Before Schwelb, Reid, and Glickman, Associate Judges.
The opinion of the court was delivered by: Schwelb, Associate Judge
Appeal from the Superior Court of the District of Columbia
Hon. Russell F. Canan, Trial Judge
Hon. Ellen S. Huvelle, Trial Judge
This appeal arises from an action for libel. The plaintiffs are Guilford Transportation Industries, Inc. (Guilford), Timothy Mellon, and David Fink. Guilford operates a freight railroad system in New England, consisting of the Maine Central, the Boston and Maine, and Springfield Terminal railroads. Mellon and Fink founded Guilford in 1981 and own it. Mellon is a member of Guilford's Board of Directors, and Fink manages Guilford's operations. The sole defendant is Frank Wilner, the author of an "Op-Ed" column which appeared on June 2, 1997 in the Journal of Commerce, a trade publication said to be widely read by persons in the railroad industry and by regulatory officials. In this column, a copy of which is appended to this opinion, Wilner discussed an attempt by Guilford to purchase or lease from Amtrak certain rail operations in the northeastern United States.
In their complaint, which was filed on July 8, 1997, the plaintiffs allege that Wilner's column is defamatory and contains demonstrably false statements of fact. Wilner responds that the representations of which the plaintiffs complain are all either true, or incapable of bearing a defamatory meaning, or statements of opinion protected by the First Amendment. In a comprehensive oral ruling in which she focused on the potential of this type of suit for chilling constitutionally protected speech, Judge Ellen S. Huvelle granted summary judgment in favor of Wilner. The plaintiffs now appeal.
"At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern." Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50 (1988). If the First Amendment's guarantees of freedom of speech and of the press are to ensure that these rights are meaningful not simply on paper, but also in the practical context of their exercise, then a newspaper Op-Ed column discussing a subject of public interest must surely be accorded a high level of protection, lest the expression of critical opinions be chilled. This is so because
[t]he reasonable reader who peruses [a] column on the editorial or Op-Ed page is fully aware that the statements found there are not "hard" news like those printed on the front page or elsewhere in the news sections of the newspaper. Readers expect that columnists will make strong statements, sometimes phrased in a polemical manner that would hardly be considered balanced or fair elsewhere in the newspaper. . . . That proposition is inherent in the very notion of an "Op-Ed page." Because of obvious space limitations, it is also manifest that columnists or commentators will express themselves in condensed fashion without providing what might be considered the full picture. Columnists are, after all, writing a column, not a full-length scholarly article or a book. This broad understanding of the traditional function of a column like Evans and Novak will therefore predispose the average reader to regard what is found there to be opinion. Ollman v. Evans, 242 U.S. App. D.C. 301, 317, 750 F.2d 970, 986 (1984) (en banc) (plurality opinion), cert. denied, 471 U.S. 1127 (1985) (citation and footnote omitted) (discussing a column in the Washington Post by Rowland Evans and Robert Novak).
Although the Supreme Court has made it clear, since Ollman was decided, that statements of "opinion" are not constitutionally protected if they assert provably false and defamatory facts, see Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), the constitutional principles that animate the passage we have quoted from Ollman remain equally compelling and equally good law today. *fn1 See, e.g., Moldea v. New York Times Co., 306 U.S. App. D.C. 1, 2, 22 F.3d 310, 311, cert. denied, 513 U.S. 875 (1994) (Moldea II) (modifying Moldea v. New York Times Co., 304 U.S. App. D.C. 406, 15 F.3d 1137 (1994) (Moldea I)); Partington v. Bugliosi, 56 F.3d 1147, 1154 (9th Cir. 1995). "Unless persons, including newspapers, desiring to exercise their First Amendment rights are assured freedom from the harassment of lawsuits, they will tend to become self-censors." Washington Post Co. v. Keogh, 125 U.S. App. D.C. 32, 35, 365 F.2d 965, 968 (1966), cert. denied, 385 U.S. 1011 (1967). "[S]elf censorship affecting the whole public is `hardly less virulent for being privately administered.'" Id. (quoting Smith v. California, 361 U.S. 147, 154 (1959)). Moreover, in the first instance, "it is the court, not the jury, that must vigilantly stand guard against even slight encroachments on the fundamental constitutional right of all citizens to speak out on public issues without fear of reprisal." Myers v. Plan Takoma, Inc., 472 A.2d 44, 50 (D.C. 1983) (per curiam) (adopting Superior Court opinion of Weisberg, J.).
This is not an easy case, for the plaintiffs have submitted affidavits alleging that Wilner's article contains provably false statements of fact and that Wilner has admitted that he knew these statements to be false. After carefully examining the article in light of all of the plaintiffs' allegations, however, we conclude that the foregoing authorities are dispositive of this appeal, and that imposition of liability upon Wilner would tend to chill the robust debate and discussion which form an essential part of our constitutional tradition. Accordingly, we affirm the judgment in Wilner's favor.
A. "Guilford's Tempestuous Past."
This controversy began in May of 1997, when Guilford announced its intention to acquire Amtrak's train operations in the northeastern United States. The prospect of a privatized Amtrak sparked debate throughout the transportation industry. On June 2, 1997, Wilner, an economist who had frequently written on transportation issues, entered the fray with the publication of the column, entitled Guilford's Tempestuous Past, *fn2 which precipitated this litigation. At that time, Wilner was the Chief of Staff to one of the Commissioners of the Surface Transportation Board, which had replaced the Interstate Commerce Commission as the federal agency that regulates railroads and enforces the railway labor laws.
In "Guilford's Tempestuous Past," Wilner began with the rhetorical inquiry "Who is Guilford?" His response was that Guilford was a company created in 1981 when Timothy Mellon, the "38-year-old scion of the Mellon banking fortune . . . tired of a rail-tie manufacturing operation and coveted three of the nation's most ineligible railroads - bankrupt Boston & Maine, comatose Delaware & Hudson and marginally profitable Maine Central." According to Wilner, Mellon and Fink, "a former Pennsylvania Railroad operating officer and fourth-generation railroader," purchased the three railroads and unified them into the "4,000-mile rail system" that became Guilford. Mellon was described in the column as a recluse "with a master's degree in city planning from Yale and an interest in Indian rights."
Wilner then suggested that Guilford itself was a business venture which could only succeed by extracting concessions from labor:
Crucial to making Guilford profitable was cooperation from its 12 disparate labor unions. Quickly, a bitter labor-management conflict was ignited when Guilford bolted from traditional national wage and benefits negotiations. Local negotiations with the Brotherhood of Maintenance of Way Employees culminated in an almost three-month strike that required Congressional intervention.
Guilford tried another tack, leasing its component railroads - B&M, D&H, and Maine Central - to a tiny and specialized B&M subsidiary, Springfield Terminal, which enjoyed a concessionary labor contract with the United Transportation Union [UTU].
Before the lease, Springfield Terminal employed just 53 workers. Suddenly it became the de facto operator of the entire Guilford system, employing 2,000 people - and Guilford asserted that all its employees, represented by a dozen different unions, had become covered by Springfield Terminal's UTU contract providing for lower wages and greater work-rules flexibility.
The Interstate Commerce Commission - with a zealous pro-management bias in those days -sanctioned the lease agreement and referred certain labor issues to binding arbitration. When a neutral arbitrator ruled in favor of employees - concluding that existing collective bargaining agreements could no more be scrapped than existing contracts for locomotive fuel - the ICC partially overturned the award.
Wilner also described certain litigation that arose following the lease to Springfield Terminal. He wrote that the "employees demanded new union elections that resulted in a scrapping of [UTU's] single-representation contract with Springfield Terminal in favor of nine separate craft unions." This, in turn, led to more problems for Guilford:
As Guilford - through Springfield Terminal - began negotiating new agreements, work stoppages followed, as did a bankruptcy filing by D&H (which now is owned and operated by Canadian National), appeals to the federal courts of previous ICC decisions and even an allegation by Guilford that arbitrators had been unduly influenced by the New England congressional delegation.
By the early 1990's the cats were herded, but the anti-establishment Mr. Mellon and Mr. Fink already made headlines with equally chaotic legal fisticuffs with Amtrak.
By law, freight railroads are required to host Amtrak trains and to maintain track on those routes to passenger-train specifications. Amtrak pays the cost. But in 1987 Amtrak asserted it was forced to discontinue a New York-Montreal run because of poor maintenance over [a] Boston & Maine track that had slowed passenger-train speeds to 10 miles per hour.
Wilner next related how Amtrak ultimately seized the track by using "an extraordinary power granted it by Congress to condemn private property." After summarizing the rather confusing litigation which ensued, Wilner's article concluded:
Guilford has a knack for grabbing headlines. With its latest offer to buy or lease Amtrak's Northeast line, it is bound to keep the story alive.
B. The plaintiffs' allegations of defamation.
The plaintiffs claim that Wilner's column contains numerous defamatory statements, both express and implied. The principal focus of their case is on the allegation that the column falsely portrays them as hostile and antagonistic to labor. The plaintiffs do not allege that Wilner has stated this directly, but they argue instead that the idea is implied by the column's tone and choice of words:
By juxtaposing `quickly,' `bitter conflict' `ignited' and `traditional national negotiations,' the Article falsely indicates that Guilford caused [`ignited'] a `bitter conflict' and `strike' by untowardly and precipitously [`bolting'] from standard [`traditional'] negotiations to further its `crucial' need to extract `cooperation' from its `12 disparate labor unions.'
Elaborating on the theme that Wilner has described them as anti-labor, the plaintiffs claim that they have been implicitly accused of violating the Railway Labor Act (RLA), 45 U.S.C. §§ 151 et seq., by inciting labor unrest, by causing strikes and work stoppages, and by failing to maintain their tracks properly. They point out that management is under a continuous obligation to make every reasonable effort to avoid any action that might interrupt rail service or impede the free flow of commerce, see 45 U.S.C. § 152 (First), and they assert that the column effectively accuses them of having failed to carry out this obligation. In support of these allegations, the plaintiffs filed, inter alia, a sworn declaration by Herbert R. Northrup, Professor Emeritus of Management at the Wharton School of the University of Pennsylvania, whom the plaintiffs have presented as an expert on labor relations and the RLA. In his declaration, Northrup stated, inter alia, that
•any reader familiar with the railroad industry or the RLA would conclude from reading Wilner's Journal of Commerce, June 2, 1997, article that the plaintiffs are anti-union and anti-labor and have violated their duties and obligations under the RLA, by failing to exert every effort to make and maintain labor agreements and to avoid interruptions in service as a result of a labor dispute.
•in fact there is no evidence that plaintiffs have failed in their obligations under the RLA, or have exhibited anti-labor biases or ignited labor strikes and work stoppages.
• the article would reasonably tend to injure plaintiffs' reputation within the railroad industry and cause customers to shift their business from Guilford trains to trucks which compete with Guilford for much of its business.
Professor Northrup also synopsized what the plaintiffs view as provably false statements of fact in Wilner's column. According to Professor Northrup,
•any expert who has studied the RLA or who was familiar with the history of the railroad industry or who followed Guilford's history would know the following statements, among others, in the Article are false:
• the strike which occurred in 1986 on the Maine Central did not "quickly" occur after Guilford acquired the Maine Central. Negotiations had been ongoing for years before the strike occurred in 1986. Also, the 1986 strike did not arise from Guilford's attempts to obtain concessions from labor;
•Guilford did not "bolt" from national handling. A railroad must affirmatively opt into national handling and Guilford did not opt into national handling with respect to the labor negotiations on the Maine Central from 1982 through 1986;
•The Springfield Terminal leases had a transportation purpose and the ICC so found. Also, protective conditions ensured that employees of the leased railroads who went to work for Springfield Terminal would not suffer a reduction in compensation or a loss of seniority;
• the union representative elections at the Springfield Terminal in late 1991 and early 1992 did not result in "scrapping" existing labor agreements; the existing labor agreement with the UTU remained in effect for its full six year term;
•negotiations with the newly elected unions at Springfield Terminal after 1991 did not result in work stoppages; agreements were successfully completed without incident;
•the bankruptcy of the Delaware and Hudson did not occur after the union representation elections at Springfield Terminal.
• The Article misstates "Who is Guilford," which is expressly the question the Article promises to answer.
The plaintiffs further allege that Wilner has defamed Mellon and Fink by describing them as eccentric and strange. The plaintiffs insist that Mr. Mellon is not "reclusive," that neither he nor Mr. Fink has "coveted" any railroads, and that Wilner's assertions to the contrary are verifiably false. The plaintiffs also argue that they are depicted in the column as ineffective businessmen, and that the reference to Mr. Mellon as a "recluse" who "tired of his rail tie manufacturing business," and who engaged in "chaotic legal fisticuffs," conveys to the reader the defamatory implication that Mellon is not a man of good character, that he is unstable, and that he has an irresponsible attitude towards proper business practices and rail safety.
In opposition to Wilner's motion for summary judgment, the plaintiffs also submitted evidence designed to show knowledge on Wilner's part that his column contained false factual allegations. F. Colin Pease, Guilford's executive vice-president, related in an affidavit that on the day following the publication of the column, he and Fink telephoned Wilner to complain that Wilner had done a "hatchet job" on the plaintiffs. According to Pease, Wilner "justified the false statements by telling us that he had been given 12 hours to submit the article." Pease stated that Wilner refused to identify the person or persons who gave Wilner the deadline. Pease claimed that during a second telephone conversation, "[t]he defendant later offered to make it up to Guilford by writing a column for another publication, Railway Age, which would be favorable to Guilford." Eight months later, in a sworn deposition, Pease went even further, asserting that "I called Frank Wilner back and when he answered the phone, Frank agreed that the items in the article were false." (Emphasis added.)
Finally, according to the plaintiffs, Wilner's column did more than bruise corporate egos. Customers who ship their goods by rail are understandably sensitive about potential labor disputes that could result in an interruption of rail service. The plaintiffs claim that after the article was published, a number of Guilford clients called to voice concern over the company's labor practices. One such customer, Joseph Kittredge, stated in a sworn declaration that "[a]ny firm which has an anti-labor or anti-union reputation presents a real and unacceptable risk of interruption in service," and that after reading Wilner's column, he contacted Fink and warned him that, in light of Wilner's allegations, shippers were likely to reallocate their business away from Guilford to other forms of transportation. Elaborating on Mr. Kittredge's account, Fink stated in a sworn declaration that in 1997, following the publication of Wilner's column, Guilford suffered a substantial decline in its business. According to Fink, the column was "the only material adverse event during this time and . . . the only reasonable explanation for this drastic drop-off of performance." On the basis of this type of evidence, the plaintiffs assert that Wilner's column has ascribed to them conduct and ...