United States Court of Appeals,
PHANTOM TOURING, INC., Plaintiff, Appellant,
AFFILIATED PUBLICATIONS, et al., Defendants, Appellees.
Nos. 91-1590, 91-1741.
Heard Nov. 4, 1991.
Decided Jan. 10, 1992.
company which produced musical-comedy brought defamation action against
newspaper, owners, and reporters alleging that newspaper articles
falsely accused touring company of deliberate effort to pass off its
musical- comedy as widely acclaimed Broadway show of same name. The
United States District Court for the District of Massachusetts, Walter
Jay Skinner, J., dismissed complaint. Touring company appealed. The
Court of Appeals, Coffin, Senior Circuit Judge, held that newspaper
articles were not actionable defamation.
Ronald D. Barber with whom H. Yale Gutnick, Strassburger, McKenna, Gutnick & Potter, Pittsburgh, Pa., Dennis J. Kelly, and Burns & Levinson, Boston, Mass., were on brief, for plaintiff, appellant.
E. Susan Garsh with whom Jonathan M. Albano, Lisa A. Eichhorn, and Bingham, Dana & Gould, Boston, Mass., were on brief, for defendants, appellees.
Before BREYER, Chief Judge, COFFIN, Senior Circuit Judge, and SELYA, Circuit Judge.
COFFIN, Senior Circuit Judge.
Appellant Phantom Touring Company produces a musical-comedy version
of "The Phantom of the Opera" that is not the hugely
successful, widely acclaimed Broadway show later created by Andrew
Lloyd Webber. In a series of articles published in late 1989, the
Boston Globe queried, in a disparaging tone, whether appellant's
advertising made the distinction between the two "Phantoms" clear to
the ticket-buying public. Appellant sued for defamation, [FN1]
claiming that the newspaper falsely accused it of a deliberate effort
to pass off its show--dubbed the "Fake Phantom"--as "the real thing."
The district court dismissed the complaint on the ground that the
articles contained only statements of opinion protected by the First
Amendment. We agree that none of the articles is actionable and,
complaint also contained causes of action for interference with
contractual rights and interference with prospective business
advantage. Appellant does not press these claims on appeal.
I. Background [FN2]
FN2. We draw
our background information primarily from the complaint, a sworn
statement of facts by the producer of appellant's "Phantom" and
appellant's reply to defendants' counterclaims.
The original "Phantom of the Opera" is a 1911 novel by Gaston
Leroux, which is now in the public domain and therefore available for
adaptation by anyone who chooses to make use of it. Appellant's
version, a musical comedy show featuring the music of several
classical composers, was created by British playwright Ken Hill and
performed publicly for the first time in 1977 at the Duke's Playhouse
in England. In 1984, the Hill production again was staged in England,
where Andrew Lloyd Webber saw it. Webber and Hill began negotiations
to bring the show to London's West End, but nothing ever came of the
collaboration. Instead, Webber wrote and, in October 1986, opened his
own "Phantom" in London. The Webber production, a drama with an
original musical score, became what the Globe termed a "megahit." In
January 1988, Webber's "Phantom" opened in New York.
Meanwhile, in July 1986, Hill's "Phantom" was revived for a short run
in St. Louis. It attracted the attention of Jonathon Reinis, a theatre
producer, who brought the show to San Francisco for a nine-month run
beginning in September 1988. Buoyed by the show's success in San
Francisco, Reinis and others formed the appellant Phantom Touring
Company to take the show on a national tour that included a visit to
the Wang Center in Boston.
In September 1989, about a week before tickets for Hill's "Phantom" at
the Wang were to go on sale, the Globe published the first of a number
of articles suggesting that ticket buyers should be wary of Hill's
"Fake Phantom." According to the article, headlined "The phantom of
'The Phantom,' " Hill had been "thriving off the confusion created by
the two productions." The article quoted a drama critic for The
Washington Post who said Hill's version " 'bears as much resemblance to
its celebrated counterpart as Jell-O does to Baked Alaska,' " and who
further described the show as " 'a rip-off, a fraud, a scandal, a
snake-oil job.' "
This story and at least one other that followed not only pointed out
that Hill was benefiting from mistaken identity, but also suggested
that the confusion was intentional. The newspaper observed that the
show was being advertised in bold type as "The Original London Stage
Musical." While technically accurate, since Hill's production in fact
predated Webber's, the notice appeared to the Globe to be drawing
heavily on the reputation of the Webber show.
Appellant filed suit
in November 1989, alleging that the Globe articles contained false and
defamatory statements and innuendo concerning Phantom Touring. [FN3]
The complaint referred to numerous specific phrases and words in the
articles as well as to an alleged underlying message that the plaintiff
was dishonest and intentionally misleading or cheating the public.
Boston Globe is owned and operated by defendants Affiliated
Publications, Inc. and Globe Newspaper Corporation. For the sake of
convenience, we refer to the corporate defendants solely as the Globe.
Phantom Touring also sued two individual writers, Kevin Kelly and Patti
Hartigan, who wrote the relevant articles.
Defendants moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c)
and, in a brief order written on the face of the motion, the district
court ruled for the Globe. It explained its decision as follows:
I have carefully examined the publications and conclude that in context
they contain only protected expression of opinion and do not imply
criminal conduct on the part of the plaintiffs.
Appellant unsuccessfully moved for reconsideration and, following the Supreme Court's decision in Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990),
which clarified the principles governing the First Amendment's
protection of statements of opinion, urged the district judge to vacate
its ruling. The district court denied appellant's motion, holding,
without discussion, that "the judgment should stand even in the light
In this appeal, Phantom Touring contends that the district court's
decision reflects the erroneous view that all of the disputed
statements in the Globe articles were privileged under the First
Amendment simply because they could be classified as opinion. Appellant
argues that a careful analysis of the articles, in light of the
principles set out in Milkovich, demonstrates that it is entitled to jury consideration of its libel claim. In the next section, we describe briefly how Milkovich
affected defamation law and why application of the principles expressed
in that opinion require us to affirm the district court's judgment.
II. Discussion A. Legal Framework [FN4]
FN4. The Globe argues that we should apply Massachusetts constitutional and common law, arguably more generically protective of
statements of opinion than the First
Amendment. Because we believe the challenged articles are protected
under First Amendment doctrine, as laid out in Milkovich, we need go no further. Moreover, we think it likely that it is the basis upon which the district court made its decision.
the Supreme Court dismissed the notion that there is a "wholesale
defamation exemption for anything that might be labeled 'opinion'." 110 S.Ct. at 2705.
It concluded that the relevant question is not whether challenged
language may be described as an opinion, but whether it reasonably
would be understood to declare or imply provable assertions of fact. See id. at 2707.
Notwithstanding its rejection of a specific "opinion" privilege, the
Court assured that opinions about matters of public concern would
continue to receive substantial constitutional protection under various
extant First Amendment principles. It reaffirmed three propositions
which are relevant to our consideration of this case in its present
posture. The first, of "[f]oremost" importance, is the principle
established in Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986), that statements made by a media defendant "must be provable as false" before there can be defamation liability. 110 S.Ct. at 2706. The Court reaffirmed that "Hepps ensures that a statement of opinion relating to matters of public
concern which does not contain a provably false factual connotation will receive full constitutional protection." Id.
(footnote omitted). Thus, a statement such as, "That's the worst play
I've ever seen," would be protected not because it is labeled an
opinion but because it is so subjective that it is not "susceptible of
being proved true or false," id. at 2707.
emphasized a line of cases establishing protection for statements that
"cannot 'reasonably [be] interpreted as stating actual facts' about an
individual," 110 S.Ct. at 2706 (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50, 108 S.Ct. 876, 878, 99 L.Ed.2d 41 (1988) (involving ad parody)). See also Letter Carriers v. Austin, 418 U.S. 264, 284-86, 94 S.Ct. 2770, 2781-82, 41 L.Ed.2d 745 (1974) (use of the word "traitor" not basis for defamation action since used "in a loose, figurative sense"); Greenbelt Cooperative Publishing Ass'n, Inc. v. Bresler, 398 U.S. 6, 14, 90 S.Ct. 1537, 1541, 26 L.Ed.2d 6 (1970)
(the word "blackmail" not actionable in context). These cases
explicitly protect "rhetorical hyperbole" and other types of
"imaginative expression" that writers use to enliven their prose. 110 S.Ct. at 2706.
For example, a theater critic who wrote that, "The producer who decided
to charge admission for that show is committing highway robbery," would
be immune from liability because no reasonable listener would
understand the speaker to be accusing the producer of the actual crime
In addition to considering whether the challenged
speech contained "loose, figurative, or hyperbolic language which would
negate the impression" that a factual statement was being made, id. at 2707,
the Court also indicated that the context in which language appears
must be evaluated to see whether "the general tenor of the article
negate[s] this impression," id. Thus, while eschewing the fact/opinion terminology, Milkovich
did not depart from the multi-factored analysis that had been employed
for some time by lower courts seeking to distinguish between actionable
fact and nonactionable opinion. See, e.g., McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir.1987) (adopting totality of the circumstances analysis); Ollman v. Evans, 750 F.2d 970, 974-75 (D.C.Cir.1984) (en banc) (same).
Finally, the Court referred to what we would characterize as a safety
valve determination, in which we are obliged to " 'make an independent
examination of the whole record,' " Milkovich, 110 S.Ct. at 2705 (quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502 (1984) (quotation omitted)), to "assur[e]
that the foregoing determinations will be made in a manner so as not to
'constitute a forbidden intrusion o[n] the field of free expression,' "
id. 110 S.Ct. at 2707 (quoting Bose, 466 U.S. at 499, 104 S.Ct. at 1958 (quotation omitted)).
B. Application of the Legal Principles
In its complaint, appellant referred to six articles that appeared in
the Globe between September 22 and October 7,
1989. One of those articles is not discussed in the brief on appeal,
and we therefore assume that appellant does not seek review of the
district court's decision with respect to that article. [FN5]
Appellant does argue in its appellate brief, however, that another
article, one not cited in the complaint, was defamatory. The story, "
'Phantom' Confusion Still Flaring," was published on October 13, 1989,
before appellant filed its complaint. We believe this article is not
properly before us, and therefore decline to consider it. [FN6] Accordingly, we turn to our consideration of the remaining five articles.
FN5. The article apparently dropped from the case appeared on October 4, 1989 under the headline "Other 'Phantom' Smashes Record."
Appellant appears to believe it appropriate for us to review the
October 13 article because several sentences from the piece were cited
in its brief in support of its Motion for Reconsideration. We disagree.
In our view, a defendant is entitled to knowledge of the precise
language challenged as defamatory, and the plaintiff therefore is
limited to its complaint in defining the scope of the alleged
defamation. If plaintiff wished to enlarge its case beyond the six
articles originally challenged, it should have sought to amend the
In our view, most of the challenged language is easily identified as non-actionable under the principles outlined in Milkovich.
Many of the statements cited in the complaint and appellate brief
either constitute obviously protected hyperbole or are not susceptible
of being proved true or false. Such, for example, is the language in
"The phantom of the 'Phantom' " quoting a critic who described the Hill
production as "a rip-off, a fraud, a scandal, a snake-oil job." Not
only is this commentary figurative and hyperbolic, but we also can
imagine no objective evidence to disprove it. Whether appellant's
"Phantom" is "fake" or "phony" is similarly unprovable, since those
adjectives admit of numerous interpretations. See McCabe v. Rattiner, 814 F.2d at 842
("The lack of precision [in the meaning of the word 'scam'] makes the
assertion 'X is a scam' incapabable of being proven true or false.") [FN7]
FN7. It is
likewise impossible to verify whether the Hill advertising was--as
described in "The phantom of the 'Phantom' "--"subliminally
deliberate," the two words in that phrase seeming to cancel each other
out. See The Random House Dictionary of the English Language
1894 (2d ed.1987) (defining "subliminal" as "existing or operating
below the threshold of consciousness"). Similarly, the
an undertow" phrase that appeared in
the same article is figurative language with no concrete definition.
Even the less figurative assertion that appellants are "blatantly
misleading the public," which appeared in "Williams and 'The Phantom,'
" is subjective and imprecise, and therefore not capable of
verification or refutation by means of objective proof.
Appellant's claim of defamation is patently deficient with respect to
one news story, "Ticket buyers are still hot for 'Phantom,' " because
the article lacks any even arguably defamatory assertions. Appellant's
brief points to the following language:
The production is being
billed as the "Original London Stage Musical" but is in no way related
to the Andrew Lloyd Webber "Phantom" that was a smash hit in London and
has broken all ticket records in New York since it opened in Janaury,
* * * * * * The ads came into question in
May when ticket sales opened in Atlanta, one of the stops on the
70-week national tour. The Georgia Governor's Office of Consumer
Affairs looked into the possibility of deception, but determined that
the advertisements were not deceptive so long as they included a
disclaimer that the show was not the Lloyd Webber version.
We think it inconceivable that the Globe could be held liable for reporting,
in the first of these paragraphs, that Hill's "Phantom" is not Webber's. As for the
second paragraph, appellant does not challenge the accuracy of the
information. Because the article also points out that appellant's
Boston advertising includes a disclaimer, it effectively tells readers
that the advertising is not deceptive. We thus find nothing actionable
in this article.
In our view, appellant's claim of defamation is colorable in only one
respect. Two of the contested articles, both columns written by theater
critic Kevin Kelly, contain language insinuating that Phantom Touring
was marketing its production dishonestly--that it deliberately was
confusing the public. The first such statement appears in "The phantom
of the 'Phantom' " [hereafter "The phantom 'Phantom' "], where Kelly
questions whether "Hill & Company [is] trying to score off the
success of Andrew Lloyd Webber's 'Phantom' ". The second reference
appears in "Canny, confusing marketing for this 'Phantom' " [hereafter
When it was suggested to Josiah Spaulding,
who heads the Wang (and wags it), that, surely, he must be aware the
incoming "Phantom"--a musical comedy by Ken Hill--is deliberately
confusing people; that, in fact, it wouldn't be on tour at all if the
Webber "Phantom" had not become the megahit it has, he said to me,
"We're not in the business of denying any genre to come here and rent
Arguably, the connotation of deliberate deception
is sufficiently factual to be proved true or false, and therefore is
vulnerable under Milkovich.
To rebut the implied assertion, appellant might be able to present
objective evidence demonstrating longstanding plans to take its
"Phantom" on a nationwide tour of the United States, or evidence
showing that the "Original London production" language in its
advertising was developed before Webber's "Phantom" rose to prominence,
and thus was not designed to deceive consumers.
Whether or not the
allegation of intentional deception meets the "provable as true or
false" criterion, however, we think the context of each article
rendered the language not reasonably interpreted as stating "actual
facts" about appellant's honesty. [FN8]
The sum effect of the format, tone and entire content of the articles
is to make it unmistakably clear that Kelly was expressing a point of
view only. As such, the challenged language is immune from liability.
offer no views on whether appellant's defamation claim is deficient for
reasons other than the nonfactual nature of the challenged language,
such as truthfulness or lack of malice.
The nonfactual nature of Kelly's articles is indicated at first
glance by the format. Both appeared as a regularly run theater column,
a type of article generally known to contain more opinionated writing than the typical news report. [FN9]
The structure and tone of the language reinforced this subjective
design. In "The phantom 'Phantom,' " for example, the question of
appellant's dishonesty was posed rhetorically and then immediately
defused by Reinis' lengthy response. [FN10]
In "Canny marketing," the issue again was raised as a question posed to
the Wang Center's manager, and Kelly's snide, exasperated language
indicated that his comments represented his personal appraisal of the
factual information contained in the article. Cf. Milkovich, 110 S.Ct. at 2707
(neither the type of language used nor the general tenor of the article
would "negate the impression that the writer was seriously maintaining
petitioner committed the crime of perjury").
FN9. Although the Court in Milkovich
gave no significance to the fact that the challenged article was a
sports column, we do not understand the Court to have rejected the
relevance of format, but simply to have discounted it in the
circumstances of that case. See 110 S.Ct. at 2707 (referring to the general tenor of the article).
FN10. The question and answer as they appeared in the article were as follows:
So the question comes down to, is Hill & Company trying to score off the
success of Andrew Lloyd Webber's "Phantom"?
"Whatever confusion there is between the two," Reinis said,
"it's about time Ken Hill got his just desserts," a statement implying
that Hill has been ill used by Webber and [his producer] Mackintosh.
"They've wished us luck. Our attitude is: we're not Andrew Lloyd
Webber's 'Phantom.' We say that clearly in the ads. We're not a
melodrama. We're musical comedy in the old-fashioned sense. We're
nothing near the scope and size of Webber's 'Phantom.' We're an
evening's event for entertainment. Our attitude is, you can enjoy both
for completely different reasons."
Of greatest importance, however, is the breadth of Kelly's
articles, which not only discussed all the facts underlying his views
but also gave information from which readers might draw contrary
conclusions. In effect, the articles offered a self-contained
give-and-take, a kind of verbal debate between Kelly and those persons
responsible for booking and marketing appellant's "Phantom." Because
all sides of the issue, as well as the rationale for Kelly's view, were
exposed, the assertion of deceit reasonably could be understood only as
Kelly's personal conclusion about the information presented, not as a
statement of fact.
Kelly explained, for example, that he considered appellant's
advertising to be misleading--despite Hill's accurate claim to be the
"original" London production--because
it is the Webber
"Phantom" that is currently the big hit in London, and has been since
it opened in 1986. It is the Webber "Phantom" that has broken box
office records wherever it has played. It is the Webber "Phantom"
that's original. Hill uses music from Verdi, Gounod, Offenbach, Mozart
and Donizetti. Webber wrote his own. Hill's is a self-styled
"melodramatic spoof." Webber's has a serious book written by himself
and Richard Stilgoe. ["Canny marketing"] [FN11]
FN11. "The phantom 'Phantom' " contains similar information about each production.
Kelly also made clear that he doubted appellant's marketing
sincerity because--while distinguishing between the two "Phantoms" in
its advertising--it did so discreetly, reserving "[t]he big type ...
for the show's resonant title with a banner head reading ' "The
Original London Stage Musical" ' ["Canny marketing"]. The articles
additionally reveal that Kelly's judgment about the advertising was
based at least in part on his subjective view that Hill's show lacked
artistic merit; it must be the result of deceptive marketing, he
implied, if "a spoof without stars or anyone of theatrical name value"
could produce $400,000 in ticket sales in a few days. ["Canny
United States Medical Corp. v. M.D. Buyline, Inc., 753 F.Supp. 676, 677, 679 (S.D. Ohio 1990)
(no background facts offered to readers to explain statement that
plaintiff "consistently gouges customers on price and service").
the other hand, Kelly forthrightly reported that not everyone shared
his artistic judgment, and that the Hill production had encountered its
fair share of success. In "The phantom 'Phantom,' " he quoted producer
Reinis' report that 200,000 people saw the production during a lengthy
run in San Francisco, as well as Reinis' claim that "[c]ritics may not
like us, but audiences do." This competing information about the merit
of Hill's "Phantom" underscored the personal and nonfactual nature of
Kelly's views about the production and its attendant publicity.
Kelly's full disclosure of the facts underlying his judgment--none of
which have been challenged as false--makes this case fundamentally
different from Milkovich.
The column found actionable there focused on a court decision reversing
an administrative ruling that had suspended a high school wrestling
team from a tournament because of a brawl at an earlier meet. The
column was headlined, "Maple [Heights High School] beat the law with
the 'big lie,' " and the writer's theory was that school officials had
lied at the court hearing in order to persuade the judge to overrule
the athletic association's decision. See 110 S.Ct. at 2698 n. 2.
The reporter had not been at the judicial proceeding. The column noted,
however, that he had been the only non-involved
person at both the controversial meet and the administrative hearing, a
fact that could have suggested to readers that he was uniquely situated
to draw the inference of lying. The column contained no response from
the targets of the criticism.
Thus, the article in Milkovich,
unlike Kelly's "Phantom" columns, was not based on facts accessible to
everyone. Indeed, a reader reasonably could have understood the
reporter in Milkovich to be suggesting that he was singularly capable of evaluating
the plaintiffs' conduct. In contrast, neither of Kelly's columns
indicated that he, or anyone else, had more information about Phantom
Touring's marketing practices than was reported in the articles. [FN12] While Kelly's readers implicitly were invited to draw their own conclusions from the mixed information provided, the Milkovich
readers implicitly were told that only one conclusion was possible.
This is a crucial distinction, and it makes it clear why the result
reached in Milkovich is inappropriate here.
its brief, appellant contends that the Globe lent support to its
defamatory accusations by reporting that the Georgia Governor's Office
of Consumer Affairs required an advertising disclaimer distinguishing
Hill's show from Webber's. We note, first, that this information did
not appear in the two "Backstage" columns that contain the language
our attention. Second, the two
articles that did contain this information pointed out that appellant's
Boston advertising included a disclaimer, and thus implicitly told
readers that the advertising was legally adequate. ["Ticket buyers are
still hot for 'Phantom,' " and "Williams and 'The Phantom.' "]
In this case, the comprehensive nature of the information provided in
the articles, aided by the column format and the style and tenor of the
writing, lead inevitably to the conclusion that no reasonable reader
could interpret Kelly's statements as factual assertions of dishonesty.
Accordingly, under Milkovich, they are not actionable. [FN13]
FN13. Although the Supreme Court's discussion in Milkovich
did not explicitly address statements reasonably viewed only as opinion
because based on fully disclosed information, its reaffirmation of the
line of cases represented by Bresler, 398 U.S. at 6, 90 S.Ct. at 1537, Letter Carriers, 418 U.S. at 264, 94 S.Ct. at 2770, and Falwell, 485 U.S. at 46, 108 S.Ct. at 877,
confirmed that, to be actionable, a challenged statement must be
understood as stating actual facts about an individual. That principle
unquestionably excludes from defamation liability not only statements
of rhetorical hyperbole--the type of speech at issue in the
Bresler-Letter Carriers-Falwell cases--but also statements clearly recognizable as pure opinion because their factual premises are revealed. See Milkovich, 110 S.Ct. at 2712 n. 7
(dissenting opinion of Brennan, J.). Both types of assertions have an
identical impact on readers-- neither reasonably appearing factual--and
hence are protected equally under the principles espoused in Milkovich.
A number of courts, including Massachusetts, have immunized
statements of opinion based on fully disclosed nondefamatory facts. See National Ass'n of Government Employees, Inc. v. Central Broadcasting Corp., 379 Mass. 220, 226-28, 396 N.E.2d 996 (1979)
("[A] state of affairs in which opinion is recognizable as such because
its factual ingredient is known or assumed, presents a clear case for
full First Amendment protection including freedom from civil
liability.") See also, e.g., Potomac Valve & Fitting Inc., 829 F.2d 1280, 1290 (4th Cir.1987); Dunlap v. Wayne, 105 Wash.2d 529, 540, 716 P.2d 842, 848-49 (1986); Restatement (Second) of Torts § 566 comment c (1977).
III. Conclusion The Supreme Court in Milkovich reasserted its commitment to ensuring that debate on public issues remain " 'uninhibited, robust, and wide-open,' " 110 S.Ct. at 2706 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84
S.Ct. 710, 720, 11 L.Ed.2d 686 (1964)),
while acknowledging the countervailing concern that due weight be given
to society's " 'pervasive and strong interest in preventing and
redressing attacks upon reputation,' " id. 110 S.Ct. at 2707 (quoting Rosenblatt v. Baer, 383 U.S. 75, 86, 86 S.Ct. 669, 676, 15 L.Ed.2d 597 (1966)). For the reasons we have explained, the Globe articles tread a permissible path.
The judgment of the district court is therefore affirmed.
Phantom Touring, Inc. v. Affiliated Publications
953 F.2d 724, 19 Media L. Rep. 1786
END OF DOCUMENT