Statements Constituted Opinion, Not Facts/Defamation Complaint Against Syracuse Basketball Coach Dismissed for Failure to State a Cause of Action

[Reversed by the Court of Appeals]

Over a two-justice dissent, the Fourth Department affirmed the dismissal of a defamation action at the pre-answer stage, finding that the statements attributed to the defendant in the complaint constituted opinion, not fact.  The defendant (coach of the Syracuse University basketball team) characterized allegations made by plaintiff (accusing defendant’s friend and long-time assistant coach, Bernie Fine, of sexual improprieties) as lies. Taking the statements attributed to defendant as a whole, the Fourth Department determined they amounted to opinion and were therefore not actionable:

“Making a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation . . . Generally, only statements of fact can be defamatory because statements of pure opinion cannot be proven untrue” … .  “The issue at this early, preanswer stage of the litigation is whether plaintiff[s’] [complaint] sufficiently allege[s] false, defamatory statements of fact rather than mere nonactionable statements of opinion” … .  “Expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation” … .  Although the Court of Appeals has acknowledged that “[d]istinguishing between opinion and fact has ‘proved a difficult’ task” …, it has provided three factors for courts to consider in determining whether the alleged defamatory statements are actionable statements of fact or nonactionable statements of opinion ….

We agree with plaintiffs that defendant’s statements that they lied and that they did so out of a financial motivation are statements of fact when viewed in light of the first two factors set forth in Mann, i.e., those statements use specific language that “has a precise meaning which is readily understood” and are “capable of being proven true or false” ….  We note in particular that, when defendant was asked during the syracuse.com interview what plaintiff’s “possible motivation would be to tell his disturbing story at this time,” he responded that plaintiff was “trying to get money.  He’s tried before.  And now he’s trying again.”  Although that statement may be interpreted as implying that defendant knew facts that were not available to the reader…, we are nevertheless mindful that we “must consider the content of the communication as a whole, as well as its tone and apparent purpose and in particular should look to the over-all context in which the assertions were made and determine on that basis whether the reasonable reader would have believed that the challenged statements were conveying facts about . . . plaintiff” … .  Furthermore, we must “avoid[] the ‘hypertechnical parsing’ of written and spoken words for the purpose of identifying ‘possible fact[s]’ that might form the basis of a sustainable libel action” … .

Defendant’s statements also must be viewed in light of the third factor set forth in Mann, i.e., “whether either the full context of the communication in which the statement[s] appear[] or the broader social context and surrounding circumstances are such as to signal . . . readers or listeners that what is being read or heard is likely to be opinion, not fact” … .  Defendant additionally stated in the interview with syracuse.com:  “So, we are supposed to do what? Stop the presses 26 years later?  For a false allegation?  For what I absolutely believe is a false allegation?  I know [plaintiff is] lying about me seeing him in his hotel room.  That’s a lie.  If he’s going to tell one lie, I’m sure there’s a few more of them . . . I have never been in Bernie Fine’s hotel room in my life . . . Now, could I have once . . . one time?  I have a pretty good recollection of things, but I don’t ever recollect ever walking into Bernie Fine’s hotel room.  Ever.”  In his interview with ESPN, defendant stated:  “I know this kid, but I never saw him in any rooms or anything . . . It is a bunch of a thousand lies that [plaintiff] has told.  You don’t think it is a little funny that his cousin . . . is coming forward? . . . He supplied four names to the university that would corroborate his story.  None of them did . . . [T]here is only one side to this story.  He is lying.”

We conclude that defendant’s statements demonstrate his support for Fine, his long-time friend and colleague, and also constitute his reaction to plaintiff’s implied allegation, made days after Penn State University fired its long-term football coach, that defendant knew or should have known of Fine’s alleged improprieties.  We therefore conclude that the content of the statements, together with the surrounding circumstances, “ ‘are such as to signal . . . readers or listeners that what is being read or heard is likely to be opinion, not fact’ ”… . Davis and Lang v Boeheim…, 836, 4th Dept 10-4-13