Journal article merited better disclosure of affiliation w/competing group, not a lawsuit

Board of Forensic Document Examiners, Inc. v. American Bar Ass’n, --- F.3d ----, 2019 WL 1930310, No. 18-2653 (7th Cir. May 1, 2019)

The Board of Forensic Document Examiners is a non-profit organization that certifies forensic document examiners (currently about 12), who analyze and compare handwriting and provide expert testimony in judicial proceedings. Thomas Vastrick, a forensic document examiner certified by a different, much larger organization (the American Board of Forensic Document Examiners), wrote an article in The Judges’ Journal, a peer-reviewed scholarly journal published by the ABA. Vastrick’s article offered guidance for judges in evaluating the qualifications and credentials of handwriting experts. He urged judges to look for experts certified by the American Board and warned judges to “be wary of other certifying bodies.” His biography identified him as a “board certified forensic document examiner out of Orlando, Florida, with over 37 years of experience,” including service as chairman of the “Questioned Documents Section of the American Academy of Forensic Sciences” and participation in a handwriting study funded by the National Institute of Justice.

The Board asserted claims of defamation per se and invasion of privacy on behalf of all of its members, as well as civil conspiracy, false advertising under the Lanham Act, and violations of state competition laws.  The specifically challenged statements:

“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.” The article cautioned judges “to look out for” examiners “[c]ertified by [a] board other than the American Board of Forensic Document Examiners.” The article also cautioned against any “[m]ember of American Academy of Forensic Sciences but not the Questioned Document Section.”

The Board alleged that these statements misled readers about the qualifications of its certified examiners. First, the professional standards allegedly require only the equivalent of a 24-month full-time training program, not a full-time, in-residence program as such. The second and third statements, which identified the American Board of Forensic Document Examiners as the only reputable certifying body, allegedly falsely implied that the plaintiff’s members were unqualified, even though, like the American Board, the Board is accredited by the Forensic Specialties Accreditation Board. And Vastrick allegedly harmed one person in particular by warning judges about forensic examiners who are members of the American Academy of Forensic Sciences generally but not the American Academy’s Questioned Document Section specifically; this person apparently is the only examiner who fits this description.

The Board argued that these statements were defamatory per se because they falsely imply that its experts do not meet the published professional training standards for forensic examiners. “But not all statements that doubt or impugn an individual’s professional abilities are actionable.” Opinions are nonactionable, even if they concern the topics covered by defamation per se.

Context showed that the statements were opinion, not verifiable facts. The article appeared in a scholarly law journal, in an issue devoted to “Forensic Sciences—Judges as Gatekeepers.” Anyone who read it would understand that this was “but one practicing expert’s view on how judges should attend to their gatekeeping obligations.” “Nobody reading the article in this context could reasonably have seen Vastrick’s statements as assertions of fact subject to falsification.”  This is especially reasonable because the Journal warned readers that “[a]rticles represent the opinions of the authors alone” and “provide opposing views” for readers to consider. Vastrick also used the language of opinion: “I, as a practicing forensic document examiner, would like to respectfully suggest ways to differentiate between the true professional and the lesser-qualified practitioners.” A label isn’t enough, but it helps the context.

Breaking down the statements also revealed their opinion status.  For example, Vastrick discussed the qualifications of “an appropriately trained forensic document examiner.” “This express qualification—'appropriately trained’—signaled that Vastrick was offering his own view on adequate qualifications for a forensic examiner, not describing factual, objective standards for qualifications.” The assertion that the American Board “is the only certification board recognized by the broader forensic science community, law enforcement, and courts,” “likewise reflects the expression of a viewpoint, as the statement is so broad as to lack objective, verifiable meaning.”  It’s true that Vastrick should in a moral sense have disclosed his affiliation with the American Board in the article, but that didn’t make his statements defamatory.

This conclusion also disposed of the Lanham Act claim.