Date: 05-12-2015

Case Style: Colleen C. Piccone v. John W. Bartels, Jr.

Case Number: 14-1989

Judge: Stahl

Court: United States Court of Appeals for the First Circuit on appeal from the District of Massachusetts (Suffolk County)

Plaintiff's Attorney: Dan Gelb, with whom Richard M. Gelb, Michelle Iandoli Lamendola, and Gelb & Gelb LLP were on brief, for appellants.

Defendant's Attorney: Dave Lawless, with whom Nancy Frankel Pelletier< and Robinson Donovan, P.C. were on brief, for appellee.

Description: Following an encounter between the
parties, Defendant, a local police chief, called Plaintiffs'
employer to complain about their behavior during the incident.
Plaintiffs filed suit, alleging, inter alia, slander and
interference with advantageous business relations. The district
court granted summary judgment to Defendant on both counts. We
affirm.
I. Background
Colleen Piccone, a resident of New York, is Deputy
Associate Chief Counsel to Customs and Border Protection, part of
the United States Department of Homeland Security (DHS). Her
boyfriend, Peter Quaglia, is a New York-based special agent with
the same agency. In January 2008, the Massachusetts Department of
Social Services (DSS) and local police began investigating
Piccone's brother, Louis, for alleged child abuse. The state court
granted temporary custody of Louis's three children to DSS.
Meanwhile, Louis fled the state with his wife and children.
Subsequently, the court issued warrants for the parents' arrest.
Piccone applied for temporary custody of her brother's
children with the intent of supervising them in the family's
Dalton, Massachusetts home. On February 1, 2008, Piccone traveled
with Quaglia from New York to Massachusetts to attend a hearing on
her application. Before the hearing began, a juvenile court
probation officer informed Piccone and Quaglia that someone would
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need to install a carbon monoxide detector in Louis's home in order
to place the children there in Piccone's care. On counsel's
advice, Piccone and Quaglia purchased a detector at a local
hardware store and headed to Louis's home to install it before the
hearing.
When they arrived, Piccone and Quaglia found two police
officers at the house. Defendant John W. Bartels, Jr., chief of
the Dalton Police Department, demanded that Piccone and Quaglia
identify themselves and told them that they could not enter the
dwelling. Piccone presented her driver's license and Quaglia
showed his federal identification. After a tense exchange, Bartels
called the juvenile court probation officer, who confirmed that
Piccone and Quaglia had been told to install a carbon monoxide
detector in the home. Bartels returned to Quaglia and told him
that he could enter the house and install the detector. Quaglia
did so, and then he and Piccone left for the courthouse.
Later that day, Bartels spoke with a state trooper and
expressed his frustration that Quaglia and Piccone were "telling
everybody what to do. That -- that's what really gets my ass out."
The state trooper encouraged Bartels to "[m]ake calls to [the
federal agency], get someone fired, do something." Shortly after
speaking with the state trooper, Bartels contacted DHS to complain
about Plaintiffs' behavior and spoke with Matthew Carbone, an agent
with DHS's Office of Inspector General. During their conversation,
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Bartels described his encounter with Plaintiffs at length and told
Carbone that he found their conduct unprofessional.1 After
describing how he and his fellow officer asked Plaintiffs for
identification and told them that they could not go in the house,
Bartels relayed the following information:
Uh and there was a little bit of a uh an
argument. You know things were getting a
little agitated here. Uh and [my fellow
officer and I] were on a . . . high anxiety
level as it was because we've been dealing
with this thing for two weeks . . . . But at
any rate I told them you're not going in[to
the house], period. Uh until we're told by
the court that you can. And uh they then um
you know obeyed what we said. And they went
and sat in their car.
Bartels then explained that he had confirmed Plaintiffs' story
about the carbon monoxide detector with the juvenile court
probation officer. Carbone replied:
CARBONE: Ok. So their story did pan out.
BARTELS: It did.
CARBONE: It's just that they really weren't
too social about it.
BARTELS: No. They weren't.
Carbone pointed out that it was "good" for Piccone and Quaglia that
they had explicitly told Bartels that they came to the house on a
private matter and not on official federal agency business and
"just showed [Bartels] their ID, which happened to be government
1 The record includes a transcript and audio recording of the
forty-five minute conversation between Bartels and Carbone.
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ID." Carbone also noted that the "story they gave [Bartels] was
actually corroborated because they did have the CO detector."
Bartels acknowledged those facts, but said:
Well there were a lot of -- there were a lot
of questions as for what authority we had. Um
you know and well I -- I -- it seemed like
they didn't feel that we had the authority to
tell them no you're not going into the house
. . . . And not knowing who they were. I
mean it was just kind of more of a hassle than
we needed to go through.
Bartels expressed his view that Plaintiffs could have "ma[de]
things a little bit easier on us" so that the officers didn't have
to "increase" their "level of aggression." Carbone replied:
CARBONE: Uh clearly unprofessional conduct
on their -- on their part uh.
BARTELS: On that level yes. Now to uh um
Mr. Quaglia's credit, he apologized at the end
of all this.
CARBONE: Ok.
BARTELS: Uh and he said . . . we're at a
high stress level. . . . He drove all night to
get here. . . .
CARBONE: Mm hm.
BARTELS: Uh and uh uh I can understand
that. And I uh told him that. I said listen,
I know things are -- things are at a fever
pitch right now. But we don't need to go
through this type of stuff because it just
makes matters worse.
CARBONE: Right.
BARTELS: Uh so um all in all they left in
an amicable fashion. I didn't have any
further conversation with Ms. Piccone because
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after the initial conversation, she went into
the car, I never spoke with her again.
Bartels went on to note that the situation "was kind of defused"
when his fellow officer "cool[ed] [Plaintiffs] down" and Quaglia
apologized.
Midway through the conversation, Carbone inquired, "did
you guys believe that . . . Quaglia or Colleen knew where the
parents were?" Bartels replied that the officers "didn't ask them
specifically" but pointed out:
I can't believe -- they've been involved in
this thing since the get-go. And I believe it
was Colleen's house . . . which was searched
by NYPD and that was -- hell, that was back on
the twenty-fifth of this month -- or of last
month. So not to know that there are
warrants, I don't know.
Carbone then asked, "Is it fair to presume that she probably knows
where they are, she's trying to get the . . . foster or adoption
paperwork done so that she can amicably take custody of the kids
and then the parents would turn themselves in?" Bartels replied in
the affirmative: "I think that's their motive. Uh I think they
want to uh get the kids situated. And then let uh the parents uh
you know deal with their criminal charges here."
Carbone then said that he originally had the impression
that Piccone and Quaglia were "[p]urposely hiding stuff" and "[n]ot
being cooperative" with law enforcement, but told Bartels, "the
fact that you guys didn't [pressure Plaintiffs to identify the
location of the kids and parents] in the driveway with them leads
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me to believe" that "it's not that -- that type of an emergency."
Carbone signaled that it would "definitely [have been] a [Customs
and Border Protection] policy violation" if Quaglia and Piccone
either had "misrepresent[ed] that they're there for immigration
reasons and they weren't" or "thwart[ed] law enforcement from
finding a fugitive." Bartels clarified, "No that -- that didn't
happen."
Bartels acknowledged again, "I don't know that there's an
emergency" but told Carbone, "[t]he more I rattle that family's
tree -- . . . . [t]he better I'm going to feel." He reiterated
his displeasure with what he viewed as Piccone and Quaglia's lack
of "professional courtesy" during the interaction: "yeah, you know,
I'm not with the Department of Homeland Security and yeah, I don't
have the connections you do, but goddamn it, I'm a cop just like
you are." Shortly after, Carbone asked whether Bartels "kn[ew]"
that Quaglia and Piccone were aware that the state had issued
arrest warrants for Louis and his wife. Bartels responded, "No I
don't know that," and then continued, "[b]ut I'm assuming that they
know where [the family members] are, only because they're here
trying to help get . . . custody" of the children.
Toward the close of the phone call, Carbone noted that he
was hesitant to "ratchet [the investigation] up another level" if
"the law enforcement authority that's actually looking for the
parents didn't ask [Plaintiffs] those tough questions" about the
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missing family's whereabouts. Bartels confirmed that he did not
need Carbone to initiate an emergency investigation and concluded:
And I'm not looking uh for heads to roll. Uh
I'm just looking to you know say hey where are
they. Uh evidently the courts didn't --
didn't push the issue. Uh and we didn't push
the issue up at the house. . . . [M]aybe
communications wasn't [sic] the best uh on our
part between the police department and the
courts. . . . In fact I wish the damn uh
courts had called us to begin with to let us
know. Say hey there's going to be people up
at the house. . . . Then we wouldn't be
having this conversation right now.
As a result of Bartels's telephone call, DHS launched
investigations into Piccone and Quaglia's conduct. Ultimately, DHS
took no action against either plaintiff.
Plaintiffs filed suit in district court,2 alleging
slander and libel; malicious falsehood; interference with
advantageous business relations ("IABR"); violation of
Massachusetts's right to privacy statute, Mass. Gen. Laws ch. 214,
§ 1B; and intentional infliction of emotional distress. The
district court allowed Defendant's motion to dismiss as to all but
the slander and IABR claims. Piccone v. Bartels, No. 11-cv-10143-
MLW, 2012 WL 4592770, at *12 (D. Mass. Sept. 29, 2012). After a
hearing, the district court granted summary judgment to Defendant
2 Plaintiffs also filed suit against the Dalton Police
Department and the Town of Dalton, but later amended their
complaint, leaving Bartels as the sole defendant.
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on the two remaining counts. Piccone v. Bartels, 40 F. Supp. 3d
198, 201 (D. Mass. 2014). This appeal followed.
II. Analysis
We afford summary judgment decisions in defamation cases
de novo review. Yohe v. Nugent, 321 F.3d 35, 39 (1st Cir. 2003).
On appeal, Plaintiffs challenge two categories of statements made
by Defendant: first, that Plaintiffs acted unprofessionally, and
second, that they may have had knowledge regarding the location of
the absent parents and/or children. We conclude that neither
category is actionable under Massachusetts defamation law.
The Supreme Court has recognized "constitutional limits
on the type of speech which may be the subject of state defamation
actions." Milkovich v. Lorain Journal Co., 497 U.S. 1, 16 (1990).
Because defamation requires a false statement at its core, opinions
typically do not give rise to liability since they are not
susceptible of being proved true or false. E.g., Veilleux v. Nat'l
Broad. Co., 206 F.3d 92, 108 (1st Cir. 2000); Phantom Touring, Inc.
v. Affiliated Publ'ns, 953 F.2d 724, 727 (1st Cir. 1992) (quoting
Milkovich, 497 U.S. at 21). As Massachusetts case law observes,
"[i]n the defamation context, an expression of 'pure opinion' is
not actionable." HipSaver, Inc. v. Kiel, 464 Mass. 517, 526 n.11
(2013). Thus, a statement cannot be defamatory if "'it is plain
that the speaker is expressing a subjective view, an
interpretation, a theory, conjecture, or surmise, rather than
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claiming to be in possession of objectively verifiable facts.'"
Gray v. St. Martin's Press, Inc., 221 F.3d 243, 248 (1st Cir. 2000)
(quoting Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th
Cir. 1993) (Posner, J.)).
Merely couching a statement as an opinion, however, will
not automatically shield the speaker from liability where the
statement implies the existence of underlying defamatory facts.
Milkovich, 497 U.S. at 18–19; see also Restatement (Second) of
Torts § 566 (1977) ("A defamatory communication . . . in the form
of an opinion . . . is actionable only if it implies the allegation
of undisclosed defamatory facts as the basis for the opinion.").
Nonetheless, defamation cannot arise where the speaker communicates
the non-defamatory facts that undergird his opinion. Yohe, 321
F.3d at 41–42. Thus, the speaker can immunize his statement from
defamation liability by fully disclosing the non-defamatory facts
on which his opinion is based. Howell v. Enter. Publ'g Co., 455
Mass. 641, 671–72 (2010).
Put together, "the relevant question is not whether
challenged language may be described as an opinion, but whether it
reasonably would be understood to declare or imply provable
assertions of fact." Phantom Touring, 953 F.2d at 727 (discussing
Milkovich, 497 U.S. at 21). Whether a statement is a verifiable
fact or an opinion can be decided by the court as a matter of law.
Gray, 221 F.3d at 248; Lyons v. Globe Newspaper Co., 415 Mass. 258,
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263 (1993). This task requires an examination of the totality of
the circumstances in which the specific challenged statements were
made, including the general tenor and context of the conversation
and any cautionary terms used by the person publishing the
statement. Yohe, 321 F.3d at 41; Riley v. Harr, 292 F.3d 282, 290
(1st Cir. 2002); Howell, 455 Mass. at 671.
With this framework in mind, we conclude that the
statements concerning Plaintiffs' conduct during the encounter and
their potential knowledge of the missing family's whereabouts
constitute non-actionable opinions where Defendant fully disclosed
the non-defamatory facts undergirding his opinion.

A. Unprofessional Conduct
At multiple points during their conversation, Bartels
told Carbone that he found Plaintiffs' behavior unprofessional.
The term 'professional' typically does not lend itself to any
"single, readily ascertainable meaning," see Levinsky's v. Wal-Mart
Stores, Inc., 127 F.3d 122, 129 (1st Cir. 1997). For example, the
Oxford English Dictionary defines 'professional' as "[r]eaching a
standard or having the quality expected of a professional person or
his work; competent in the manner of a professional." 12 The
Oxford English Dictionary 573 (2d ed. 1989). Merriam-Webster's
Collegiate Dictionary adds the following aspect: "exhibiting a
courteous, conscientious, and generally businesslike manner in the
workplace." Merriam-Webster's Collegiate Dictionary 991 (11th ed.
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2003). Taken in the context of the full conversation, Defendant's
statements touch on these imprecise and subjective connotations of
the term 'professional.' Where an expressive phrase, though
pejorative and unflattering, cannot be "objectively verified," it
"belongs squarely in the category of protected opinion."
Levinsky's, 127 F.3d at 130 (rejecting defamation claim based on
description of clothing store as "trashy"); Phantom Touring, 953
F.2d at 728 (holding that newspaper's critique of a theater
production as "fake" and "phony" could not be proven true or false,
"since those adjectives admit of numerous interpretations"); McCabe
v. Rattiner, 814 F.2d 839, 842–43 (1st Cir. 1987) (concluding that
characterization of condominium sales pitch as a "scam" was not
actionable because the term lacks a precise "core meaning").
Whether or not a particular person's behavior may be characterized
as 'professional' or exhibiting 'professional courtesy' will often
be a quintessential "expression[] of personal judgment" which is
"subjective in character," Gray, 221 F.3d at 248.
The term 'professional' can also be used in a more
objective sense, as "characterized by or conforming to the
technical or ethical standards of a profession or occupation."
Webster's Third New International Dictionary 1811 (1961). Thus, in
some contexts, a statement that a person has acted
unprofessionally, without explanation, might imply the existence of
undisclosed defamatory facts concerning a sufficiently objective
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standard of conduct. Here, however, Plaintiffs do not allege that
Defendant accused them of violating any technical, ethical, or
commonly-understood standard. Even if some type of shared standard
of professionalism for police and federal agency conduct could be
identified that would have been readily understood by both
Defendant and Carbone, Defendant explained the circumstances of the
encounter, thus providing Carbone with the factual basis underlying
his opinion of Plaintiffs' conduct. See Restatement (Second) of
Torts § 566 cmt. b (1977) (a comment on "the plaintiff's conduct,
qualifications or character" coupled with a statement of the facts
on which the speaker bases that opinion constitutes one type of
"pure" opinion). For example, Bartels told Carbone that Quaglia
apologized following the initial encounter and conceded that "all
in all [Plaintiffs] left in an amicable fashion." Likewise,
Bartels affirmed Carbone's statement that "[Plaintiffs'] story did
pan out. . . . they just weren't too social about it." Thus, the
full context of the conversation makes clear that Defendant fully
disclosed the non-defamatory facts about the confrontation in a way
that allowed Carbone to form his own impression. Accordingly, the
district court correctly concluded that Defendant's statements
regarding his impression of Plaintiffs' professionalism were not
actionable under defamation law. Cf. Wait v. Beck's N. Am., Inc.,
241 F. Supp. 2d 172, 183 (N.D.N.Y. 2003) (observing that
"[s]tatements that someone has acted unprofessionally or
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unethically generally are constitutionally protected statements of
opinion" and citing cases); Naeemullah v. Citicorp Servs., Inc., 78
F. Supp. 2d 783, 793 (N.D. Ill. 1999) (classifying statements that
plaintiff "has poor interpersonal skills and run-of-the-mill
professional abilities" as "nonactionable statements of subjective
opinion"); Froess v. Bulman, 610 F. Supp. 332, 342 (D.R.I. 1984)
("[I]t is not for the Court to assess the wisdom of the defendant's
opinion [that, inter alia, plaintiff was 'downright professionally
rude' and did not 'show enough professional courtesy'], or to
punish him for expressing it."); Pritsker v. Brudnoy, 389 Mass.
776, 781-82 (1983) (concluding that statements critical of
restaurant, including that owners were "unconscionably rude and
vulgar people," were non-actionable opinions); see also Catalfo v.
Jensen, 657 F. Supp. 463, 468 (D.N.H. 1987) ("Ethical standards are
inherently subjective, and what is sleazy to one person will not
necessarily be so to another.").
B. Possible Knowledge of Family's Whereabouts
Defendant's statements regarding Plaintiffs' possible
knowledge of the family's whereabouts are on a somewhat different
footing. On its face, the proposition that Plaintiffs may have
known the location of the family "seems sufficiently factual to be
proved true or false," Levinsky's, 127 F.3d at 131, and thus could,
under certain circumstances, give rise to defamation liability.
For example, we said in Gray that a statement concerning whether
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the plaintiff was personally acquainted with someone could, if
false, support a defamation claim because whether the plaintiff had
met a certain person "is an objective fact." 221 F.3d at 249.
Similarly, in Milkovich, the Supreme Court instructed that the
statement "[i]n my opinion John Jones is a liar" could be
actionable because it implies the speaker knows at least one
undisclosed objective fact -- that Jones told a lie. 497 U.S. at
18-19.
However, Defendant's "full disclosure of the facts
underlying his judgment -- none of which have been challenged as
false -- makes this case fundamentally different from Milkovich."
Phantom Touring, 953 F.2d at 730. The transcript of Defendant's
conversation with Carbone shows that Defendant disclosed several
non-defamatory facts underlying his "assum[ption] that [Plaintiffs]
know where they are." Defendant conveyed his "belie[f]" that
Piccone's house had been searched in the past month, reasoning that
she probably knew about the outstanding arrest warrants for the
missing parents. Defendant speculated that Plaintiffs possessed a
motive to "get the kids situated" so that the parents could "deal
with their criminal charges." Defendant also pointed out that
Plaintiffs attended the February 1 custody hearing, telling
Carbone, "I'm assuming that they know where they are, only because
they're here trying to get . . . custody." Based on these facts,
Defendant answered in the affirmative when Carbone questioned
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whether it was "fair to presume" that Piccone "probably kn[ew]" the
family's location.
Defendant's full disclosure of the non-defamatory facts
in his possession invited Carbone to extrapolate his own
independent impressions from the information provided. Id. at 731.
Ultimately, Defendant only assented to Carbone's own
characterization of Plaintiffs' probable knowledge. This is a
"crucial distinction" from Milkovich where the context of the
communication implied that "only one conclusion was possible." Id.
At the most, Defendant's statements amount to his "personal
conclusion[s] about the information presented." Id. at 730. The
First Amendment generally protects statements of opinion where the
speaker "'outlines the facts available to him, thus making it clear
that the challenged statements represent his own interpretation of
those facts and leaving the [listener] free to draw his own
conclusions.'" Riley, 292 F.3d at 289 (quoting Partington v.
Bugliosi, 56 F.3d 1147, 1156–57 (9th Cir. 1995)).
Viewed in the context of the full conversation,
Defendant's statements possess a definitively speculative nature.
Defendant made clear to Carbone that he lacked concrete facts to
confirm his suspicion that Plaintiffs may have known the family's
whereabouts. For example, when Carbone inquired whether the
officers had asked Plaintiffs if they knew where the parents were,
Defendant told Carbone "[w]e didn't ask them specifically." He
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also clarified that he did not "know" whether Plaintiffs were aware
of the arrest warrants. Moreover, when Carbone invited Defendant
to allege wrongdoing (asking whether Plaintiffs tried to "thwart"
law enforcement), Defendant refused to do so (replying, "No that --
that didn't happen"). Thus, in combination with the disclosure of
underlying facts, "it becomes even more clear that the [speaker] is
merely speculating . . . about [an] inference." Gray, 221 F.3d at
250–51. Because Defendant's statements are "properly understood as
purely speculation," they are "protected as opinion." Id. at 250.
Admittedly, the version of events Defendant relayed to
Carbone do present a somewhat skewed view of his interaction with
Piccone and Quaglia. Other parts of the record, most notably
Defendant's conversation with the state trooper, indicate that
Defendant may well have been acting with a vindictive motive when
he made the call to DHS. But "[a]n 'expression of opinion based on
disclosed or assumed nondefamatory facts is not itself sufficient
for an action of defamation, no matter how unjustified or
unreasonable the opinion may be or how derogatory it is.'" Yohe,
321 F.3d at 42 (quoting Dulgarian v. Stone, 420 Mass. 843, 850
(1995)).
Because all of the allegedly defamatory statements amount
to non-actionable opinions, we affirm the district court's grant of
summary judgment to Defendant. As for the IABR claim, Plaintiffs
do not challenge the district court's conclusion that this claim
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cannot proceed in the absence of a viable defamation claim. Since
the IABR claim is "premised on precisely the same facts as [the]
defamation claim," Yohe, 321 F.3d at 44, we affirm the district
court's summary judgment decision as to this claim as well.3

* * *

3 The district court assumed for the purpose of its analysis
that Massachusetts's Actual Malice Statute could be applicable to
otherwise non-actionable expressions of opinion. Piccone v.
Bartels, 40 F. Supp. 3d 198, 214 (D. Mass. 2014). That statute
provides that a defendant "in an action for writing or for
publishing a libel may introduce in evidence the truth of the
matter contained in the publication charged as libellous; and the
truth shall be a justification unless actual malice is proved."
Mass. Gen. Laws ch. 231, § 92. The district court concluded that
although there were genuine issues of material fact concerning
whether Defendant made his statements with actual malice, the
Actual Malice Statute did not provide an alternate avenue for
recovery because it applies only to libel actions. Piccone, 40 F.
Supp. 3d at 214 (quoting Bander v. Metro Life Ins. Co., 313 Mass.
337, 342 (1943) (stating that the Actual Malice Statute "does not
apply to an action for slander")). The district court also held
that even if the statute did apply to allegations of slander,
Plaintiffs could not recover under the statute because they are
both public officials. Piccone, 40 F. Supp. 3d at 214–15 (quoting
Materia v. Huff, 394 Mass. 328, 333 n.6 (1985) (holding that "a
judge cannot constitutionally apply [the Actual Malice Statute] to
a public figure or public official")); see also Piccone, 40 F.
Supp. 3d at 218–20 (holding that Plaintiffs are public officials
under applicable case law). Plaintiffs' brief on appeal concedes
that the Actual Malice Statute is inapplicable to this case because
it reaches only libel and not slander. Thus, we need not discuss
the district court's determination that the statute might apply to
expressions of opinion, or the court's conclusion that Plaintiffs
are public officials under the First Amendment.
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Outcome: For the foregoing reasons, we affirm the district court's
grant of summary judgment to Defendant. Each party shall bear its
own costs.

Plaintiff's Experts:

Defendant's Experts:

Comments: