The Board of Forensic Document Examiners (“Board”), a non-profit organization that administers a certification program for forensic document examiners, filed a defamation lawsuit against the American Bar Association (“ABA”) alleging that it suffered reputational harm from an article published in an ABA law journal. A federal district court dismissed the claim finding that the statements in the journal article were non-actionable opinion protected from liability by the First Amendment. The non-profit appealed and the Seventh Circuit, agreeing with the district court, affirmed the dismissal.
The summer 2015 edition of The Judges’ Journal, a journal published by the ABA, contained an article written by Thomas Vastrick, a forensic document examiner who was certified by one of the plaintiff’s competitors, the American Board of Forensic Document Examiners. The article purported to offer judges guidance for evaluating the qualifications and credentials of forensic document examiners, which analyze and compare handwriting and provide expert testimony in judicial proceedings. In the four-page article, Vastrick urged judges to look for experts certified by the American Board of Forensic Document Examiners and to “be wary of other certifying bodies.”
The article did not mention the Board by name. Nonetheless, the Board believed that the article defamed its members by creating the impression that they were “lesser qualified” examiners than those certified by the American Board of Forensic Document Examiners. The Board responded to the article by filing suit alleging defamation per se and invasion of privacy on behalf of its members generally and one member specifically who was singled out in Vastrick’s article.
The Board’s complaint focused on four specific statements in the article. The first statement urged judges that to be “an appropriately trained forensic document examiner,” the examiner should have completed “a full-time, in-residence training program lasting a minimum of 24 months[.]” The next statement claimed that “The American Board of Forensic Document Examiners … is the only certification board recognized by the broader forensic science community, law enforcement, and courts for maintaining principles and training requirements concurrent with the published training standards” and warned judges to “be wary of other certifying bodies.” The remaining two statements generally warned judged to look out for and be wary of examiners certified by any certification board other than The American Board of Forensic Document Examiners.
The Seventh Circuit began its discussion by noting that not all negative statements are actionable. Statements of opinion are not actionable, the court explained, because they are protected by Illinois law and the First Amendment. In determining that the statements at issue in the article were statements of opinion, the court looked at (1) the context in which the statements were made and (2) whether the statements were capable of verification.
In considering the context of the statements, the court concluded that the article as a whole supported the conclusion that the statements were an expression of one practitioner’s advice based on his subjective beliefs and experiences. In considering the actual statements themselves, the court similarly concluded that they were non-actionable statements of opinion. Specifically, the court reasoned that the statement “appropriately trained” signaled that Vastrick was simply “offering his own view on adequate qualifications for a forensic examiner, not describing factual, objective standards for qualifications.” Similarly, the court found the statements non-actionable under the Lanham Act because the Lanham Act only applies to statements “of fact.”
You can read the entire opinion here.
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