the lawsuit has been dismissed against all defendants who were served. Here is a dismissal order applying the same reasoning to three other defendants who also moved to dismiss. I'll look for confirmation that there are no remaining defendants.
Last 5 posts by Ken White
- Free Speech Triumphant Or Free Speech In Retreat? - June 21st, 2017
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- Free Speech Tropes In The LA Times - June 8th, 2017
- I write letters - June 1st, 2017