Jerome R. Lewis v. Time Incorporated
9 Media L. Rep. (BNA) 1984, 710 F.2d 549, 36 Fed. R. Serv. 2d 1320 (1983)
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Rule of Law:
A statement of opinion, even if it implies dishonesty or professional misconduct, is constitutionally protected from defamation liability if it is based on accurately reported, publicly disclosed true facts, allowing the reader to assess the opinion's basis.
Facts:
- TIME magazine published a 10-page article titled “Those #*X§!!! Lawyers” in its April 10, 1978 issue.
- A subsection of the article, titled “Ethics Enforcement,” commented that the legal profession is “reluctant to discipline its shadier practitioners.”
- The article specifically mentioned Jerome Lewis, stating that “Thanks to painfully slow bar discipline, a northern California lawyer named Jerome Lewis is still practicing law despite a $100,000 malpractice judgment against him in 1970 and a $60,000 judgment including punitive damages in 1974 for defrauding clients of money....”
- In 1970, a jury had awarded damages of $100,000 to a client who sued Lewis for malpractice.
- In 1974, another client had won $60,000, including punitive damages, on a counterclaim against Lewis for fraud.
Procedural Posture:
- Jerome Lewis sued TIME Inc., Mid-Cal Periodical Distribution, and various “Does” in California state court on March 2, 1979, alleging libel, slander, invasion of privacy, and intentional infliction of emotional distress.
- Mid-Cal Periodical Distribution was dismissed from the case before being served, and Lucky Stores, Inc. was served as defendant Doe I.
- TIME Inc. removed the case to the United States District Court for the Eastern District of California, alleging diversity jurisdiction.
- Lewis moved to remand the case to state court, arguing that Lucky Stores, a California corporation, destroyed diversity; the district court denied this motion, citing First Amendment concerns and probable fraudulent joinder.
- The district court entered summary judgment in favor of Lucky Stores, Inc.
- The district court granted partial summary judgment in favor of TIME Inc., finding that Lewis’s claims were bound into one for defamation.
- The district court took judicial notice of two state court judgments against Lewis, holding that TIME’s statements about these judgments were truthful and protected, except for the use of the plural “clients” versus a single “client” in the fraud judgment.
- The district court ruled that all negative inferences from the article (e.g., “shadier practitioners,” “painfully slow bar discipline”) were protected statements of opinion.
- After the grant of partial summary judgment, the only remaining issue to be tried was the significance of the plural “clients” in the article. Lewis’s motion for relief from an untimely demand for a jury trial was initially granted, then on the court’s own motion reconsidered and denied.
- Following a bench trial (trial to the court), the district judge found that the addition of the “s” in “clients” was not a material variance from the truth.
- Judgment for TIME Inc. was entered on December 15, 1981, from which Lewis appealed.
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Issue:
Does the First Amendment protect a magazine's statements of opinion, implying a lawyer is a "shady practitioner" and requires "painfully slow bar discipline," when these opinions are based on accurately reported, publicly disclosed judgments against the lawyer for malpractice and fraud?
Opinions:
Majority - DUNIWAY, Circuit Judge
Yes, the First Amendment protects the magazine's statements of opinion, even if they imply dishonesty or professional misconduct, when these opinions are based on accurately reported and publicly disclosed facts. The court affirmed the district court's finding that the general negative inferences (e.g., “shadier practitioners,” “painfully slow bar discipline”) were protected expressions of opinion based on true statements of fact. Citing Gertz v. Robert Welch, Inc., the court reiterated that “under the First Amendment there is no such thing as a false idea,” and thus opinions cannot be “false” and therefore not actionable defamation. Applying the three-factor test from Information Control Corp. v. Genesis One Computer Corp., the court found that the article, as a critical overview of the legal profession, made an effort to persuade readers using Lewis’s case as specific support. The court further held that Restatement (Second) of Torts § 566 is instructive: an opinion is actionable only if it implies the allegation of undisclosed defamatory facts. Here, TIME clearly set forth the true facts (the judgments for fraud and malpractice) underlying its opinion that Lewis was a “shady practitioner.” When true facts are stated, the First Amendment shields opinions derived from them, even if those opinions charge dishonesty or criminal activity, as long as the underlying facts are accurately reported. The use of “clients” instead of “client” for the fraud judgment was deemed not a material variance given multiple judgments against Lewis. Regarding Lewis's motion to remand, the court found that diversity jurisdiction existed at the time of final judgment, as only TIME (a non-California corporation) remained as a defendant. The court also held that Lewis was not entitled to a jury trial for the remaining factual issue because he failed to make a timely demand under federal rules after removal, and the district court's discretion under Federal Rule of Civil Procedure 39(b) does not permit relief for mere oversight or inadvertence.
Analysis:
This case significantly clarifies the distinction between fact and opinion in defamation law, particularly in the context of media reporting on public figures or issues of public concern. By embracing Restatement (Second) of Torts § 566, the Ninth Circuit established that if an opinion, even a negative or harsh one, is explicitly based on accurately reported, true underlying facts, it receives robust First Amendment protection. This ruling limits defamation claims against the press when they publish critical assessments alongside their factual basis, promoting “uninhibited, robust, and wide-open” debate on matters of public interest.
