Wednesday, February 28, 2018

Article in Judges' Journal is opinion, not actionable under defamation or false advertising law

Board of Forensic Document Document Examiners, Inc. v. American Bar Ass’n, No. 17 C 01130, 2018 WL 1014510 (N.D. Ill. Feb. 22, 2018)

The Board of Forensic Document Examiners, and seven of its members, alleged defamation by an article appearing in The Judges’ Journal, published by the ABA. Members of the Judicial Division of the ABA receive a complimentary subscription to the Journal. In August 2015, a special issue titled Forensic Sciences – Judges as Gatekeepers focused on various subjects of forensic science that judges might encounter when qualifying experts. One article, Forensic Handwriting Comparison Examination in the Courtroom, was written by defendant Thomas Vastrick, who is a forensic document examiner certified by a different board, namely, defendant American Board of Forensic Document Examiners. Vastrick also sits on the board of the American Board and is one of its past presidents. The court commented that he really should have disclosed that affiliation, but still there was no viable cause of action.

The plaintiffs challenged four statements as defamatory/false light invasion of privacy/false advertising under state and federal law:

An appropriately trained forensic document examiner will have completed a full-time, in-residence training program lasting a minimum of 24 months per the professional published standard for training. Judges need to be vigilant of this issue. There are large numbers of practitioners who do not meet the training standard.
The American Board of Forensic Document Examiners … is the only certification board recognized by the broader forensic science community, law enforcement, and courts for maintaining principles and training requirements concurrent with the published training standards. Be wary of other certifying bodies.
In a section captioned, “What to look out for,” the statements, “Certified by board other than the American Board of Forensic Document Examiners” and “Member of American Academy of Forensic Sciences but not the Questioned Document Section.”

Plaintiffs challenged these statements as false based on the required training standards for certification, their specific backgrounds, and the courts’ previous acceptance of practitioners certified by the Board. The author and editor allegedly knew that the statements in the article were false, because both knew that the Board and the American Board were each certified by the same accrediting entity, and that the Board abided by published training standards for certification.

Defamation: An actionable statement must sufficiently identify the person who is being criticized to a “reasonable individual” reading the statement. If “extrinsic facts and circumstances” are needed to show that a statement refers to a particular plaintiff, it’s not defamation per se. The challenged statements didn’t identify any particular person by name, let alone any of the plaintiffs. Plaintiffs argued that this was group defamation: a statement can identify the persons in the group if the group is “sufficiently small and the words may reasonably be understood to have personal reference and application to any member of the group.” Plaintiffs’ group was around 12 diplomates certified by the Board.  But that wasn’t enough, because the first challenged statement could reasonably be interpreted to refer to any forensic document practitioner who has not completed the specified training program—not just the twelve examiners certified by the Board. It even says, “There are large numbers of practitioners who do not meet the training standard.”

So too with the second and third statements, which promoted the American Board without explicitly naming the Board.  Plaintiff Sulner claimed that he was the specific target of the fourth statement, “look out for” someone who is a “Member of American Academy of Forensic Sciences but not the Questioned Documents Section.” Sulner alleged that he was the only certified forensic document examiner “known to be” a member of the American Academy of Forensic Sciences but not a member of the Questioned Documents Section (because members can only be in one section and as an attorney he was in the Jurisprudence section). But anyone who is a member of the American Academy of Forensic Sciences but not the Questioned Documents Section fit into the statement.  Also, Sulner didn’t allege that a reasonable reader somehow has access to all the relevant information and thus would interpret the statement to target him. “Even if some extraordinarily enterprising reader of The Judges’ Journal pieced all of that together, where a ‘speaker is meticulous enough to preserve the anonymity of an individual … the speaker should not be exposed to liability for defamation because someone ferrets out the identity of the individual.’”

Separately, the statements constituted non-actionable opinion.  The court first framed the overall context: it’s a “scholarly” journal, setting the stage for the article to be received as opinion, “because reasonable readers (especially judges) know that scholarly journals often present one side or the other in opinionated debates.” And the relevant article explicitly presented itself as offering suggestions for judges to consider in evaluating the expertise of document examiners. The intro for “What to look for” and “What to look out for” “employs the language of opinion, not hard facts”: “While judges are responsible for being court gatekeepers, I, as a practicing forensic document examiner, would like to respectfully suggest ways to differentiate between the true professional and the lesser-qualified practitioners.” The entire section of the article was called, “Gatekeeping Tips from a Practitioner,” indicating that this is the author’s viewpoint.  

The individual statements also used the language of opinion, such as “appropriately trained forensic document examiner” (emphasis added), and “recognized by the broader forensic science community, law enforcement, and courts ….”  There was no way to verify the American Board’s “recognition” in the community, and the sweeping breadth of the statement made it even less fact-like/verifiable.  The third and fourth statements were part of the section “What to look out for,” which already spoke in the language of an opinion. And the intro sentence says that the author “suggests” that judges look for certain things to distinguish between a “true” professional and “lesser”-qualified practitioners. “Suggests,” “true,” and “lesser” “all signify that Vastrick is expressing his opinions in offering the lists.”

Without a factual statement, the false light and state-law false advertising claims also failed, as did the Lanham Act claim--without even needing to address the question of whether the article constituted "commercial advertising or promotion."

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