An interesting example of this fortunately rare occurrence comes in Olguin v. Santa Barbara Community College Dist. (Cal. Ct. App. Aug. 15, 2011). The case has an interesting discussion of the state-law “common interest privilege,” which is quite important in cases involving alleged defamation within an organization or in job references; but here is an excerpt describing the court’s conclusion that the statements were likely to be nondefamatory opinion:
Plaintiff Arthur Olguin, a psychology professor, appeals a judgment in favor of defendants Santa Barbara Community College District (District) and Raymond Launier, a District psychology professor. Launier filed a grievance against Olguin and sent a memo to District colleagues. Launier claimed that Olguin violated academic freedom when Olguin instructed the college bookstore not to order materials Launier authored and planned to use in his classes. Olguin stated the memo contained false statements including the “republication” of a student’s complaint to the District about witnessing him commit a lewd act in his office….
[The court concludes that there was no error in the instructions that led to a jury verdict in favor of defendants, but goes on to say: -EV]
Moreover, “[a] judgment may not be reversed on appeal, even for error involving ‘misdirection of the jury,’ unless ‘after an examination of the entire cause, including the evidence,’ it appears the error caused a ‘miscarriage of justice.’” … [Here,] there was no miscarriage of justice. Launier’s testimony that he was motivated by concerns about academic freedom is supported by his memo, which is essentially a treatise on academic freedom. Olguin notes that Launier said he had a “forked tongue for spewing bile.” But any colleague reading it would understand that this was said in jest because Launier prefaced these remarks with the phrase “[t]ongue in cheek.”
Olguin views all of Launier’s negative statements about him to be actionable defamation. But Launier set forth the facts from which he drew conclusions. “‘[C]ourts have found statements to be nonactionable opinion when the facts supporting the opinion are disclosed.’” “Arguments for actionability disappear when the audience members know the facts underlying an assertion and can judge the truthfulness of the allegedly defamatory statement themselves.” Here Launier sent the memo to colleagues who knew he had a dispute with Olguin. This was a highly educated audience. After reading the facts of the dispute, they would view the negative conclusions to be largely “rhetorical hyperbole.”
Launier said Olguin’s justifications for censoring his materials were intellectually dishonest and amounted to “deceptive rationalizations.” Olguin notes that Launier also accused him of being “autocratic,” ignoring “academic freedom,” engaging in “would-be book burning,” an “abuse of power,” acting illegally, ignoring district policy, being “overly-controlling,” “restrictive,” “censuring,” “punitive,” “prejudicial,” “ill-justified,” “discriminatory,” “unethical,” having a “misinformation agenda,” being angry, critical, engaging in “small minded attacks,” etc.
These were obvious opinions; readers would understand these words to be “a form of exaggerated expression” based on the author’s “subjective judgment.” Launier used these words as rhetorical barbs in an academic argument against censorship and Olguin’s management of the psychology department.
Launier’s memo touched upon sensitive constitutional interests by urging his academic colleagues to support his opposition to a public college’s censorship of his treatises and to protect the academic freedom of professors to plan their course materials. “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us…. That freedom is therefore a special concern of the First Amendment ….” (Keyishian v. Bd. of Regents (1967) 385 U.S. 589, 603.) Public colleges and universities are important forums for debate and the “robust exchange of ideas.” Consequently, they “are not enclaves immune from the sweep of the First Amendment.” (Healy v. James (1972) 408 U.S. 169, 180.) “[T]he First Amendment tolerates neither laws nor other means of coercion, persuasion or intimidation ‘that cast a pall of orthodoxy’ over the free exchange of ideas in the classroom.” Professors do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
Consequently, in the collision of opposing opinions in heated academic debates on important issues, “‘there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.’” We have “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks ….”
But the chilling effect of litigation on the discussion of these issues is obvious. Consequently, protecting even harshly critical opinions of those at the center of an important controversy “‘provides assurance that public debate will not suffer for lack of ‘imaginative expression.’” (Standing Committee v. Yagman (9th Cir. 1995) 55 F.3d 1430, 1440-1441 [protected opinions included such caustic bombast as referring to the targeted individuals as being "intellectually dishonest," "ignorant," a "buffoon," a "sub-standard human," a "bully," a "midget among giants," "whores," etc.].)
Moreover, the defense claimed the memo did not change how Olguin’s colleagues viewed him because they already had “a fairly poor opinion” of him. That is supported by overwhelming evidence from the testimony of Bostwick, Bursten, Carroll, Endrijonas, Romo, and Friedlander. Those witnesses impeached Olguin’s testimony that he treated his colleagues with respect. Olguin also admitted that his reputation within the department “was harmed” when he was removed as department chair in 1996, and that Launier was not responsible for that demotion. He conceded that, as early as 1996, his colleagues were criticizing him regarding his “interpersonal relationships with them.” Olguin testified that he and other faculty removed Launier as department chair in 1999 partly because of [Launier’s] license revocation. But Olguin was impeached when he later admitted that he did not even discover the revocation until 2000. Bostwick’s testimony supported Launier’s position regarding the alleged lewd behavior incident. The special verdict shows that Olguin was unable to prove causation and damages, and that jurors rejected a substantial portion of his testimony.
Seems quite right to me. UPDATE: Forgot to add: Unfortunately, it took a trial and an appeal, and who knows how much in legal fees, to get the case disposed of.