“Call Me Irresponsible, Call Me Unreliable, Throw in Undependable Too”

I blogged about Turkish Coalition of America, Inc. v. Bruininks (8th Cir. May 3, 2012) when the district court decision came down, and yesterday the Eighth Circuit agreed with the district court’s bottom line (though disagreed with the district court’s decision about standing). I think the District Court and the Eighth Circuit both got it quite right — the defendant university’s labeling the Turkish Coalition’s site “unreliable” and advising students against relying on the site in their research papers doesn’t violate the Coalition’s First Amendment rights, and is also not actionable libel:

TCA alleges that the defendants defamed it by stating that TCA’s website (1) engages in “denial” of the Armenian genocide in Turkey during World War I, (2) is “unreliable,” (3) presents a “strange mix of fact and opinion,” and (4) is an “illegitimate source of information.” …

With regard to the first challenged statement, TCA argues that the Center’s accusation of “denial” is false because the term “denial,” in the context of genocide studies, is a term of art that implies denial of well-documented underlying facts associated with a genocidal event. TCA points out that its website does not deny certain underlying historical facts about the fate of Armenians in Turkey during World War I, such as that “certainly hundreds of thousands of Armenians died during” what it characterizes as “the Armenian revolt.” Under TCA’s interpretation, however, the term “denial” would merely express a subjective evaluation of the credibility of the historical sources for every assertion on the TCA website, many of which TCA admits are “contested.” Such an evaluation of credibility is essentially an opinion, “not capable of being proven true or false,” and thus not actionable in defamation, because different historians might well come to different conclusions. On the other hand, the “denial” statement reasonably can be construed as stating simply that the TCA website denies that the treatment of Armenians within Turkey during World War I meets the definition of the term “genocide.” A statement about the content of the TCA website is capable of being proven true or false. Because the TCA website does, in fact, state that it is “highly unlikely that a genocide charge could be sustained against the Ottoman government or its successor” based on the historical evidence, the Center’s statement under this interpretation is true and, thus, still not actionable….

The remaining three statements can be interpreted reasonably only as subjective opinions, rather than facts.