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FROM BARBARA WARTELLE WALL: LEGAL WATCH
OP-ED COLUMNIST DID NOT DEFAME COMPANY HE CRITICIZED

A columnist who criticized the labor practices of a railroad freight company did not defame it, the District of Columbia Court of Appeals has ruled. (Guilford Transportation Industries, Inc. v. Wilner, Oct. 12, 2000) The court's discussion of the principles shielding "opinion" provides a timely reminder of what is -- and sometimes is not -- protected in the "op-ed" context.

In May 1997, freight railroad operator Guilford Transportation Industries announced its intent to acquire certain of Amtrak's rail operations in the northeast. The following month, in the midst of public debate over Guilford's privatization plan, the transportation trade publication Journal of Commerce published an op-ed column by Frank Wilner discussing Guilford's plans.

In the column, Wilner mentioned Guilford's owners, Timothy Mellon and David Fink, describing Mellon as a "recluse" who had created Guilford after he "tired" of running another business. Wilner characterized both men as "anti-establishment" individuals who had engaged in "chaotic legal fisticuffs" with Amtrak.

Wilner also described Guilford's conflicts over the years with organized labor, suggesting that the company could succeed only if labor unions cooperated by making concessions in wage and benefits negotiations. However, he wrote, Guilford had "bolted from" traditional national negotiations with the unions, precipitating "an almost three-month strike that required congressional intervention."

Guilford and its owners sued Wilner for defamation, claiming that the column falsely portrayed the company as hostile to organized labor and implied that it had violated the Railway Labor Act (RLA) by causing labor unrest and strikes. In addition, Mellon and Fink claimed they were defamed by Wilner's characterization of them as ineffective businessmen.

The trial court granted Wilner's motion for summary judgment, holding that the substance of the column was constitutionally protected opinion. When Guilford appealed, the District of Columbia Court of Appeals affirmed.

The appellate court first considered Guilford's contention that the column characterized it as unlawfully hostile to labor interests. The court held that this was simply not libelous, especially when considered in the context of an ongoing labor dispute and when published in an op-ed column.

Moreover, it continued, Wilner noted in the column that a federal agency had exonerated Guilford for its actions. Because Wilner had disclosed the agency's ruling in favor of Guilford, the court found that "any reasonable reader of the column would understand that Guilford took certain actions, that Wilner was unenthusiastic about those actions, and that the federal agency "basically sustained them." Accordingly, it held that Wilner's disagreement with the outcome was "not the stuff of which successful libel suits are made."

The court reached a similar conclusion with respect to Guilford's claim that it was defamed by the implication that it had violated the labor act. The appellate court acknowledged that "a narrower and more specific charge, focused on allegedly unlawful conduct," is more likely to be libelous.

Nevertheless, the court concluded that the column did not imply that Guilford violated the labor act: Wilner had reported the federal agency's exoneration of the company, the court noted, adding, "the column may perhaps be read as indicating that Wilner is sympathetic to the union's point of view rather than to Guilford's, but that surely does not render the column defamatory."

Finally, the court rejected Mellon and Fink's claim that they personally had been defamed: "The implication in Wilner's column that Mellon is a kind of dilettante, and that he, and perhaps Fink too, lack seriousness as businessmen, is the quintessential kind of commentary -- provocative, perhaps, but hardly libelous -- which is entitled to protection under the First Amendment."

That Wilner's column appeared on an op-ed page was significant to the court. That facts recounted by Wilner in his column upon which he based his negative conclusions were accurate also weighed in the analysis. Finally, Wilner's disclosure of key known facts that could be said to contradict his own conclusion -- that is, that a federal agency had cleared Guilford of wrongdoing in its labor dealings -- convinced the appellate court that any reasonable reader would have understood the column to be a statement of Wilner's personal opinion, not a news report stating facts.