Neumann v. Liles

706 March 3, 2016 No. 11

IN THE SUPREME COURT OF THE

STATE OF OREGON

Carol C. NEUMANN

and Dancing Deer Mountain, LLC,

an Oregon domestic limited liability company,

Respondents on Review,

v.

Christopher LILES,

Petitioner on Review.

(CC 121103711; CA A149982; SC S062575)

On review from the Court of Appeals.*

Argued and submitted May 12, 2015.

Linda K. Williams, Portland, argued the cause and filed

the brief for petitioner on review.

No appearance contra.

Derek D. Green, Davis Wright Tremaine LLP, Portland,

filed the brief for amici curiae Reporters Committee for

Freedom of the Press, City of Roses Newspaper Company (dba

Willamette Week), Gannett Co., Inc., Meredith Corporation

(dba KPTV), Oregon Association of Broadcasters, Oregon

Newspaper Publishers Association, Oregon Public

Broadcasting, Oregonian Publishing Company LLC (dba The

Oregonian Media Group), and Western Communications,

Inc. (dba The Bulletin of Bend).

Daniel W. Meek, Portland, filed the brief for amicus cur-

iae Policy Initiatives Group.

Before Balmer, Chief Justice, and Kistler, Walters,

Landau, Brewer, and Baldwin, Justices, and Linder, Senior

Judge.**

______________

**  Appeal from Lane County Circuit Court, Charles D. Carlson, Judge. 261

Or App 567, 323 P3d 521 (2014)

**  Nakamoto, J., did not participate in the consideration or decision of this

case.

Cite as 358 Or 706 (2016) 707

BALDWIN, J.

The decision of the Court of Appeals is reversed, and the

case is remanded to the Court of Appeals. The decision of

the circuit court that dismissed plaintiffs’ defamation claim

is affirmed.

Case Summary: Plaintiffs, a wedding venue and the owner thereof, filed a def-

amation claim against defendant after defendant posted a negative review of the

venue on a publicly accessible website. Defendant filed a special motion to strike

under Oregon’s anti-SLAPP statute, ORS 31.150. The trial court granted the

motion and dismissed plaintiffs’ defamation claim without prejudice. The Court

of Appeals reversed. Held: Defendant’s online review is an expression of opinion

on matters of public concern that is protected under the First Amendment.

The decision of the Court of Appeals is reversed, and the case is remanded to

the Court of Appeals. The decision of the circuit court that dismissed plaintiffs’

defamation claim is affirmed.

708 Neumann v. Liles

BALDWIN, J.

This case requires us to decide whether a defama-

tory statement made in an online business review is enti-

tled to protection under the First Amendment. To make that

decision, we follow the test developed by the Ninth Circuit

in Unelko Corp. v. Rooney, 912 F2d 1049 (9th Cir 1990), cert

den, 499 US 961 (1991), to determine whether a reason-

able factfinder could conclude that an allegedly defamatory

statement touching on a matter of public concern implies

an assertion of objective fact and is therefore not consti-

tutionally protected. Applying that test, we conclude that

the online review at issue in this case is entitled to First

Amendment protection. We therefore reverse the decision of

the Court of Appeals to the contrary and remand the case to

the Court of Appeals to resolve a disputed attorney fee issue.

I. BACKGROUND

Plaintiff Carol Neumann (Neumann) is an owner

of plaintiff Dancing Deer Mountain, LLC (Dancing Deer

Mountain), a business that arranges and performs wed-

ding events at a property owned by Neumann. Defendant,

Christopher Liles (Liles), was a wedding guest who attended

a wedding and reception held on Neumann’s property in

June 2010. Two days after those events, Liles posted a neg-

ative review about Neumann and her business on Google

Reviews, a publicly accessible website where individuals

may post comments about services or products they have

received.

The review was entitled, “Disaster!!!!! Find a differ-

ent wedding venue,” and stated:

“There are many other great places to get married, this is

not that place! The worst wedding experience of my life!

The location is beautiful the problem is the owners. Carol

(female owner) is two faced, crooked, and was rude to mul-

tiple guest[s]. I was only happy with one thing. It was a

beautiful wedding, when it wasn’t raining and Carol and

Tim stayed away. The owners did not make the rules clear

to the people helping with set up even when they saw some-

thing they didn’t like they waited until the day of the wed-

ding to bring it up. They also changed the rules as they saw

fit. We were told we had to leave at 9pm, but at 8:15 they

Cite as 358 Or 706 (2016) 709

started telling the guests that they had to leave immedi-

ately. The ‘bridal suite’ was a tool shed that was painted

pretty, but a shed all the same. In my opinion [s]he will find

a why [sic] to keep your $500 deposit, and will try to make

you pay even more.”

A few months later, Neumann and Dancing Deer

Mountain filed a defamation claim for damages against

Liles.1 Liles then filed a special motion to strike under ORS

31.150, Oregon’s Anti-Strategic Lawsuits Against Public

Participation (anti-SLAPP) statute.2 Specifically, Liles

based his motion on provisions of ORS 31.150(2) relating to

cases involving statements presented “in a place open to the

public or a public forum in connection with an issue of public

interest” or “other conduct in furtherance of * * * the con-

stitutional right of free speech in connection with a public

issue or an issue of public interest.” ORS 31.150(2)(c), (d). In

response, Neumann and Dancing Deer Mountain submit-

ted evidence to support a prima facie case of defamation, as

required by ORS 31.150(3).

After a hearing, the trial court allowed Liles’s motion

to strike and entered a judgment of dismissal of Neumann’s

defamation claim without prejudice. ORS 31.150(1) (so pro-

viding when trial court grants special motion to strike).

Neumann appealed, assigning error to the trial court’s

ruling.

The Court of Appeals reversed the judgment, rea-

soning that “the evidence submitted by plaintiffs, if credited,

would permit a reasonable factfinder to rule in Neumann’s

favor on the defamation claim, and the evidence submitted by

[Liles] does not defeat Neumann’s claim as a matter of law.”

Neumann v. Liles, 261 Or App 567, 575, 323 P3d 521 (2014).

The court focused its analysis on whether Liles’s statements

were capable of a defamatory meaning—that is, whether his

statements falsely ascribed to Neumann conduct incompati-

ble with the proper conduct of a wedding venue operator. Id.

1

Although Neumann and Dancing Deer Mountain asserted additional

claims against Liles, only the trial court’s dismissal of the defamation claim was

challenged by Neumann and Dancing Deer Mountain on appeal. See Neumann v.

Liles, 261 Or App 567, 580 n 9, 323 P3d 521 (2014) (so explaining).

2

ORS 31.150 to 31.155 are set out in the appendix of this opinion.

710 Neumann v. Liles

at 576-77. The court concluded that several of Liles’s state-

ments, such as his statements that Neumann was “rude to

multiple guest[s],” that she is “crooked,” and that she “will

find a [way] to keep your $500 deposit,” could reasonably be

interpreted as defamatory. Id. The court therefore concluded

that the trial court had erred when it struck Neumann’s def-

amation claim. Id.3

In so concluding, the Court of Appeals rejected Liles’s

arguments that “his statements were nonactionable opinion”

and that “his statements are not defamatory because, in his

view, the context of the statements demonstrates that they

are figurative, rhetorical, or hyperbolic.” Id. at 578. In the

court’s view, Liles’s statements were not protected as opin-

ion, because they “reasonably could be understood to state

facts or imply the existence of undisclosed defamatory facts.”

Id. The court also disagreed with Liles that his statements

were, as a whole, hyperbolic. Rather, the court concluded

that Liles had included various factual details in his review

and that a reasonable reader therefore would not interpret

his statements to be “mere hyperbole.” Id. at 578-79.

We allowed Liles’s petition for review to determine

how an actionable statement of fact is distinguished from a

constitutionally protected expression of opinion in a defama-

tion claim and whether the context in which a statement is

made affects that analysis.

II. ANALYSIS

On review, Liles argues that his online review of

Neumann’s venue is entitled to protection under the First

Amendment.4 Specifically, he contends that his review,

when read in the context of informal online communication,

is properly understood as expressing merely his subjective

opinion about the venue that he was reviewing. He also

3

As we will later explain, based on its disposition, the court did not reach

Neumann’s further argument that her claim was not subject to the provisions

of Oregon’s anti-SLAPP statute, ORS 31.150 - 31.155. Nor did the court resolve

Liles’s cross-assignment of error relating to the amount of attorney fees awarded

by the trial court under that statute.

4

The parties have not raised the issue of whether Liles’s statements are pro-

tected under Article I, section 8, of the Oregon Constitution. We therefore do not

express an opinion on that issue.

Cite as 358 Or 706 (2016) 711

contends that the statements in his review are not prov-

able as true or false. Regarding the words that the Court

of Appeals concluded to be capable of defamatory meaning,

such as “rude” and “crooked,” he argues that those words

are too vague to imply an assertion of fact.5

Although our determination of the legal sufficiency

of Neumann’s defamation claim hinges on whether Liles’s

statements are protected under the First Amendment, we

begin our analysis by examining the common-law origins of

the tort.

A.  Common Law of Defamation

This court has recognized a common-law action for

defamation for injury to reputation for over 150 years. See

Hurd v. Moore, 2 Or 85 (1863) (false statement by defendant

that plaintiff had burned defendant’s house). The roots of

that tort run even deeper: the English common law had rec-

ognized the tort of defamation long before the formation of

the American republic. See Milkovich v. Lorain Journal Co.,

497 US 1, 11, 110 S Ct 2695, 111 L Ed 2d 1 (1990) (“Since the

latter half of the 16th century, the common law has afforded

a cause of action for damage to a person’s reputation by the

publication of false and defamatory statements.”) (citing L.

Eldredge, Law of Defamation 5 (1978)).

To establish a claim for defamation, a plaintiff

must show that a defendant made a defamatory statement

about the plaintiff and published the statement to a third

party. Wallulis v. Dymowski, 323 Or 337, 342-43, 918 P2d

755 (1996) (so holding). A defamatory statement is one that

would subject the plaintiff “to hatred, contempt or ridicule

* * * [or] tend to diminish the esteem, respect, goodwill or

confidence in which [the plaintiff] is held or to excite adverse,

derogatory or unpleasant feelings or opinions against [the

plaintiff].” Farnsworth v. Hyde, 266 Or 236, 238, 512 P2d

1003 (1973) (internal quotation marks omitted). In the pro-

fessional context, a statement is defamatory if it falsely

5

Liles also argues that Neumann is a limited purpose public figure and was

therefore required under the First Amendment to present evidence of actual mal-

ice. Because we conclude, as discussed below, that Neumann’s claim is not legally

sufficient, we do not address that argument.

712 Neumann v. Liles

“ascribes to another conduct, characteristics or a condition

incompatible with the proper conduct of his lawful business,

trade, [or] profession.” Brown v. Gatti, 341 Or 452, 458, 145

P3d 130 (2006) (internal quotation marks omitted).

Some defamatory statements are actionable per se—

that is, without proof of pecuniary loss or special harm.

Libel, that is, defamation by written or printed words, is

actionable per se. Hinkle v. Alexander, 244 Or 271, 277, 417

P2d 586 (1966) (on rehearing). Slander, which is defamation

by spoken words, also may be actionable per se under cer-

tain circumstances. For instance, spoken words that injure

a plaintiff in his or her profession or trade may constitute

slander per se. See, e.g., Wheeler v. Green, 286 Or 99, 124, 593

P2d 777 (1979) (where defendant accuses plaintiff of miscon-

duct or dishonesty in performance of plaintiff’s profession or

employment, matter is “actionable without proof of specific

harm”); see also Barnett v. Phelps, 97 Or 242, 244-45, 191

P 502 (1920) (discussing classes of spoken words that are

actionable per se).

At early common law, defamatory statements were

generally deemed actionable regardless of whether they were

statements of fact or expressions of opinion. “However, due

to concerns that unduly burdensome defamation laws could

stifle valuable public debate, the privilege of ‘fair comment’

was incorporated into the common law as an affirmative

defense to an action for defamation.” Milkovich, 497 US at

13. Under the “fair comment” privilege, a statement was pro-

tected if “it concerned a matter of public concern, was upon

true or privileged facts, represented the actual opinion of the

speaker, and was not made solely for the purpose of causing

harm.” Id. at 13-14; see Bank of Oregon v. Independent News,

298 Or 434, 437, 693 P2d 35, cert den, 474 US 826 (1985)

(under qualified privilege of “fair comment and criticism,”

a defendant is not liable if publication was made in good

faith and without malice); Peck v. Coos Bay Times Pub. Co.

et al., 122 Or 408, 421, 259 P 307 (1927) (same). The “fair

comment” privilege thus served “to strike the appropriate

balance between the need for vigorous public discourse and

the need to redress injury to citizens wrought by invidious

or irresponsible speech.” Milkovich, 497 US at 14.

Cite as 358 Or 706 (2016) 713

B.  First Amendment Limitations

Since the development of the common-law privilege

of “fair comment,” the United States Supreme Court has

determined that the First Amendment places limits on the

application of the state law of defamation. See Milkovich, 497

US at 13-17 (summarizing common-law origins and First

Amendment limitations on state defamation law). The pro-

tection afforded under the First Amendment to statements of

opinion on matters of public concern reached what one court

called its “high-water mark” in Gertz v. Robert Welch, Inc.,

418 US 323, 94 S Ct 2997, 41 L Ed 2d 789 (1974). Keohane

v. Stewart, 882 P2d 1293, 1298 (Colo 1994), cert den, 513 US

1127 (1995) (so characterizing the Supreme Court’s opinion

in Gertz). In Gertz, the United States Supreme Court stated

in dictum:

“Under 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. But there is no

constitutional value in false statements of fact.”

418 US at 339-40 (footnote omitted). A majority of state and

federal courts interpreted Gertz to have announced that

expressions of opinion were absolutely privileged under the

First Amendment. See, e.g., Yetman v. English, 168 Ariz 71,

75, 811 P2d 323, 327 (1991) (acknowledging considerable

body of federal law, emanating from Gertz dictum, “holding

that the expression of opinion is absolutely privileged under

the first amendment”); Keohane, 882 P2d at 1298 (“The Gertz

dicta was read by many courts to establish that statements

of opinion are not actionable.”); Paint Brush Corp. v. Neu,

1999 SD 120, ¶ 42, 599 NW2d 384, 395 (1999) (“Most courts,

including ours, apparently understood the Gertz passage to

mean ‘opinions’ (not just ideas) are absolutely protected by

the First Amendment of the United States Constitution.”);

see also Rodney A. Smolla, Law of Defamation § 6:11, 6-21 (2d

ed 1999) (noting that Gertz dictum had appeared to impose

“upon both state and federal courts the duty, as a matter of

constitutional obligation, to distinguish facts from opinions

in order to provide opinions with the requisite absolute First

Amendment protection”).

714 Neumann v. Liles

The Supreme Court in Milkovich, however, dispelled

the notion that it had announced a “wholesale defamation

exemption for anything that might be labeled ‘opinion.’ ”

497 US at 18. In that case, a newspaper published a column

that implied that Milkovich, a high school wrestling coach,

had lied under oath in a judicial proceeding after his team

was involved in an altercation at a wrestling match and the

coach’s team was placed on probation. Id. at 3-5. Milkovich

filed a libel action against the newspaper and a reporter,

alleging that the defendants had accused him of committing

the crime of perjury, thereby damaging him in his occupa-

tion of coach and teacher. Id. at 6-7.

The Supreme Court rejected the defendants’ argu-

ment that all defamatory statements that are categorized as

“opinion” as opposed to “fact” enjoy blanket First Amendment

protection. Id. at 17-18. The Court clarified that the oft-cited

passage in Gertz had been “merely a reiteration of Justice

Holmes’ classic ‘marketplace of ideas’ concept.” Id. at 18 (cit-

ing Abrams v. United States, 250 US 616, 630, 40 S Ct 17, 63

L Ed 1173 (1919) (Holmes, J., dissenting) (“[T]he ultimate

good desired is better reached by free trade in ideas—* * *

the best test of truth is the power of the thought to get itself

accepted in the competition of the market[.]”)). Thus, Gertz

had not created an additional separate constitutional privi-

lege for anything that might be labeled an “opinion.” In the

Court’s view, such an interpretation of Gertz would “ignore

the fact that expressions of ‘opinion’ may often imply an

assertion of objective fact.” Id.

Ultimately, the Court refused to create a separate

constitutional privilege for “opinion,” concluding instead

that existing constitutional doctrine adequately protected

the “uninhibited, robust, and wide-open” debate on public

issues. Id. at 20-21. Under that existing doctrine, full con-

stitutional protection is afforded to statements regarding

matters of public concern that are not sufficiently factual to

be capable of being proved false and statements that cannot

reasonably be interpreted as stating actual facts. Id. at 19-20

(citing Philadelphia Newspapers, Inc. v. Hepps, 475 US 767,

106 S Ct 1558, 89 L Ed 2d 783 (1986), and Hustler Magazine,

Inc. v. Falwell, 485 US 46, 108 S Ct 876, 99 L Ed 2d 41

Cite as 358 Or 706 (2016) 715

(1988)). The dispositive question in determining whether a

defamatory statement is constitutionally protected, accord-

ing to the Court, is whether a reasonable factfinder could

conclude that the statement implies an assertion of objective

fact about the plaintiff. Id. at 21.

Applying that rule to the facts of Milkovich, the

Court determined that a reasonable factfinder could con-

clude that the statements in the newspaper column implied

a factual assertion that Milkovich had perjured himself in

a judicial proceeding. Id. The Court considered various fac-

tors. First, the Court noted that the column had not used

“the sort of loose, figurative, or hyperbolic language” that

would negate the impression that the writer was seriously

maintaining that Milkovich had committed the crime of

perjury. Id. Second, the Court concluded the “general tenor

of the article” did not negate that impression. Id. Third, in

the Court’s view, the accusation that Milkovich had com-

mitted perjury was “sufficiently factual to be susceptible of

being proved true or false.” Id. Accordingly, the Court held

that the column did not enjoy constitutional protection.

The analytical response of both lower federal courts

and state courts to Milkovich has been varied. See David A.

Elder, Defamation: A Lawyer’s Guide § 8:15 (2003) (noting

that courts have interpreted Milkovich in “widely varying

ways,” from viewing Milkovich as not changing the law but

rather merely ensconcing pre-Milkovich opinion-fact crite-

ria to viewing Milkovich as effectively overruling existing

doctrine). Many courts have concluded that, although the

Court in Milkovich rejected a strict dichotomy between

fact and opinion, the Court left the constitutional frame-

work otherwise intact. Those courts generally have con-

tinued to apply the factors that they had developed before

Milkovich for identifying constitutionally protected expres-

sions of opinion. See, e.g., Yates v. Iowa West Racing Ass’n,

721 NW2d 762, 771 (Iowa 2006) (concluding that four-fac-

tor test developed before Milkovich was still good law and

applying that test). Other courts, however, have interpreted

Milkovich as rendering obsolete the various tests that courts

had adopted after Gertz for distinguishing fact from opin-

ion. See, e.g., Bentley v. Bunton, 94 SW3d 561, 580-81 (Tex

716 Neumann v. Liles

2002) (concluding that Milkovich analysis supplants tests

previously used by lower courts for distinguishing fact from

opinion). Still other courts have looked to their state con-

stitutions to determine whether liability may be imposed

for statements of opinion. See, e.g., Vail v. The Plain Dealer

Publ’g Co., 72 Ohio St 3d 279, 281, 649 NE2d 182, 185 (Ohio

1995), cert den, 516 US 1043 (1996) (state constitution pro-

vides separate and independent guarantee of protection for

opinion, ancillary to freedom of press).

This court has had only one prior occasion to inter-

pret and apply Milkovich, in Reesman v. Highfill, 327 Or 597,

965 P2d 1030 (1998). In that case, an air-show pilot brought

a defamation claim against members of a citizens’ commit-

tee that opposed an airport expansion. Id. at 599. The defen-

dants had published and distributed a flyer to residents of

towns near the airport; that flyer included statements about

the plaintiff and attributed certain statements to him. Id.

at 600-01. This court rejected the plaintiff’s argument that

those statements had defamatory implications. Id. at 604-

06. Additionally, the court concluded that two of those state-

ments were constitutionally protected expressions of opinion:

“Such statements, which cannot be interpreted reasonably

as stating actual facts, are not actionable because they are

constitutionally protected.” Id. at 606 (citing Milkovich, 497

US at 20, for proposition that statement of opinion relating

to matters of public concern that does not contain a prov-

ably false factual connotation will receive full constitutional

protection). The court in Reesman did not, however, analyze

Milkovich in any detail.

This case therefore presents the first occasion for

this court to announce a framework for analyzing whether

a defamatory statement is entitled to First Amendment pro-

tection.6 In the absence of existing law from this court, we

look to the approaches of other jurisdictions for guidance. Of

those, we find particularly persuasive the approach articu-

lated by the Ninth Circuit.

6

Ordinarily, we would look to our state constitution before addressing

any federal constitutional issues. As noted, however, the parties to this case

have argued this issue solely under the First Amendment and have not invoked

Article I, section 8, of the Oregon Constitution.

Cite as 358 Or 706 (2016) 717

In Unelko, 912 F2d 1049, decided shortly after

Milkovich, the Ninth Circuit addressed whether certain

statements that Andy Rooney had made during two broad-

casts of “60 Minutes” were protected as opinion under the

First Amendment. The court concluded that, after Milkovich,

“the threshold question in defamation suits is not whether

a statement might be labeled ‘opinion,’ but rather whether

a reasonable factfinder could conclude that the statement

impl[ies] an assertion of objective fact.” Id. at 1053 (inter-

nal quotation marks omitted). To resolve that threshold

question, the Ninth Circuit drew from the factors that the

Supreme Court had considered in Milkovich and announced

a three-part test: (1) whether the general tenor of the entire

work negates the impression that the defendant was assert-

ing an objective fact; (2) whether the defendant used figu-

rative or hyperbolic language that negates that impression;

and (3) whether the statement in question is susceptible of

being proved true or false. Id. at 1053.

Since Unelko, the Ninth Circuit has consistently

used that three-part inquiry to determine whether a rea-

sonable factfinder could conclude that a statement implies

an assertion of objective fact. E.g., Obsidian Finance Group,

LLC v. Cox, 740 F3d 1284, 1293 (9th Cir 2011), cert den,

__ US __, 134 S Ct 2680 (2014); Gardner v. Martino, 563

F3d 981, 986-87 (9th Cir 2009); Partington v. Bugliosi, 56

F3d 1147, 1152-53 (9th Cir 1995); see also Knievel v. ESPN,

393 F3d 1068, 1074-75 (9th Cir 2005) (articulating court’s

three-part “totality of the circumstances” test as examining

(1) “the statement in its broad context, which includes the

general tenor of the entire work, the subject of the state-

ments, the setting, and the format of the work”; (2) “the

specific context and content of the statements, analyzing

the extent of figurative or hyperbolic language used and

the reasonable expectations of the audience in that par-

ticular situation”; and (3) “whether the statement itself is

sufficiently factual to be susceptible of being proved true or

false”); Underwager v. Channel 9 Australia, 69 F3d 361, 366

(9th Cir 1995) (same).

Several other courts also have expressly adopted

the Ninth Circuit’s test. See, e.g., Adelson v. Harris, 973 F

Supp 2d 467, 488-89 (SDNY 2013) (applying Ninth Circuit’s

718 Neumann v. Liles

three-part test, noting that test, “while not binding on

this court, is instructive”); Dodson v. Dicker, 306 Ark 108,

111, 812 SW2d 97, 98 (1991) (concluding that “the Ninth

Circuit’s method of analysis is a reasonable extension of

the Milkovich doctrine” and following that method); Gold v.

Harrison, 88 Haw 94, 101, 962 P2d 353, 360 (1998), cert den,

526 US 1018 (1999) (adopting “three-part test as set forth

by the Ninth Circuit to determine whether a statement is

false and defamatory” under First Amendment and equiva-

lent provision of state constitution); Marchant Inv. & Mgmt.

Co. v. St. Anthony West Neighborhood Org., 694 NW2d 92,

96 (Minn Ct App 2005) (finding federal, post-Milkovich

considerations instructive and applying them to determine

whether defendant’s statements constitute defamation; cit-

ing Ninth Circuit’s decision in Partington, 56 F3d at 1153);

Moats v. Republican Party of Nebraska, 281 Neb 411, 425-26,

796 NW2d 584, 596, cert den, __ US __, 132 S Ct 251 (2011)

(applying three-part test to determine whether statement

implied false assertion of fact or protected opinion; citing

Ninth Circuit’s decision in Gardner, 563 F3d at 987).

We agree with those courts that have found the

Ninth Circuit’s three-part inquiry to be a sound approach

for determining whether a statement is entitled to First

Amendment protection. The Ninth Circuit’s test appropri-

ately considers the totality of the relevant circumstances,

including the context in which particular statements were

made and the verifiability of those statements. The Ninth

Circuit’s test is also a reasonable interpretation of Milkovich.

It explicitly incorporates the factors that the Supreme Court

itself considered in deciding Milkovich—i.e., the general

tenor of a defendant’s publication, whether the publica-

tion uses figurative or hyperbolic language, and whether

the publication is susceptible of being proved true or false.

See Milkovich, 497 US at 21-22 (applying those factors).

Accordingly, we follow the Ninth Circuit’s three-part frame-

work for whether a reasonable factfinder could conclude that

a given statement implies a factual assertion.

In summary, to determine whether a defamatory

statement is protected under the First Amendment, the

first question is whether the statement involves a matter

of public concern. If it does, then the dispositive question

Cite as 358 Or 706 (2016) 719

is whether a reasonable factfinder could conclude that the

statement implies an assertion of objective fact. To answer

that question, we adopt the following three-part inquiry:

(1) whether the general tenor of the entire publication

negates the impression that the defendant was asserting

an objective fact; (2) whether the defendant used figura-

tive or hyperbolic language that negates that impression;

and (3) whether the statement in question is susceptible of

being proved true or false. Under that framework, we do

not consider the defendant’s words in isolation. Rather, we

must consider “the work as a whole, the specific context in

which the statements were made, and the statements them-

selves to determine whether a reasonable factfinder could

conclude that the statements imply a false assertion of objec-

tive fact and therefore fall outside the protection of the First

Amendment.” Partington, 56 F3d at 1153.

C.  Application of First Amendment Limitations

Before we apply that test to the facts of this case,

we repeat, for convenience, Liles’s review of Dancing Deer

Mountain that he posted on Google.com:

“Disaster!!!!! Find a different wedding venue

“There are many other great places to get married, this is

not that place! The worst wedding experience of my life!

The location is beautiful the problem is the owners. Carol

(female owner) is two faced, crooked, and was rude to mul-

tiple guest[s]. I was only happy with one thing. It was a

beautiful wedding, when it wasn’t raining and Carol and

Tim stayed away. The owners did not make the rules clear

to the people helping with set up even when they saw some-

thing they didn’t like they waited until the day of the wed-

ding to bring it up. They also changed the rules as they saw

fit. We were told we had to leave at 9pm, but at 8:15 they

started telling the guests that they had to leave immedi-

ately. The ‘bridal suite’ was a tool shed that was painted

pretty, but a shed all the same. In my opinion [s]he will find

a why [sic] to keep your $500 deposit, and will try to make

you pay even more.”

Initially, we conclude that, if false, several of Liles’s

statements are capable of a defamatory meaning. Throughout

his review, Liles ascribed to Neumann conduct that is

incompatible with the proper conduct of a wedding venue

720 Neumann v. Liles

operator and, as the Court of Appeals noted, “inconsistent

with a positive wedding experience.” Neumann, 261 Or App

at 577. As a result, a reasonable factfinder could conclude

that Liles’s statements were defamatory if he or she found

that the statements were false. See Brown, 341 Or at 458

(statement is defamatory in professional context if it falsely

ascribes to the plaintiff conduct that is incompatible with

proper conduct of her lawful business). Moreover, because,

if false, Liles’s defamatory statements were written and

published—and therefore libelous—they are actionable

per se. See Hinkle, 244 Or at 277 (libel is actionable per se).

The question remains, however, whether they are neverthe-

less protected under the First Amendment.

To resolve that question, we must first determine,

by examining the content, form, and context of Liles’s state-

ments, whether those statements involve matters of public

concern. Dun & Bradstreet, Inc. v. Greenmoss Builders, 472

US 749, 761, 105 S Ct 2939, 86 L Ed 2d 593 (1985) (whether

statement addresses matter of public concern must be deter-

mined by statement’s content, form, and context, as revealed

by whole record). Neumann has not disputed that Liles’s

statements involve matters of public concern, and we readily

conclude that they do. Liles’s review was posted on a publicly

accessible website, and the content of his review related to

matters of general interest to the public, particularly those

members of the public who are in the market for a wedding

venue. See Unelko, 912 F2d at 1056 (Andy Rooney’s state-

ment on “60 Minutes” that a consumer product “didn’t work”

involved matter of public concern, because it “was of general

interest and was made available to the general public”).

Next, we must determine whether a reasonable

factfinder could interpret Liles’s statements as implying

assertions of objective fact. Applying the three-part inquiry

that we articulated above, we first consider whether the gen-

eral tenor of the entire work negates the impression that

Liles was asserting objective facts about Neumann. From

the outset, it is apparent that the review is describing Liles’s

personal view of Neumann’s wedding venue, calling it a

“Disaster!!!!!” The general tenor of the piece, beginning with

the word “Disaster,” is that, in Liles’s subjective opinion,

Cite as 358 Or 706 (2016) 721

the services were grossly inadequate and that the business

was poorly operated. However, read independently, two sen-

tences in the review could create the impression that Liles

was asserting an objective fact: “Carol (female owner) is two

faced, crooked, and was rude to multiple guest[s]. * * * In

my opinion [s]he will find a [way] to keep your $500 deposit,

and will try to make you pay even more.” Standing alone,

those statements could create the impression that Liles

was asserting the fact that Neumann had wrongfully kept

a deposit that she was not entitled to keep. In the context

of the entire review, however, those sentences do not leave

such an impression. Rather, the review as a whole reveals

that Liles was an attendee at the wedding in question and

suggests that he did not himself purchase wedding services

from Neumann. The general tenor of the review thus reflects

Liles’s negative personal and subjective impressions and

reactions as a guest at the venue and negates the impression

that Liles was asserting objective facts.

We next consider whether Liles used figurative or

hyperbolic language that negates the impression that he

was asserting objective facts. Although the general tenor of

the review reveals its hyperbolic nature more clearly than do

the individual statements contained therein, several state-

ments can be characterized as hyperbolic. In particular, the

title of the review—which starts with the word “Disaster”

and is followed by a histrionic series of exclamation marks—

is hyperbolic and sets the tone for the review. The review

also includes the exaggerative statements that this was

“The worst wedding experience of [Liles’s] life!” and that

Liles was “only happy with one thing” about the wedding.

Such hyperbolic expressions further negate any impression

that Liles was asserting objective facts.

Finally, we consider whether Liles’s review is sus-

ceptible of being proved true or false. As discussed, Liles’s

statements generally reflect a strong personal viewpoint as

a guest at the wedding venue, which renders them not sus-

ceptible of being proved true or false. Again, the sentences

quoted above referring to Neumann as “crooked” and stat-

ing that, “[i]n my opinion [s]he will find a [way] to keep your

$500 deposit, and will try to make you pay even more” could,

722 Neumann v. Liles

standing alone, create the impression that Liles was assert-

ing facts about Neumann. However, viewed in the context of

the remainder of the review, those statements are not prov-

ably false. The general reference to Neumann as “crooked”

is not a verifiable accusation that Neumann committed a

specific crime. Moreover, in light of the hyperbolic tenor of

the review, the use of the word “crooked” does not suggest

that Liles was seriously maintaining that Neumann had,

in fact, committed a crime. Similarly, Liles’s statement that

“[i]n my opinion [Neumann] will find a [way] to keep your

$500 deposit, and will try to make you pay even more” is not

susceptible of being proved true or false. That statement is

explicitly prefaced with the words, “In my opinion”—thereby

alerting the reader to the fact that what follows is a subjec-

tive viewpoint. Of course, those words alone will not insulate

an otherwise factual assertion from liability. See Milkovich,

497 US at 19 (simply couching statements in terms of opin-

ion does not dispel their defamatory implications). However,

given that Liles—as a mere guest at the wedding—presum-

ably did not pay the deposit for the wedding involved in this

case, his speculation that Neumann would try to keep a cou-

ple’s deposit is not susceptible of being proved true or false.

Based on the foregoing factors, we conclude that a

reasonable factfinder could not conclude that Liles’s review

implies an assertion of objective fact. Rather, his review is

an expression of opinion on matters of public concern that

is protected under the First Amendment. We therefore fur-

ther conclude that the trial court did not err in dismissing

Neumann’s claim, and we reverse the Court of Appeals

determination to the contrary.

D.  Remaining Attorney Fee Dispute

As noted, the trial court granted Liles’s special

motion to strike under the provisions of Oregon’s anti-

SLAPP statute, ORS 31.150 to 31.155, and entered a judg-

ment of dismissal of Neumann’s action without prejudice

under ORS 31.150(1). SLAPP, as earlier noted, is an acro-

nym that stands for “strategic lawsuit against public partic-

ipation.” See generally George W. Pring, SLAPPs: Strategic

Lawsuits Against Public Participation, 7 Pace Envtl L Rev 3

(1990).

Cite as 358 Or 706 (2016) 723

Oregon’s anti-SLAPP statute creates an expedited

procedure for dismissal of certain non-meritorious civil

cases without prejudice at the pleading stage. See Staten v.

Steel, 222 Or App 17, 29, 191 P3d 778 (2008), rev den, 345

Or 618 (2009) (purpose of ORS 31.150 is “to provide for the

dismissal of claims against persons participating in public

issues * * * before the defendant is subject to substantial

expenses in defending against them”); Horton v. Western

Protector Ins. Co., 217 Or App 443, 452, 176 P3d 419 (2008)

(“[I]t is apparent that the legislature envisioned a process

that would provide an expedited resolution to the litigation

that is the subject of ORS 31.150 to 31.155.”) (citing legisla-

tive history).

On appeal, the Court of Appeals summarized the

issues presented as follows:

“On appeal, plaintiffs assert that the trial court erred in

two respects: by concluding that their action was subject

to the anti-SLAPP procedures, and by concluding that

Neumann had not established a prima facie case of defa-

mation. On cross-appeal, defendant contends that the trial

court erred by awarding him less than the full amount of

attorney fees that he requested.”

Neumann, 261 Or App at 572. The court reached only the

question of whether Neumann had established a prima facie

case of defamation, concluding that she had and reversing

the trial court on that ground. Id. at 575. The court did not

resolve the question of whether Neumann’s action was of a

type subject to the provisions of the anti-SLAPP statute.

Id. at 573-74. The trial court made an award of attorney

fees to Liles under ORS 131.152(3), after Liles prevailed

on his special motion to strike. Further, based on its dis-

position, the court did not reach Liles’s cross-appeal chal-

lenging the amount of the attorney fee award in his favor

and instead vacated that award. Id. at 580-81. Ordinarily,

having affirmed the trial court’s dismissal of Neumann’s

action, we would not need to determine whether her claim

was subject to the anti-SLAPP statute. Because the trial

court awarded attorney fees under the anti-SLAPP statute,

however, we remand the remaining issues under that stat-

ute to the Court of Appeals for decision.

724 Neumann v. Liles

III. CONCLUSION

For the reasons we have explained, we conclude that

the trial court did not err in dismissing Neumann’s defama-

tion claim, because Liles’s statements are entitled to First

Amendment protection. We therefore reverse the decision of

the Court of Appeals on that issue. We remand to the Court

of Appeals to resolve Neumann’s argument that her claim is

not subject to the provisions of Oregon’s anti-SLAPP statute,

and to resolve Liles’s cross-appeal relating to the amount of

attorney fees awarded by the trial court.

The decision of the Court of Appeals is reversed,

and the case is remanded to the Court of Appeals. The deci-

sion of the circuit court that dismissed plaintiffs’ defama-

tion claim is affirmed.

Cite as 358 Or 706 (2016) 725

APPENDIX

ORS 31.150 provides:

“(1)  A defendant may make a special motion to

strike against a claim in a civil action described in sub-

section (2) of this section. The court shall grant the motion

unless the plaintiff establishes in the manner provided by

subsection (3) of this section that there is a probability that

the plaintiff will prevail on the claim. The special motion to

strike shall be treated as a motion to dismiss under ORCP

21 A but shall not be subject to ORCP 21 F. Upon granting

the special motion to strike, the court shall enter a judgment

of dismissal without prejudice. If the court denies a special

motion to strike, the court shall enter a limited judgment

denying the motion.

“(2)  A special motion to strike may be made under

this section against any claim in a civil action that arises

out of:

“(a)  Any oral statement made, or written state-

ment or other document submitted, in a legislative, execu-

tive or judicial proceeding or other proceeding authorized by

law;

“(b)  Any oral statement made, or written state-

ment or other document submitted, in connection with an

issue under consideration or review by a legislative, execu-

tive or judicial body or other proceeding authorized by law;

“(c)  Any oral statement made, or written state-

ment or other document presented, in a place open to the

public or a public forum in connection with an issue of public

interest; or

“(d)  Any other conduct in furtherance of the exer-

cise of the constitutional right of petition or the constitu-

tional right of free speech in connection with a public issue

or an issue of public interest.

“(3)  A defendant making a special motion to strike

under the provisions of this section has the initial burden of

making a prima facie showing that the claim against which

the motion is made arises out of a statement, document or

conduct described in subsection (2) of this section. If the

726 Neumann v. Liles

defendant meets this burden, the burden shifts to the plain-

tiff in the action to establish that there is a probability that

the plaintiff will prevail on the claim by presenting substan-

tial evidence to support a prima facie case. If the plaintiff

meets this burden, the court shall deny the motion.

“(4)  In making a determination under subsection

(1) of this section, the court shall consider pleadings and

supporting and opposing affidavits stating the facts upon

which the liability or defense is based.

“(5)  If the court determines that the plaintiff has

established a probability that the plaintiff will prevail on

the claim:

“(a)  The fact that the determination has been

made and the substance of the determination may not be

admitted in evidence at any later stage of the case; and

“(b)  The determination does not affect the burden

of proof or standard of proof that is applied in the proceeding.”

ORS 31.152 provides:

“(1)  A special motion to strike under ORS 31.150

must be filed within 60 days after the service of the com-

plaint or, in the court’s discretion, at any later time. A hear-

ing shall be held on the motion not more than 30 days after

the filing of the motion unless the docket conditions of the

court require a later hearing.

“(2)  All discovery in the proceeding shall be stayed

upon the filing of a special motion to strike under ORS 31.150.

The stay of discovery shall remain in effect until entry of the

judgment. The court, on motion and for good cause shown,

may order that specified discovery be conducted notwith-

standing the stay imposed by this subsection.

“(3)  A defendant who prevails on a special motion

to strike made under ORS 31.150 shall be awarded reason-

able attorney fees and costs. If the court finds that a special

motion to strike is frivolous or is solely intended to cause

unnecessary delay, the court shall award costs and reason-

able attorney fees to a plaintiff who prevails on a special

motion to strike.

Cite as 358 Or 706 (2016) 727

“(4)  The purpose of the procedure established

by this section and ORS 31.150 and 31.155 is to provide a

defendant with the right to not proceed to trial in cases in

which the plaintiff does not meet the burden specified in

ORS 31.150 (3). This section and ORS 31.150 and 31.155 are

to be liberally construed in favor of the exercise of the rights

of expression described in ORS 31.150 (2).”

ORS 31.155 provides:

“(1)  ORS 31.150 and 31.152 do not apply to an

action brought by the Attorney General, a district attor-

ney, a county counsel or a city attorney acting in an official

capacity.

“(2)  ORS 31.150 and 31.152 create a procedure for

seeking dismissal of claims described in ORS 31.150 (2) and

do not affect the substantive law governing those claims.”