IMMUNO, A.G., APPELLANT, v. JAN MOOR-JANKOWSKI, RESPONDENT.
77 N.Y.2d 235, 567 N.E.2d 1270, 566 N.Y.S.2d 906 (1991).
January 15, 1991


1 No. 264

Decided January 15, 1991


This opinion is uncorrected and subject to revision before publication in the New York Reports.

Raymond S. Fersko, Anders R. Sterner, Mitchell Lapidus and Jonathan W. Lubell, NY City, for Appellant.
. Philip A. Byler, NY City, for Respondent.
Henry R. Kaufman, NY City, for World Wildlife Fund, et al.
Arthur N. Eisenberg and Kenneth P. Norwick, NY City, for New York Civil Liberties Union
Laura M. Mattera, NY City, for Sierra Club, et al.
Floyd Abrams, NY City, for Adelphi University, et al.
amici curiae.

KAYE, J.:

One year ago, applying what appeared to be settled law, we affirmed the dismissal of plaintiff's libel action against the editor of a scientific journal, essentially for his publication of a signed letter to the editor on a subject of public controversy. We concluded that there was no triable issue of fact as to the falsity of the threshold factual assertions of the letter, that--beyond those threshold factual assertions--the letter writer's statements of opinion were entitled to the absolute protection of the State and Federal constitutional free speech guarantees, and that charges of defendant's deliberate incitement to have a defamatory letter published lacked factual foundation (Immuno A.G. v Moor-Jankowski, 74 NY2d 548).

On plaintiff's petition, the United States Supreme Court granted certiorari, vacated our judgment, and remanded the case for further consideration in light of Milkovich v Lorain Journal Co. (497 US ____, 110 SCt 2695), Decided June 21, 1990. For the reasons stated below, we adhere to our determination that defendant's summary judgment motion was properly granted and the complaint dismissed, premising our decision on independent state constitutional grounds as well as the federal review directed by the Supreme Court.

I.

This libel action arises out of a letter to the editor published in the Journal of Medical Primatology in December 1983. The letter was written by Dr. Shirley McGreal as Chairwoman of the International Primate Protection League (IPPL), an organization known for its vigorous advocacy on behalf of primates, particularly those used for biomedical research. Defendant Dr. J. Moor-Jankowski, a professor of medical research at New York University School of Medicine and director of the Laboratory for Experimental Medicine and Surgery in Primates of the New York University Medical Center, is co-founder and editor of the Journal.

The subject of McGreal's letter (reprinted at 145 AD2d 118-120) was a plan by plaintiff, Immuno A.G.--a multinational corporation based in Austria that manufactures biologic products derived from blood plasma--to establish a facility in Sierra Leone, West Africa for hepatitis research using chimpanzees. Voicing the concerns of IPPL, McGreal's letter was critical of Immuno's proposal on a number of grounds: (1) that the motivation for the plan was presumably to avoid international policies or legal restrictions on the importation of chimpanzees, an endangered species; (2) that it could decimate the wild chimpanzee population, as capture of chimpanzees generally involved killing their mothers, and it was questionable whether experimental animals could be returned to the wild, as plaintiff proposed; and (3) that returning the animals to the wild could well spread hepatitis to the rest of the chimpanzee population. McGreal stated that the current population of captive chimpanzees should be adequate to supply any legitimate requirements.

The letter was prefaced by an Editorial Note written by defendant that set out its background. Identifying McGreal as Chairwoman of IPPL, the Note stated that the Journal had received the initial version of the letter in January 1983 and had submitted it to plaintiff for comment or reply.[n 1] Plaintiff had acknowledged receipt of defendant's letter in February, offering no comment but that it was referring the matter to its New York lawyers. Thereafter, plaintiff's lawyers wrote that the statements were inaccurate, unfair and reckless, and requested the documents upon which the accusations were based, threatening legal action if the letter were printed before plaintiff had a meaningful opportunity to reply. The Editorial Note went on to state that the editors had advised plaintiff's attorneys that they should obtain the documentation directly from McGreal, and extended the period for plaintiff's reply by two months. The letter was published nearly a year after its receipt. In the meantime, articles had appeared in the Austrian press apparently confirming much of what McGreal had written, and defendant received no further word from plaintiff or its lawyers.

In addition to the letter that is the focus of contention, plaintiff complains that it was defamed by comments made by defendant quoted in an article entitled "Loophole May Allow Trade in African Chimps" that appeared in the New Scientist magazine shortly before McGreal's letter was published. Defendant is quoted as saying that the supply of captive chimpanzees was sufficient for research, describing plaintiff's attempts to circumvent controls on endangered species as "scientific imperialism," and warning that they will "backfire on people like me involved in the bona fide use of chimpanzees and other primate animals" for research.

In December 1984, plaintiff commenced this lawsuit against Moor-Jankowski and seven other defendants, including McGreal and the publishers and distributors of the New Scientist and the Journal of Medical Primatology, and it has since been vigorously litigated. By now, all the defendants except Moor-Jankowski have settled with plaintiff for what the motion court described as "substantial sums," and the complaint has been dismissed as to them. After extensive discovery--his own deposition conducted over 14 days--defendant moved for summary judgment. Supreme Court granted the motion to the extent of dismissing a claim for prima facie tort. It denied the motion as to the defamation claims, ruling that the statements at issue were statements of fact and, regardless of whether plaintiff was a public figure, there were triable issues of fact concerning whether defendant acted with actual malice in making or publishing the statements.

On defendant's appeal, the Appellate Division unanimously reversed Supreme Court's judgment (insofar as appealed from), granted defendant's motion, and dismissed the complaint (145 AD2d 114). The court held that all of the comments attributed to defendant in the New Scientist article were expressions of opinion that could not, as a matter of law, support an action for defamation. As to the McGreal letter, the Appellate Division held that for the most part it too was a constitutionally protected expression of opinion. To the extent there were (in the court's view) statements of a factual nature, the Appellate Division examined each statement meticulously, and concluded from the voluminous record that plaintiff had failed to adduce evidence of falsity. We now affirm, adopting without further elaboration our prior conclusion as to the lack of factual foundation for the deliberate incitement charges, and concentrating our analysis on the substance of the challenged statements.

II.

Our analysis first focuses on Milkovich, in compliance with the Supreme Court's direction on remand.

As the Supreme Court wrote, Milkovich leaves in place all previously existing Federal constitutional protections, including the "breathing space" which "freedoms of expression require in order to survive" (497 US at ____, 110 SCt at 2705, [quoting Philadelphia Newspapers, Inc. v Hepps, 475 US 767, 772]), and specifically including immunity for statements of opinion relating to matters of public concern that do not contain a provably false factual connotation (497 US at ___, 110 SCt at 2706; Philadelphia Newspapers, Inc. v Hepps, supra). Milkovich, however, puts an end to the perception--as it turns out, misperception--traceable to dictum in Gertz v Robert Welch, Inc. (418 US 323, 339-340) that, in addition to all other Federal constitutional protections, there is a "wholesale defamation exemption for anything that might be labeled 'opinion.'" (497 US at ___, 110 SCt at 2705, supra.)

Thus, statements of opinion relating to matters of public concern are today no less subject to constitutional protection, but speech earns no greater protection simply because it is labeled "opinion."

The key inquiry is whether challenged expression, however labeled by defendant, would reasonably appear to state or imply assertions of objective fact. In making this inquiry, courts cannot stop at literalism. The literal words of challenged statements do not entitle a media defendant to "opinion" immunity or a libel plaintiff to go forward with its action. In determining whether speech is actionable, courts must additionally consider the impression created by the words used as well as the general tenor of the expression, from the point of view of the reasonable person.

As often happens, a court's application of stated rules to the facts before it illuminates the rules. In this case the exercise is especially instructive.

The Supreme Court in Milkovich reversed the Ohio court's judgment--in substance reached in the companion case Scott v News-Herald (25 Ohio St 3d 243, 496 NE2d 699)--dismissing plaintiff's defamation complaint. The state court, applying the widely-used four-part Ollman formula (Ollman v Evans, 750 F2d 970 [DC Cir], cert denied 471 US 1127 [see especially, Rehnquist, J., dissenting]) for separating immune opinion from actionable fact, had looked first to the article's specific words as commonly understood, and second to whether the statements were verifiable, and it concluded that on both scores plaintiff would have stated a valid cause of action. The plain import of the challenged statements was that plaintiff had committed perjury, a verifiable fact.

But the Ohio court went on to dismiss the complaint because of the remaining two Ollman factors (the full context of the article in which the challenged statements appear, and the broader social context or setting surrounding the communication).[n 2] The court was persuaded from the language of the article and its context that the reasonable reader would recognize it as no more than the writer's opinion on a subject of public concern, and therefore constitutionally protected. "Examining the article in its larger context * * * the large caption 'TD Says' * * * would indicate to even the most gullible reader that the article was, in fact, opinion" (Scott v News-Herald, 25 Ohio St 3d at 252, 496 NE2d at 707, supra) and, because the article appeared on the sports page--a "traditional haven for cajoling, invective, and hyperbole"--the challenged statements by the sports columnist likely would not have been read as charging the crime of perjury in judicial hearings (25 Ohio St 3d at 253-254, 496 NE2d at 708).

The United States Supreme Court, looking at basically the same first two Ollman factors, determined that a reasonable factfinder could conclude that the challenged statements in Milkovich implied an assertion that petitioner had perjured himself in a judicial proceeding, and the connotation that petitioner had committed a felony was sufficiently factual to be susceptible of being proved true or false. Those were the same conclusions that had been reached by the Ohio court.

The critical difference lay in the Supreme Court's treatment of the second two Ollman factors--the immediate and broader context of the article-- reduced essentially to one: type of speech. Moreover, the Court made clear that by protected type of speech it had in mind the rhetorical hyperbole, vigorous epithets, and lusty and imaginative expression found in Hustler Magazine v Falwell (485 US 46 [ad parody]); Letter Carriers v Austin (418 US 266 [labor dispute]), and Greenbelt Cooperative Publishing Assn Inc. v Bresler (398 US 6 [heated real estate negotiation])--all instances where the Court had determined that the imprecise language and unusual setting would signal the reasonable observer that no actual facts where being conveyed about an individual.

In Milkovich, the Supreme Court resolved "type of speech" considerations in two sentences: "This is not the sort of loose, figurative or hyperbolic language which would negate the impression that the writer was seriously maintaining petitioner committed the crime of perjury. Nor does the general tenor of the article negate this impression." (Milkovich v Lorain Journal Co., 497 US at ____, 110 SCt at 2707, supra). In this analysis, the Supreme Court said nothing of either the conjectural language of the disputed article, or the format of the piece--a signed editorial column appearing on the sports page. Both those considerations occupied the Ohio court and the dissent at length (see, Milkovich v Lorain Journal Co., supra, at ____, 110 SCt, at 2710-2713 [Brennan, J., dissenting]), ultimately persuading those Judges that no reasonable reader would have regarded the challenged assertions, in their context, as factual. The Supreme Court's failure to mention either point becomes particularly telling when its writing is laid against the state court opinion and Justice Brennan's dissent.

Thus, if not alone from the Supreme Court's statement of the governing rules, then from its application of those rules to the facts of Milkovich, it appears that the following balance has been struck between First Amendment protection for media defendants and protection for individual reputation: except for special situations of loose, figurative, hyperbolic language, statements that contain or imply assertions of provably false fact will likely be actionable.

We next apply Milkovich to the facts before us.

In general, as previously observed, it is hard to conceive that any published statement could be without some factual grounding. In particular, we recognized that the McGreal letter was provoked by a certain state of affairs, that it set out limited points of factual reference, and that to the extent that letter contained defamatory factual statements about plaintiff, they would be actionable if false (74 NY2d at 559, supra).

Unlike the Supreme Court's characterization of the analysis done in Scott v News-Herald, we did not, and do not, hold that the assertions of verifiable fact in the McGreal letter were overridden or "trumped" by their immediate or broader context and therefore automatically and categorically protected as opinion. We did not, and do not, hold that all letters to the editor are absolutely immune from defamation actions, or that there is a wholesale exemption for anything that might be labeled "opinion."

But a libel plaintiff has the burden of showing the falsity of factual assertions (see, Philadelphia Newspapers, Inc. v Hepps, 475 US 767, 776, supra; Steinhilber v Alphonse, 68 NY2d 283; Silsdorf v Levine, 59 NY2d 8, cert denied 464 US 831), and we concluded that plaintiff did not meet that burden. Given the thorough Appellate Division review of the factual assertions in issue, there hardly seemed a need for repetition of the charges and the relevant evidence. We noted simply that the factual review undertaken by the Appellate Division established that plaintiff had raised no triable issue as to the falsity of any of the threshold factual assertions of the McGreal letter (Immuno A.G. v Moor-Jankowski, 74 NY2d 548, 559, supra).

We continue to believe that the Appellate Division review, to the extent it identified assertions of fact and concluded that such assertions had not been shown to be false, established that no triable issue of fact existed. While there still appears no need for us to restate those extensive findings, application of Milkovich to what plaintiff characterizes as the "core libel," or "core premise," or "core factual statement" of the IPPL letter illustrates the enduring soundness of that analysis.

According to plaintiff, the core premise of the letter is as follows: "Release of chimpanzee 'veterans' of hepatitis non-A, non-B research would be hazardous to wild populations, as there is no way to determine that an animal is definitely not a carrier of the disease."

Applying Milkovich, we discern two assertions of fact, one express and one implied. First, the statement asserts that there is no scientific method for determining if a chimpanzee exposed to the non-A, non-B virus is not a carrier of the disease. Second, the statement implies that plaintiff will release possible carrier-chimpanzees who may endanger the wild population. Both assertions--the existence of a scientific test to determine carrier status, and plaintiff's plans--are verifiable. Finally, the "type of speech," unlike Falwell, Letter Carriers or Greenbelt, is restrained, the statements are seriously maintained, and they have an apparent basis in fact.

Though this core premise could be actionable, plaintiff's complaint was nonetheless properly dismissed because, on the record presented, it was apparent that plaintiff did not satisfy its burden of proving those statements false (see, 145 AD2d 139-141; Philadelphia Newspapers, Inc. v Hepps, 475 US at 767, supra; Milkovich v Lorain Journal Co., 497 US at ___, 110 SCt at 2704, supra).

As for the express assertion of the absence of a test, plaintiff has pointed us to no proof establishing a scientific test in the relevant period that could conclusively determine the carrier state in chimpanzees or, more specifically, could definitely rule out that a veteran chimpanzee was not a carrier of the virus. When considered against the extensive record, plaintiff's effort to establish that there was a fail-proof test, by weaving together isolated fragments of the testimony of various experts (including defendant), simply does not satisfy its legal burden.

To the contrary, what is apparent from the record is that in the relevant period there was an ongoing process of discovery and debate centering on the very existence of a carrier state of the virus, all of which was made even more inconclusive by ambiguity as to precisely when relevant technology was acquired. When asked if it was possible that certain tests for detecting the carrier state would yield negative results even though the chimpanzee carried the virus, plaintiff's Dr. Johann Eibl replied "[t]here is no proof on that." Finally, even if the express assertion of the "core premise" had been shown to be false, that assertion would not itself libel plaintiff, because it "does not stat[e] actual facts about [that] individual." (Milkovich v Lorain Journal Co., 497 US at ___, 110 SCt at 2706, supra; see also, Don King Productions, Inc. v Douglas, 742 FSupp 778, 784 [SDNY]).

Similarly, as the Appellate Division concluded, there was no proof of falsity of the implied assertion of fact--that plaintiff in the relevant period planned to release chimpanzees with no means of definitely determining that they were not carriers of the disease, thus endangering the wild populations. It is clear from the record that plaintiff, in 1983, was considering the option of rehabilitating chimpanzees used at the projected Sierra Leone facility, for return to a natural state (see, 145 AD2d at 136). With no proof of the falsity of the express assertion that there was a conclusive test of carrier status available in 1983, it follows that there was also no proof of the falsity of the implied assertion that plaintiff planned to return its veteran test animals with no means of definitely determining that they were not hepatitis carriers.

As an additional matter, the Appellate Division considered infectiousness as well as carrier status (the "core premise" refers only to carriers [see, 145 AD2d at 139]). Although there was testimony that infectiousness might be tested by inoculating a healthy chimpanzee with the blood of a potentially infected animal to see whether the healthy animal developed hepatitis symptoms, plaintiff produced no proof that it would in fact be implementing that procedure at its facility. That procedure was described by Dr. Alfred Prince, a leading expert, as "expensive," "laborious" and "wasteful," in that it involved the deliberate infection of healthy chimpanzees to test the infectiousness of animals that had been exposed to the virus. As the Appellate Division noted, "McGreal can hardly be faulted for not assuming that Immuno would necessarily perform the inoculation procedure on every one of the many chimps it intended to return to the wild." (145 AD2d at 140.)

In sum, our "further consideration in light of Milkovich" (479 US ____, 110 SCt 2695, supra), using the core premise as illustrative, confirms our conclusion that, on this factual record, summary judgment was properly granted to defendant.[n 3]

III.

We next proceed to a State law analysis, and also conclude on this separate and independent ground that the complaint was correctly dismissed.

A.

It has long been recognized that matters of free expression in books, movies and the arts generally, are particularly suited to resolution as a matter of state common law and state constitutional law, the Supreme Court under the Federal Constitution fixing only the minimum standards applicable throughout the Nation, and the state courts supplementing those standards to meet local needs and expectations (see, e.g., Arcara v Cloud Books, Inc., 68 NY2d 553, 557-558). Indeed, striking an appropriate balance "between the need for vigorous public discourse and the need to redress injury to citizens wrought by invidious or irresponsible speech" (Milkovich v Lorain Journal Co., 479 US at ___, 110 SCt at 2703, supra), is consistent with the traditional role of state courts in applying privileges, including the opinion privilege, which have their roots in the common law (see, Immuno A.G. v J. Moor-Jankowski, 74 NY2d at 555, supra; Cole Fisher Rogow, Inc. v Carl Ally, Inc., 25 NY2d 943; Julian v American Business Consultants, Inc., 2 NY2d 1; Hoeppner v Dunkirk Printing Co., 254 NY 95, 99).

This State, a cultural center for the Nation, has long provided a hospitable climate for the free exchange of ideas (Beach v Shanley, 62 NY2d 241, 255-256 [Wachtler, J., concurring]). That tradition is embodied in the free speech guarantee of the New York State Constitution, beginning with the ringing declaration that "[e]very citizen may freely speak, write and publish * * * sentiments on all subjects." (NY Const, art 1, 8.) Those words, unchanged since the adoption of the constitutional provision in 1821, reflect the deliberate choice of the New York State Constitutional Convention not to follow the language of the First Amendment, ratified 30 years earlier, but instead to set forth our basic democratic ideal of liberty of the press in strong affirmative terms (see, Forkosch, Freedom of the Press: Croswell's Case, 33 Fordham L Rev 415 [1985]).

"The expansive language of our State constitutional guarantee (compare, NY Const, art I, 8, with US Const 1st Amend.), its formulation and adoption prior to the Supreme Court's application of the First Amendment to the States * * * the recognition in very early New York history of a constitutionally guaranteed liberty of the press * * * and the consistent tradition in this State of providing the broadest possible protection to 'the sensitive role of gathering and disseminating news of public events' * * * all call for particular vigilance by the courts of this State in safeguarding the free press against undue interference." (O'Neill v Oakgrove Construction, Inc., 71 NY2d 521, 528-529.)

Thus, whether by the application of "interpretive" (e.g., text, history) or "noninterpretive" (e.g., tradition, policy) (see, People v P.J. Video, 68 NY2d 296, 302-303, cert denied 479 US 1091) factors, the "protection afforded by the guarantees of free press and speech in the New York Constitution is often broader than the minimum required by" the Federal Constitution (O'Neill v Oakgrove Construction, Inc., 71 NY2d at 529, n 3, supra).

Had defendant initially presented the issue as one of independent state constitutional law, instead of as an undenominated argument premised on the assumed identity of State and Federal law, it might have been resolved on that basis a year ago. The intervening occurrence of Milkovich, however, does not cause us to change our explicit conclusion that the case was correctly analyzed and decided in accordance with the core values protected by the State Constitution (see, 74 NY2d at 560, supra; see also, People v Class, 67 NY2d 431). Several considerations impel us to restate those conclusions separately now, underscoring that we decide this case on the basis of State law independently, and that in our State law analysis reference to Federal cases is for the purpose of guidance only, not because it compels the result we reach (see, Michigan v Long, 463 US 1032, 1038 n 4, 1041-1042).

First and foremost, we look to our State law because of the nature of the issue in controversy--liberty of the press--where this State has its own exceptional history and rich tradition (see, discussion at pp 16-17, supra). While we look to the unique New York State constitutional text and history, our analysis also is informed by the common law of this State. It has long been our standard in defamation actions to read published articles in context to test their effect on the average reader, not to isolate particular phrases but to consider the publication as a whole (see, e.g., James v Gannett Co., Inc., 40 NY2d 415, 419-420; Julian v American Business Consultants, Inc., 2 NY2d 1, 14-15, supra).

Second, we are mindful not only of our role in the Federal system but also of our responsibility to settle the law of this State. As has been observed, Milkovich may leave an area of uncertainty for future litigation, with courts and authors in the interim lacking clear guidance regarding the opinion privilege; while all of the Supreme Court Justices agreed on the rule, they differed sharply as to how the rule should be applied. If we again assume the identity of State and Federal law, and assume that Milkovich has effected no change in the law, we perpetuate the uncertainty in our State law. Moreover, we are concerned that--if indeed "type of speech" is to be construed narrowly--insufficient protection may be accorded to central values protected by the law of this State. We would begin the analysis--just as we did previously in this case, and just as we did in Steinhilber (68 NY2d at 293, supra)--with the content of the whole communication, its tone and apparent purpose. That is a clear and familiar standard that in our view properly balances the interests involved. It has been consistently applied throughout the State for several years, following State common law and following Steinhilber.

Finally, the case comes to us in the posture of a summary judgment motion, which searches the record and presents only issues of law. The State law issues have now been fully briefed, and there are no factual questions to be resolved. As the Supreme Court noted in Milkovich, the Ohio court remains free, on remand some 15 years after the challenged article, to address State law issues (497 US at ____, 110 SCt 2702 n 5, supra); were this case to be heard by the Supreme Court and reversed, that would be equally true on a further remand to this Court. In view of the costly,[n 4] sizeable record already amassed, including hundreds of pages of briefs, no purpose is served by compelling these parties, on this record and these briefs, to consider another trip to Washington, with the prospect that State law review before this Court would ultimately be available.

None of the concerns expressed in the Simons concurrence persuade us that the requested State law review should be deferred or denied.

Any independent State law activity in one sense can frustrate the pronouncement of Federal law. In another sense, however, state constitutional law review--which is a responsibility of state courts and a strength of our Federal system--advances the process of pronouncing Federal law; a state can act as a "laboratory" in more ways than one, as indeed Justice Brandeis recognized in New State Ice Co. v Liebmann in his reference to state statutes (285 US 262, 311 [dissenting]; see also, Batson v Kentucky 476 US 79, especially p 82, n 1). By the same token, Federal cases, including Supreme Court cases--even Milkovich itself--can act as a source of guidance for state courts in formulating state law, even though interpretation of those cases in state law decisions reached on adequate and independent state grounds will be unreviewable by the Supreme Court (see, Michigan v Long, 463 US at 1041, supra).

In analyzing cases under the State Constitution, this Court has not wedded itself to any single methodology, recognizing that the proper approach may vary with the circumstances (see, e.g., Rivers v Katz, 67 NY2d 485 [primacy method]; People v Stith, 69 NY2d 313, 316 n 7 [dual method]; Arcara v Cloud Books, Inc., 68 NY2d 553 [interstitial method]). Several times recently we have pointedly rested our decisions on both Federal and independent State constitutional grounds (see, e.g., O'Neill v Oakgrove Construction, Inc., 71 NY2d at 528, supra; People v Stith, supra).

That analysis is particularly appropriate here because of the unusual procedural posture of the case. The Supreme Court has specifically directed us to consider the case in light of Milkovich, and we comply with that direction, as courts throughout the nation have done in similar circumstances (see, e.g., People v Duncan, 124 Ill2d 400, 530 NE2d 423[1988]). But that does not compel us to ignore our prior decision or the arguments fully presented on remand that provide an alternative basis for resolving the case (see, Hellman, Granted, Vacated, and Remanded--Shedding Light on a Dark Corner of Supreme Court Practice, 67 Judicature 389, 394-395 [1984]).[n 5] Turning our back on the now developed, controlling State law issues would be no service to the Supreme Court, or the litigants, or the law of this State.

We therefore proceed to resolve this case independently as a matter of State law, concluding that--as we previously held in Immuno--the standard articulated and applied in Steinhilber furnishes the operative standard in this State for separating actionable fact from protected opinion.

B.

Letters to the editor, unlike ordinary reporting, are not published on the authority of the newspaper or journal. In this case, for instance, defendant's prefatory Editorial Note signaled that the letter was to be given only the weight its readers chose to accord McGreal's views; such reservations may be generally understood even when letters are not accompanied by any editorial note. Thus, any damage to reputation done by a letter to the editor generally depends on its inherent persuasiveness and the credibility of the writer, not on the belief that it is true because it appears in a particular publication.

Significantly, for many members of the public, a letter to the editor may be the only available opportunity to air concerns about issues affecting them. A citizen troubled by things going wrong "should feel free to 'write to the newspaper': and the newspaper should be free to publish [the] letter. It is often the only way to get things put right." (Slim v Daily Tel. [1968] 1 All ER 497, 503, quoted in Pollnow v Poughkeepsie Newspapers, Inc., 107 AD2d 10, 16 [Titone, J.], affd on other grounds 6-7 NY2d 778.) The availability of such a forum is important not only because it allows persons or groups with views on a subject of public interest to reach and persuade the broader community but also because it allows the readership to learn about grievances, both from the original writers and from those who respond, that perhaps had previously circulated only as rumor; such a forum can advance an issue beyond invective. Finally, at the least, the public may learn something, for better or worse, about the person or group that wrote such a letter (see, Franklin, Libel and Letters to the Editor: Toward an Open Forum, 57 U Colo L Rev 651, 663-664 [1986]). Thus, in determining how the average person would view McGreal's letter, we take into account that it is a letter to the editor and that "[t]he common expectation of a letter to the editor is not that it will serve as a vehicle for the rigorous and comprehensive presentation of factual matter but as one principally for the expression of individual opinion." (145 AD2d at 129.)

Passing from the broader social setting to the immediate context of the letter, we note that the common expectation regarding letters to the editor has particular pertinence here.

As the Appellate Division observed, the Journal of Medical Primatology is directed to a highly specialized group of readers--medical doctors, researchers and the medical and science libraries of academic institutions. The average reader is thus likely not a novice in the field of medical primatology, but "brings a well-developed understanding of the issues facing biomedical researches using primates as research subjects." (145 AD2d at 129.) The prefatory Note additionally called particular attention to the circumstances surrounding the letter, pointing up that this was McGreal's view, and that plaintiff's attorneys considered her statements to be "wholly inaccurate and reckless" and "not a fair comment" on plaintiff's proposed project.

The letter itself related to a public controversy regarding use of live animals belonging to endangered species, including chimpanzees, in animal experimentation and research. McGreal (a known animal rights activist) and IPPL (whose very name broadcasts its point of view) were fully identified to readers of the letter. The letter made clear that its purpose was to voice the conservationist concerns of this partisan group in order "to draw this situation to the attention of interested parties." Thus, like the broader social setting of McGreal's letter, the immediate context of the letter, together with the prefatory Note, would induce the average reader of this Journal to look upon the communication as an expression of opinion rather than a statement of fact, even though the language was serious and restrained.

Given the purpose of court review--to determine whether the reasonable reader would have believed that the challenged statements were conveying facts about the libel plaintiff--we believe that an analysis that begins by looking at the content of the whole communication, its tone and apparent purpose (Steinhilber v Alphonse, 68 NY2d at 293, supra) better balances the values at stake than an analysis that first examines the challenged statements for express and implied factual assertions, and finds them actionable unless couched in loose, figurative or hyperbolic language in charged circumstances (see, generally, Note, Fact and Opinion in Defamation: Recognizing the Formative Power of Context, 58 Fordham L Rev 761 [1990]). A media defendant surely has no license to misportray facts; false statements are actionable when they would be perceived as factual by the reasonable person. But statements must first be viewed in their context in order for courts to determine whether a reasonable person would view them as expressing or implying any facts.

The difference is more than theoretical. In the present case, for example, we conclude that what plaintiff now characterizes as the "core premise" of the IPPL letter both expressed and implied statements of fact that, if shown to be false (which they were not), would be actionable. That is true as well of other factual reference points considered by the Appellate Division and held to be lacking in demonstrated falsity. Our State law analysis of the remainder of the letter, however, would not involve the fine parsing of its length and breadth that might now be required under Federal law for speech that is not loose, figurative or hyperbolic (see, e.g., Unelko Corp. v Rooney, 912 F2d 1049 [9th Cir]). Isolating challenged speech and first extracting its express and implied factual statements, without knowing the full context in which they were uttered, indeed may result in identifying many more implied factual assertions than would a reasonable person encountering that expression in context.

We conclude that the body of the letter in issue communicated the accusations of a group committed to the protection of primates, and that the writer's presumptions and predictions as to what "appeared to be" or "might well be" or "could well happen" or "should be" would not have been viewed by the average reader of the Journal as conveying actual facts about plaintiff. It may well be, for example, that McGreal's statements regarding plaintiff's motivations--if studied long enough in isolation--could be found to contain implied factual assertions, but viewed as IPPL's letter to the editor, it would be plain to the reasonable reader of this scientific publication that McGreal was voicing no more than a highly partisan point of view.

Thus, we conclude that an approach that takes into account the full context of challenged speech, as previously set forth in Immuno and Steinhilber, accords with the central value of assuring "full and vigorous exposition and expression of opinion on matters of public interest." (Rinaldi v Holt, Rinehart & Winston, Inc., 42 NY2d 369, 384, cert denied 434 US 969.)

The public forum function of letters to the editor is closely related in spirit to the "marketplace of ideas" and oversight and informational values that compelled recognition of the privileges of fair comment, fair report and the immunity accorded expression of opinion. These values are best effectuated by according defendant some latitude to publish a letter to the editor on a matter of legitimate public concern--the letter's author, affiliation, bias and premises fully disclosed, rebuttal openly invited--free of defamation litigation. A publication that provides a forum for such statements on controversial matters is not acting in a fashion "at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected" (Garrison v Louisiana, 379 US 64, 75), but to the contrary is fostering those very values.

Finally, we reaffirm our regard for the particular value of summary judgment, where appropriate, in libel cases (see, Karaduman v Newsday, Inc., 51 NY2d 531, 545). Indeed, this is an additional ground for preferring the independent State law approach to one that might make summary disposition less likely (see, Milkovich v Lorain Journal Co. 497 US at ____, 110 SCt at 2698, supra; see also, Florida Medical Center, Inc. v New York Post Co., Inc., 568 So2d 454 [Fla Dist Ct App]). The chilling effect of protracted litigation can be especially severe for scholarly journals, such as defendant's, whose editors will likely have more than a passing familiarity with the subject matter of the specialized materials they publish. If required as to every line of a reader's expressed viewpoint to meet the standard of Chapadeau v Utica-Observer Dispatch, Inc. (38 NY2d 196), they may as a practical matter have little alternative to lengthy litigation or substantial settlement. In such instances, hypertechnical parsing of a possible "fact" from its plain context of "opinion" loses sight of the objective of the entire exercise, which is to assure that--with due regard for the protection of individual reputation--the cherished constitutional guaranty of free speech is preserved.[n 6]

Accordingly, upon reargument, following remand by the Supreme Court of the United States, we again conclude that the order of the Appellate Division should be affirmed, with costs.


F O O T N O T E S


1. The letter defendant actually sent to plaintiff enclosed the McGreal letter, noting that "if the allegations in her letter can be proved to us to be incorrect we will return the letter to Dr. McGreal declining its publication." It further noted "past results of interventions" by McGreal regarding animal exportation and experimentation programs in India, Bangladesh and elsewhere, and that "[i]t is the policy of the Journal to allow all the concerned parties to take a position in a controversial matter."

2. In Milkovich's action (Scott pursued a separate action on the same article), the Ohio Supreme Court--only shortly before Ollman was handed down--had actually reversed the summary judgment awarded to defendants, concluding that the statements in issue were factual assertions and not constitutionally protected opinion (Milkovich v News-Herald, 15 Ohio St 3d 292, 473 NE 2d 1191, cert denied 474 US 953). Only after Ollman did the Ohio Supreme Court dismiss the complaints--Scott's as well as Milkovich's--as protected opinion. From the case chronology it is obvious that the Ohio court considered the latter two Ollman factors were determinative.

3. In this section of the Opinion, we follow plaintiff's format, analyzing the "core premise" under Milkovich. Plaintiff additionally continues to press all of its prior defamation claims, and makes clear that its case is not limited to the core premise. While we believe that we have complied with the Supreme Court mandate by reviewing the express and implied factual assertions of the McGreal letter and New Scientist article as they were identified by the Appellate Division, it is impossible to state with complete certainty that some of the statements previously considered protected opinion, because of the language and format of the speech, would not now be viewed as implied assertions of fact. This may be an area of uncertainty left open by Milkovich (see, The Supreme Court, 1989 Term; Leading Cases, 104 Harv L Rev 219, 226-227 [1990]).

4. The affidavit of one of the original parties, dated September 3, 1986, indicates that the insurance company settled with plaintiff over her protest when legal costs exceeded several hundred thousand dollars.

5. As Professor Hellman indicates in this and his fuller treatment of the subject of Supreme Court orders of "grant, vacate and remand" (the "GVR") (see, The Supreme Court's Second Thoughts: Remand for Reconsideration and Denials of Review in Cases Held for Plenary Decisions, 11 Hastings Const L Q 5 [1983]), the GVR remains a mystery to most of the legal profession (id. at 5-6). In 90 cases he studied in which there was at least a surface inconsistency between the vacated judgment and the cited decision, the lower court in more than 60 adhered to its original ruling, reviewing the Supreme Court decision but upholding its own earlier judgment on some other ground (67 Judicature at 394-395, supra). There is no basis for the declaration that the Supreme Court here was "indicating its desire to pass on the issues and, as a matter of comity, remitted the case to us before ruling so that we might reconsider it in light of the intervening Milkovich decision." (Simons concurrence, p 9.) Moreover, the word "illegitimate" is taken wholly out of context from Bice, Anderson and the Adequate State Ground, 45 S Cal L Rev 750 [1972]) (concurrence, p 8). Indeed, the author of that article makes clear that foreclosing dual constitutional analysis in all circumstances "would prevent the legitimate efficiency gains that fully deciding the state and federal claims can provide * * * *" (Id. at 758.)

6. A few words are in order about the various concurrences. All of the concurrers joined unanimously in the first Immuno opinion (which invoked both the State and Federal constitutions as the basis for decision), they joined unanimously in the Steinhilber analysis beginning with the content of the whole communication, its tone and apparent purpose (68 NY2d at 293, supra), and they all now join unanimously in awarding summary judgment to defendant.

Judge Simons would affirm on Federal constitutional grounds alone, deferring the State constitutional issues that have been fully briefed and argued for a further remand by the United States Supreme Court. Judge Hancock also would affirm on Federal constitutional grounds alone. Unlike Judge Simons, however, he does not view dual constitutional analysis as "illegitimate" (see, e.g., People v Cintron, 75 NY2d 249, 259 [Hancock, J.]; People v Dietz, 75 NY2d 47, 50, n 1 [Hancock, J.]; Seawall Associates v City of New York, 74 NY2d 92, 115-116 [Hancock, J.]; O'Neill v Oakgrove Construction, Inc., 71 NY2d 521, 528-529 [Hancock, J.]; People v Stith, 69 NY2d 313, 316, fn [Hancock, J.]). Judge Titone agrees (Titone concurrence, p 1).

Because the Federal analysis is conclusive, Judges Simons and Hancock would decide this case on Federal law alone. Because the Federal analysis is inconclusive, Judge Titone would decide this case on State law alone. Judge Titone, however, would not decide the case on the basis of state constitutional law, as briefed and argued by the parties. Although he would reach "essentially the same conclusion that the majority has reached" (Titone concurrence, p 6), he would do so on the basis of State common law. Apart from the fact that defendant has not tendered his argument on this basis, the first Immuno opinion was expressly premised on State and Federal constitutional grounds. Even on a clean slate, this Court has not previously wedded itself to the primacy methodology (Titone concurrence, p 4), nor have we hesitated to recognize a constitutional right with its source in the common law (see, e.g., Rivers v Katz, 67 NY2d 485).

Among the possible approaches to the single result we all agree is correct--the concurrers have now put the full range of alternatives before the public--we continue to believe that the majority's choice best serves all of the interests at stake.


SIMONS, J. (concurring):

This case is before us on remand from the Supreme Court of the United States for reconsideration in view of its intervening decision in Milkovich v Lorain Journal Co. (497 US ___, 110 S Ct 2695, 111 L Ed2d). After reconsideration, the majority has affirmed an order granting summary judgment to defendant. I agree with it that judgment was properly awarded on federal grounds. In reconsidering the case, however, the majority has rendered an interpretation of Milkovich which is narrower than necessary to resolve the matter before us and one which appears, from statements in the Milkovich opinions, to be far more constricted than the Supreme Court intended. My purpose in writing is not to resolve these differences over the scope of the protection afforded by Milkovich. Only the Supreme Court can do that. My concern is that the Supreme Court will not have the opportunity to do so in this case because the majority has foreclosed review by also resting its decision on independent State grounds (see, Michigan v Long, 463 US 1032). I do not agree with the procedure followed, particularly in the circumstances of this case, and I find the majority's reasoning supporting the two theories inconsistent. Accordingly, I cannot join in the opinion of the Court.

I

In pre-Milkovich decisions, the federal and State courts had generally concluded that statements of opinion were protected from libel actions by the First Amendment. These holdings were based in large part on the statement of Justice Powell that "[u]nder the First Amendment 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" (Gertz v Robert Welch, Inc., 418 US 323, 339-340). Despite the sweep of that language, State and lower federal courts recognized that Gertz had not created a blanket exemption for defamatory words merely because they were labelled as "opinion" (see, Steinhilber v Alphonse, 68 NY2d 283, 289-292; Cianci v New Times Publishing Co., 639 F2d 54, 61, quoted in Milkovich, 497 US ____, 111 L Ed2d at 17). False factual accusations could easily be couched in the language of opinion. Thus, the courts quickly devised methods of distinguishing actionable statements of fact from non-actionable statements of opinion. The test was divided into various methods of determining whether the statements conveyed a precise meaning which could be characterized as true or false and, if the words were ambiguous, by resolving the ambiguity after an examination on the context in which the statements appeared (see, Ollman v Evans, 750 F2d 970, 976 cert denied 471 US 1127; Steinhilber v Alphonse, 68 NY2d 283, 292, supra).

The Supreme Court addressed the issue directly for the first time in Milkovich, holding that there is no separate constitutional privilege for statements that might be labeled "opinion". The Court recognized that statements on matters of public concern must be provable as false before they are actionable and that requires a determination of whether they are matters of opinion or fact. Matters of public concern which do not contain a "provably false factual connotation" receive full constitutional protection (id., p 18). Next, the Court recognized protection for statements that cannot "reasonably [be] interpreted as stating actual facts" about an individual (Hustler Magazine, Inc. v. Falwell, 485 US 46, 50). Avoiding literary definitions, the Court stated that prior caselaw required an examination of the "circumstances" in which the statement was made (Milkovich v Lorain Journal Co., supra, at 16; see, Hustler Magazine, Inc., supra; Greenbelt Cooperative Publishing Ass'n., Inc. v Bressler, 398 US 6, 13; Letter Carriers v Austin, 418 US 264, 284-286). This "assur[es] that public debate will not suffer for lack of 'imaginative expression' or the 'rhetorical hyperbole' which has traditionally added much to the discourse of our Nation" (Milkovich v Lorain Journal Co., supra, at 19).

It can be argued that the Milkovich decision did not change the law of defamation as it was previously applied by State and lower federal courts. Justice Brennan did not believe it had and it is notable that the majority did not take exception to his observation that the Court had merely restated the law "lower courts have been relying on for the past decade" (see, Milkovich v Lorain Journal Co., supra, at 21 [Brennan, J.]). His view is shared by others (see, e.g., The Supreme Court, 1989 Term; Leading Cases, 104 Harvard L. Rev. 219, 223). Justice Brennan's disagreement with the result was based simply upon the application of the rule, i.e., what a "reasonable reader" would have understood the statements in Milkovich to mean. The majority believed that the challenged statements could be interpreted as either stating or implying defamatory facts; Justices Brennan and Marshall believed that they could not.

II

The majority holds in the first part of its opinion, considering plaintiff's claim under the Federal Constitution, that summary judgment was properly granted to defendant. It then asserts that Milkovich creates "uncertainty" as to whether the "context" of a statement may be considered and interprets Milkovich as stating a rule which protects opinion only in "special situations" involving "loose, figurative, hyperbolic language" (opn, p 10). Thus, after resolving plaintiff's claim under the Federal Constitution, the majority reopens the issue with its interpretation as justification for its additional ruling on State constitutional grounds recognizing a greater importance for context.

Context is not controlling in this case, however, under either the majority's narrow view of Milkovich or our State rules. The Appellate Division, in a unanimous 27-page analysis of plaintiff's claims stated that, for the most part, the McGreal letter was a constitutionally protected expression of opinion. To the extent the Court identified unambiguous assertions of fact, it found that they had not been proven false - or indeed were demonstrably true - and therefore ruled that plaintiff failed to meet its burden of proof (see, Philadelphia Newspapers, Inc. v Hepps, 475 US 767, 776). We accepted its conclusion when the case was first before us and the majority again accepts it for the purpose of deciding the federal question (see, majority opn, pp 11, 12, n. 4).[n 1] Thus, plaintiff's claims fail regardless of the "circumstances" or "context" in which the alleged defamatory words appear.

Nevertheless, the majority proceeds to examine the context of the statements under the State Constitution because a different conclusion could conceivably emerge under Milkovich (opn, p 12, n. 3). If certain statements in the McGreal letter alleged to be defamatory may be actionable after Milkovich the majority should identify them in its discussion of the federal claim and deny summary judgment. That is the request made of us by the Supreme Court: examine plaintiff's defamation claim in light of Milkovich and determine if a cause of action is stated. The majority has failed to do so, however, hypothesizing that some unspecified statement may be actionable unless considered in context under a broad State rule permitting such evaluation. Its grant of summary judgment on federal grounds, based on a narrow view of Milkovich in which context is not controlling, is inconsistent with the discussion on State law in which context becomes critical. It leaves both grounds for the decision suspect and seriously impairs the credibility of the Court's analysis.

III

Aside from these considerations, there are several institutional concerns which should be addressed.

Appellate courts perform two functions: an error-correcting function and an institutional function. The bulk of an intermediate court's work is to correct errors but this Court, as the highest court in the State, is primarily concerned with the institutional function of declaring and applying constitutional and common law principles, authoritatively interpreting statutes and formulating policy on issues of state-wide concern. When the Court reviews a question of federal constitutional law, however, it acts as part of a larger judicial system embracing not only New York but the nation as a whole. When federal questions are presented, its institutional functions are subordinated to the Supreme Court and it acts, in effect, as an intermediate court. Notwithstanding this different role, it is important that State courts participate in the nation's court structure. They have much to contribute to the Supreme Court's determination of federal law by addressing the issues thoroughly and persuasively and providing local perspectives for the development of constitutional rules (see, Johnson v Louisiana, 406 US 356, 376; New State Ice Co. v Liebmann, 285 US 262, 311 [Brandeis, J. dissenting]). Inasmuch as the Supreme Court is charged with the ultimate responsibility for pronouncing federal law, however, it should be given the opportunity to accept, modify or reject a State court's determination of what the Federal Constitution requires.

Our unnecessary reliance on State law in this case frustrates that process. Under general principles, Supreme Court jurisdiction to review a federal question fails if the decision of the State court is also based on adequate and independent State grounds (see, Michigan v Long, 463 US 1032, supra, at 1038 n. 4, 1041-1042; Fox Film Corp. v Muller, 296 US 207, 210; cf. Delaware v Prouse, 440 US 648, 651-653; and see, Ohio v Johnson, 467 US 493, 499; Comment, Ohio v Johnson, The Continuing Demise of the Adequate and Independent State Ground Rule, 57 U of Colo L. Rev. 395, 416). Under such circumstances, the Supreme Court will not review the matter because it can no longer control the litigation; its decision would constitute merely an advisory opinion. The State court's pronouncements on federal law, correct or not, thus become judicial dictum because they are not the dispositive reasons for the Court's decision.

Resting the decision on dual grounds also violates established rules of judicial restraint. Traditional doctrine holds that a court should decide no more than necessary to resolve the dispute before it. Constitutional questions should be avoided if possible (see, Communist Party v Catherwood, 367 US 389, 392; People v Felix, 58 NY2d 156, 161; Matter of Beach v Shanley, 62 NY2d 241, 254). The practice of deciding a case on dual grounds, thereby insulating the federal question from Supreme Court review has been described as "illegitimate" (see, Bice, "Anderson and the Adequate State Ground", 45 S. Cal. L. Rev. 750, 757; Collins, "The Once 'New Judicial Federalism' and Its Critics", 64 Wash L. Rev. 5, 7 [quoting Bice and criticisms of the California Supreme Court's practice of dualism by various public officials]). It is said to be not only contrary to the general rules underlying judicial restraint but also a perversion of the "new federalism", pushing State constitutional power beyond its proper limits by purporting to state federal law, but insulating the analysis from review by the Supreme Court. The inevitable consequence of dual reliance is that the Supreme Court, charged with ultimate authority in the area, loses a measure of control over the law it has created. To the extent that we declare federal law but foreclose review, we undermine the Supreme Court's institutional role, denying it the opportunity to harmonize divergent State court decisions or speak on issues it deems important. The result is much the same as if the four departments of the Appellate Division were to frustrate us in the performance of our institutional responsibilities by deciding State constitutional law issues and then, by procedural means, foreclose our review of their decisions.

Whether criticisms of the practice of dual reliance are justified as a general proposition, they are valid when considering the procedure followed in this case.[n 2] Our original decision contained no statement that it rested on independent State grounds (see, 74 NY2d 548). With the case in that posture, the Supreme Court granted certiorari, indicating its desire to pass on the issues of federal law and, as a matter of comity, remitted the case to us before ruling so that we might reconsider it in light of the intervening Milkovich decision. We have reviewed the appeal and concluded that under Milkovich the plaintiff has failed to satisfy its burden of proving defamation. The majority does not stop there, however. Having previously invited Supreme Court review by failing to rest our decision on independent State grounds, it now changes course and blocks that review by asserting them.

The majority contends this procedure is warranted by concerns of finality and judicial economy. Those are practical concerns present in every case. They rarely justify overriding established rules of judicial restraint and they should hardly control the decision-making process in this case. If the law was such that plaintiff could prevail on federal grounds but could not prevail on State grounds, then resort to the protection afforded by our State Constitution might be justified. But plaintiff has no cause of action on federal grounds, even with the narrow protection the majority accords defendant under Milkovich. If, notwithstanding this holding, we had proceeded in our federal analysis to examine the role of context in opinion cases it would represent inexcusable dictum because it would not control the outcome of the case. It becomes no less so because the discussion is cast in terms of State law.

The result of reaching both State and federal grounds is that the discussion of federal law, under Supreme Court precedent, is dictum because we have relied on independent State grounds. Conversely, the discussion of State grounds is largely dictum because context is not controlling in this case. The process is not in keeping with our institutional responsibility to provide stability and certainty in the development of law.

Accordingly, I concur for affirmance solely on the ground that the plaintiff's claims are not actionable under the holding in Milkovich v Lorain Journal Co. (supra).

F O O T N O T E S

1. For some reason, the majority believes its obligation to examine plaintiff's federal claim is limited to reviewing the "express and implied factual assertions...as they were identified by the Appellate Division" (opn, p 12, n. 3). On a motion for summary judgment, however, the Court is required to pass on the defamatory nature of all the statements alleged to be actionable. Although the majority appear to believe the Appellate Division did not perform this function, it explicitly stated that it had done so (see, 145 AD2d 114, 143 ["of the many statements cited by the plaintiff...there was not one that was actionable"]).

2. As Judge Kaye notes (opn, pp 20, 28-29), neither the Court nor its individual judges have consistently followed any announced standards for departing from federal law to adopt a different State rule or settled on any preferred methodology for doing so (but see, People v P.J. Video, 68 NY2d 296). No problem is presented when, as in the first appeal in this case, we perceive federal and State law to be the same. But when they diverge, we have followed a variety of approaches. Indeed, the Court recently has appeared to shy away from establishing any standards and, without guidance from us, parties have been free in cases asserting both federal and State constitutional claims to rely on the general equities of the case, to appeal to the subjective views of the individual judges on what the rule ought to be and to urge adoption of the methodology best suited to arrive at the desired result. Hopefully we will, in time, achieve an articulable consensus on how these matters should be handled. To that end, I first stated my opposition to the dual method in Matter of Patchogue-Medford Congress of Teachers v Board of Educ. of Patchogue-Medford Union Free School Dist. (70 NY2d 57, 71 [Simons, J., concurring]) and my opposition to going beyond the necessities of the case to declare new State law in People v Vilardi (76 NY2d 67, 78 [Simons, J., concurring]).


Titone, J. (concurring):

As do each of the other six members of this Court, I concur in the conclusion that plaintiff has not established an actionable defamation and that, accordingly, its complaint was properly dismissed. I also join in many of the concerns addressed in Judges Simons's and Hancock's concurrences about the propriety and wisdom of deciding the appeal on alternative state and federal constitutional analyses. Judge Simons's extended discussion of the apparent inconsistency in the majority's two-part analysis, as well as his review of the jurisprudential considerations militating against the majority's use of the "dual" approach in this case, are thorough and persuasive, and require no further elaboration here.[n *] Nonetheless, I have chosen to write separately because, in my view, the controlling legal principles should, at least in the first instance, be derived from state, rather than federal, law.

Even if, as the majority's opinion suggests, the Supreme Court's recent decision in Milkovich v Lorain Journal Co. (497 US __, 110 S Ct 2695) has changed the contours of what is actionable under the federal Constitition, (but see, 110 S Ct, at 2708-2709, supra [Brennan, J., dissenting]; see also, concurring opns per Simons, J., slip op. at 3, Hancock, J., slip op. at 1-3), its overall significance for our present purposes should not be overestimated. Milkovich and its predecessor Gertz merely established and shaped the constitutional floor below which state defamation rules may not fall (see, People ex rel. Arcara v Cloud Books, Inc., 68 NY2d 553, 557; see also, Kaye, Dual Constitutionalism in Practice and Principle, 61 St John's L Rev 399, 403). As such, they simply delineated the limitations imposed by the First Amendment on the state-derived common-law rights of defamation plaintiffs. There is nothing in Milkovich or any of the related cases that impairs the states' power to impose additional limitations, based on either their own constitutions or the traditions underlying their previously established common-law doctrines (see, e.g., PruneYard Shopping Center v Robins, 447 US 74).

Thus, our first obligation as a state common-law court is to determine whether the dismissal of this plaintiff's complaint is consistent with our state's common-law and constitutional defamation rules. Resolution of this question is, in my view, a necessary and logically prior step that must be taken before any federal constitutional issue is considered. As one state court has aptly observed: "The proper sequence is to analyze the state's law, including its constitutional law, before reaching a federal constitutional claim. This is required, not for the sake either of parochialism or of style, but because the state does not deny any right claimed under the federal Constitution when the claim before the court in fact is fully met by state law" (Sterling v Cupp, 290 Ore 611, 614, quoted in Massachusetts v Upton, 466 US 727, 736 [Stevens, J., concurring]; accord, State v Badger, 141 Vt 430, 448 ["[f]ulfillment of this Court's responsibilities as a member of the federalist system requires us to consider the availability of state grounds before federal appeal").

Under our system of federalism, the state courts have both the privilege and the responsibility of enunciating the state's law and providing the first line of protection for the people's liberties. "It is also important that state judges do not unnecessarily invite [the Supreme Court] to undertake review of state-court judgments" (Massachusetts v Upton, supra, at 737 [Stevens, J., concurring]).

With these principles in mind, I would decide this case solely by reference to New York State law, specifically its common-law defamation precepts. Indeed, in this State there exists a pre-Gertz body of case law that remains untouched by Milkovich and provides an ample framework for resolving the issue placed before us on this remand.

As this Court observed the first time this case was before it, the roots of the modern, constitutionally-based opinion privilege lie in the common-law doctrine according a qualified privilege to "fair comment" (74 NY2d, at 555). This doctrine has existed as part of New York's common law of defamation, albeit in cramped form, since at least 1840, when a journalist named Stone was sued for his vitriolic denunciation of a book authored by James Fenimore Cooper (Cooper v Stone, 24 Wend 434; see also, Bingham v Gaynor, 203 NY 27; Triggs v Sun Press & Pub. Assoc., 179 NY 144; Hamilton v Eno, 81 NY 116). By 1930, this Court had unequivocally stated that "[e]very one has a right to comment on matters of public interest and concern, provided he does so fairly and with an honest purpose" (Hoeppner v Dunkirk Printing Co., 254 NY 95, 99). And, by the latter half of the twentieth century, the "fair comment" doctrine was being applied expansively so as to make New York's common-law defamation rules consistent with the State and federal constitutional guarantees of free speech, as well as with the value that society places on the open and free exchange of ideas (see, e.g, Julian v American Business Consultants, Inc., 2 NY2d 1; see also, Cole Fisher Rogow, Inc. v Carl Ally, Inc., 25 NY2d 943).

To be sure, when New York Times Co. v Sullivan (376 US 254) and its progeny introduced a constitutional dimension into the law of defamation, judicial attention shifted away from the evolving common-law "fair comment" privilege and, in its stead, a parallel body of constitutional case law premised on the dictum in Gertz v Robert Welch, Inc. (418 US 323, 339-340) was developed (see, e.g., Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369), culminating in our Court's recent decisions in Steinhilber v Alphonse (68 NY2d 283) and this case (74 NY2d 548, supra). However, now that Gertz has proven to be a false lead, we may, without serious difficulty, retrace our steps and pick up the path where we left it when Gertz was decided.

Such a course would lead to essentially the same conclusion that the majority has reached, i.e., that the statements plaintiff challenges are not actionable. As was true of the line of cases built upon Gertz v Robert Welch, Inc. (supra), the central concern of the "fair comment" cases was to protect both "the right to comment on public affairs" and "the public's access to important information" (see, Immuno, A.G. v Moor Jankowski, 74 NY2d 548, 557, supra). In furtherance of that concern, it is highly appropriate to consider the context, tone and character of a statement challenged as defamatory when determining whether it constitutes a privileged "fair comment" or an actionable assertion of fact. Indeed, our common-law cases have often included references to reading the challenged work "as a whole" and in their proper context (e.g., James v Gannett Co., 40 NY2d 415, 419-420; Julian v American Business Consultants, Inc., 2 NY2d 1, 14-15, supra). The majority's current rationale, which emphasizes "the content of the whole communication, its tone and apparent purpose" (slip op., at 23), fits easily and neatly within this analytical framework.

The approach I advocate -- considering state common-law principles before looking to the State Constitution's strictures -- is particularly apt in this context, where the cause of action and the corresponding rights and duties of the parties are themselves creatures of the common law. In most of our prior decisions holding a State constitutional provision to be more protective of individual liberties than its federal counterpart, the particular right at issue had no source at all other than constitutional law. In People v Griminger (71 NY2d 635), People v P.J. Video, Inc. (68 NY2d 296), People v Class (67 NY2d 431) and People v Bigelow (66 NY2d 417), for example, we were called upon to decide the scope of the rights conferred by article 1, 12, of our State Constitution where the only other possible source of the protection was the Fourth Amendment to the federal Constitution -- and that source had been ruled unavailable (cf., People v Johnson, 66 NY2d 398; see also, People ex rel. Arcara v Cloud Books, Inc., 68 NY2d 553, supra [constitutional free speech guarantee]; People v Bethea, 67 NY2d 367 [constitutional privilege against self-incrimination]; Sharrock v Dell Buick-Cadillac, Inc. 45 NY2d 152 [constitutional due process guarantee]; People v Hobson, 39 NY2d 479 [constitutional right-to-counsel guarantee]). In such circumstances, there is no choice but to invoke the State Constitution, and we properly did not hesitate to do so.

Here, in contrast, the controversy concerns the scope of, and restrictions upon, private rights whose immediate source is a judicially-created common-law cause of action, i.e., defamation. In this context, it seem more than a little anomalous to leap directly to an inquiry into what the State Constitution forbids. Implicit in such an inquiry is the assumption that were it not for the constitutional restraints, the law would permit what is determined to be constitutionally forbidden. While such an approach may be required when the court is called upon to enforce an unambiguous rule established by another branch of government, such as a legislative enactment, it seems out of place when the rule to be enforced is a common-law rule of the courts' own making. In the latter circumstance, the sounder approach would be to simply shape the common-law rule so as to avoid a constitutional clash. Such an approach is particularly appropriate in an area where, as here, the common-law has not developed and hardened to the point where a constitutionally compatible rule is foreclosed by clear precedent.

Whether we use common-law principles to "inform" our constitutional analysis (maj. opn., slip op. at 18) or instead reverse that order of priority as I suggest (see also, People v Conyers, 52 NY2d 454) is not merely a matter of semantics. The approach I suggest has the advantage of being in harmony with the well-established principle that courts should avoid passing upon constitutional questions when the case can be disposed of in another way (e.g., Beach v Shanley, 62 NY2d 241, 254; People v Felix, 58 NY2d 156, 161). It also avoids a problem I have previously mentioned in connection with constitutionally-based decision-making, i.e., the practical difficulty of reversing or modifying the rule that the judiciary has adopted (see, Titone, State Constitutional Interpretation: The Search for an Anchor in a Rough Sea, 61 St John's L Rev 431, 439 & n39; see also, Maltz, The Dark Side of State Court Activism, 63 Tex L Rev 995, 1000).

In summary, I agree with the majority's ultimate conclusion that the statements contained in the McGreal letter do not constitute express or implied assertions of fact and are therefore not actionable under our State's law. That conclusion, for me, ends the inquiry. Accordingly, I vote to affirm the decision below dismissing plaintiff's complaint.

F O O T N O T E

*Like Judge Hancock, I would not rule out the use of the "dual" approach in cases where the posture makes it necessary or appropriate (see, e.g., People v Dunn, __ NY2d ___ [decided November 29, 1990]). In this case, however, the approach seems particularly inapt because, as the majority itself admits, its federal constitutional analysis is inconclusive. Further, to the extent that a tentative conclusion has been reached, the federal analysis leads to the same conclusion as does the "independent and adequate" state law rationale and, consequently, is unnecessary dictum.


HANCOCK, JR., J. (concurring):

I agree with Judge Simons (Concurring opn, Part II) that this appeal is properly resolved under Milkovich v Lorain Journal Co. (497 US ___, 110 SCt 2695) without addressing the issue of context. Were a discussion of this issue warranted, however, I would hold that nothing in Milkovich suggests that the Supreme Court has altered its attitude toward the context of and circumstances surrounding written or spoken words as an obvious and ordinarily indispensable consideration in deciding the legal question "of what the average person hearing or reading the [words] would take [them] to mean" (Steinhilber v Alphonse, 68 NY2d 283, 290). On the contrary, the majority's opinion in Milkovich and its discussion of the "context" cases (see particularly, Greenbelt Cooperative Publishing Assn. v Pressler, 398 US 6, 13-14; Letter Carriers v Austin, 418 US 264, 284-286; Hustler Magazine v Falwell, 485 US 46, 53-57) as well as Justice Brennan's dissenting opinion in Milkovich (see particularly, 110 SCt 2708-2710) lead me to the conclusion that context continues as a factor of undiminished significance and that the federal law as summarized in Steinhilber v Alphonse (68 NY2d 283, 289-292) is essentially unchanged (accord, The Supreme Court, 1989 Term; Leading Cases, 104 Harvard L Rev 129, 219, 223; see also, Concurring opn of Simons, J., at 3-4).

There are cases, in my opinion, where basing a decision on both federal and state constitutional grounds may be entirely appropriate. For the reasons stated by Judge Simons (Concurring opn, at 8-10), however, I am persuaded that this is not such a case. Accordingly, I would affirm solely on the ground that plaintiff has no cause of action under federal law.

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Upon reargument, following remand by the Supreme Court of the United States, order affirmed, with costs. Opinion by Judge Kaye. Chief Judge Wachtler and Judges Alexander and Bellacosa concur. Judges Simons, Titone and Hancock concur in result in separate opinions.