Metropolitan News-Enterprise


Monday, April 27, 2009


Page 1


Court: Radio Talk Show Host’s Statements Not Actionable

Panel Concludes Reasonable Listeners Would Consider Comments Opinion


By SHERRI M. OKAMOTO, Staff Writer


The Ninth U.S. Circuit Court of Appeals Friday upheld the dismissal of a defamation action against radio host Tom Martino and his nationally syndicated consumer advocacy talk show program, “The Tom Martino Show.”

Affirming the decision by U.S. District Court Judge Anna J. Brown of the District of Oregon granting Martino and Westwood One Inc.’s special motion to strike, the panel held Martino’s on-air statements to a frustrated consumer during the call-in portion of the show were non-actionable opinion.

The case arose after consumer Melissa Feroglia called Martino’s radio show—which seeks to aid frustrated consumers with their problems—to complain about a personal watercraft she had purchased from John and Susan Gardner, the proprietors of Mt. Hood Polaris in Boring, Ore.

During the broadcast, Feroglia told Martino she was experiencing overheating problems with her watercraft and had taken it back to the Gardner’s Polaris dealership for repairs. She said John Gardner had written out an invoice saying the dealership would buy back the watercraft, but later refused to honor it, claiming the machine had been repaired.

Feroglia said she had asked if the watercraft had been tested to ensure it was running properly, and two hours later was informed that “it works great.”

Martino then responded: “Yeah, they’re just, yeah, they’re just lying to you.”

After Feroglia disclosed that she did not have a copy of the alleged invoice, Martino asked if a dealership employee with whom Feroglia had spoken would “admit to us that they…went back on their word.”

One of the radio show’s producers called Mt. Hood Polaris and spoke to an individual identified on-air as the “general manager” and reported that he was told Feroglia would have to contact the watercraft’s manufacturer, Polaris Industries.

Martino then said “Polaris sucks,” adding that the manufacturer had told him Feroglia would have to “go through the dealer,” Mt. Hood Polaris.

“Mt. Hood Polaris, Polaris Industries equals sucks,” Martino declared, telling listeners:

“I urge you to let them know you will never buy a Polaris product knowing that they treat people like this.”

The program was broadcast live on KHOW in Denver, and later rebroadcast on KEX in Portland, Ore.

The Gardners and Mt. Hood Polaris filed suit against Martino and Westwood One Inc.—the provider of the broadcast—alleging claims for defamation, false light invasion of privacy, intentional interference with economic relations, and intentional interference with prospective economic advantage.

Martino and Westwood One removed to federal court on the basis of diversity and federal question jurisdiction, and moved to strike all the claims pursuant to Oregon’s anti-SLAPP law.

Magistrate Judge Dennis James Hubel recommended granting the motion, finding Martino’s statements were not defamatory as a matter of law. Brown adopted his recommendation and dismissed the action without prejudice.

On appeal, Judge Consuelo B. Marshall explained that if a reasonable fact finder could not conclude that an allegedly defamatory statement implied an assertion of objective fact, that statement is protected by the First Amendment.

Marshall reasoned that Martino’s show contained “many of the elements that would reduce the audience’s expectation of learning an objective fact: drama, hyperbolic language, an opinionated and arrogant host, and heated controversy.”

As Martino’s statements were made in reliance on facts outlined by Feroglia in the minutes preceding his comments, Marshall concluded no reasonable listener would have considered them anything more than the host’s interpretation of the facts equally available to him and to the audience.

Marshall emphasized that the defamation analysis did not turn on whether Feroglia’s story was incorrect, but whether Martino’s reliance was reasonable.

“It would be unreasonable to require a speaker to determine the actual truth or falsity of every fact the speaker relies on before stating his or her opinion,” she wrote. Even if Feroglia’s narration of the facts had been false, “given the nature of talk shows, such as his,” Martino had not been negligent or unreasonable in relying on Feroglia’s story, Marshall said.

“[P]rior investigation is not required in the context of a radio show that takes live calls on the air,” the jurist added, noting that the plaintiffs had been given an opportunity to call in to the program and explain their version of events, but had declined to do so.

Marshall further reasoned that Martino’s use of “two loose, hyperbolic statements” as a “vigorous epithet”—the two utterances of the word “sucks”—would be understood as “the type of obvious exaggeration generally employed on Martino’s program…not false factual accusations.”

She also concluded that Martino’s statements urging listeners not to buy Polaris products were also protected statements of opinion, which was fatal to the plaintiffs’ claims for intentional interference with economic relations and prospective economic advantage.

Judges Harry Pregerson and Stephen Reinhardt joined Marshall in her opinion.

Linda L. Marshall of Lake Oswego, Ore. represented the Gardners and Mt. Hood Polaris. She said her clients were “disappointed” in yesterday’s ruling, but that she doubted they would seek further review.

The attorney told the MetNews that “some of the comments made by the judge in the opinion would suggest…if you’re a radio host, you have a little bit more leeway in terms of what you say.” But she emphasized that her client’s had suffered “a substantial amount of loss of income” as a result of the broadcast.

Portland, Ore. attorney Charles F. Hinkle of Stoel Rives LLP represented Martino and Westwood One. He praised yesterday’s ruling as an “important application of the SLAPP statute,” and an “emphatic upholding of free speech principles in the context of talk radio.”

The case is Gardner v. Martino, 06-35437.


Copyright 2009, Metropolitan News Company