The Language of Defamation Cases

THE LANGUAGE OF DEFAMATION CASES

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THE LANGUAGE OF D E FA M AT I O N CASES Roger W. Shuy

1 2010

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Oxford University Press, Inc., publishes works that further Oxford University’s objective of excellence in research, scholarship, and education. Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam

Copyright © 2010 by Oxford University Press, Inc. Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016 www.oup.com Oxford is a registered trademark of Oxford University Press. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press. Library of Congress Cataloging-in-Publication Data Shuy, Roger W. The language of defamation cases / Roger W. Shuy. p. cm. Includes bibliographical references and index. ISBN 978-0-19-539132-9 1. Libel and slander—United States. I. Title. KF1266.S54 2009 346.7303'4—dc22 2009007792

1 3 5 7 9 8 6 4 2 Printed in the United States of America on acid-free paper

Contents

Introduction

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PART I: DEFAMATION LAW: WHERE LINGUISTICS CAN HELP 1 FIGHTING OVER DEFAMATORY LANGUAGE 2 HOW LINGUISTICS FITS INTO THE PICTURE

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PART II: DEFAMATION BATTLES IN THE MEDIA 3 A SIXTH-GRADE TEACHER GOES AFTER THE LOCAL PRESS

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4 WIDOW OF A MURDERED MAN SUES A LOCAL TV STATION

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5 A RELIGIOUS LEADER, THE TV MEDIA, AND THE FCC 6 LAS VEGAS HEADLINER WAYNE NEWTON SUES NBC 7 VERBAL DUELS BETWEEN LINGUISTICS EXPERTS IN A CASE BROUGHT BY AN OHIO SUPREME COURT JUSTICE AGAINST A NEWSPAPER

69 85

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PART III: DEFAMATION DISPUTES IN THE FIELD OF MEDICINE 8 OPTOMETRISTS VS. OPHTHALMOLOGISTS

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9 OTOLARYNGOLOGISTS VS. PLASTIC SURGEONS

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PART IV: DEFAMATION DISPUTES IN THE FIELD OF BUSINESS 10 INFIGHTING IN THE HAIR CARE PRODUCTS INDUSTRY

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11 A POLICYHOLDER SUES HER INSURANCE COMPANY

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12 AN EMPLOYEE SUES HER EMPLOYER

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13 A CORPORATION FILES A LAWSUIT AGAINST ITS UNION

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14 SO ARE WE MAKING ANY PROGRESS?

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References Index

243 249

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Introduction

Slander and libel cases are largely about the way one entity or individual uses language in ways that are claimed to defame another. Since linguists are specialists in language, their expertise can be central to the analysis of the spoken or written material that caused the controversy in the first place. This book illustrates eleven representative lawsuits involving newspapers, television stations, religious leaders, physicians, teachers, entertainers, unions, insurance companies, and manufacturers. Linguistic analysis of grammatical referencing, speech acts, discourse structure, framing, conveyed meaning, intentionality, and malicious language play an important role in the outcomes of these cases. At the beginning it should be made clear that this book is neither a treatise on defamation law nor an introduction to linguistics. Instead, it shows some the ways that linguistics can be used to help lawyers resolve conflicts that occur in one area of the legal context—libel and slander. In that sense, it is applied linguistics. In another sense, it can

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Introduction

be called forensic linguistics, a term that is being used more and more to describe this type of work. I was a paid consultant in all the cases described here, sometimes for the plaintiff and sometimes for the defendant. As is fairly common in this type of lawsuit, only one of these eleven cases actually went to trial (chapter 9). As far as I know, the rest were settled through pre-trial negotiation. The analyses presented here are the ones given at the time of the case and are not modified with any later insights. Not all of my points are ones that I might care to make if these cases took place today, but that’s the nature of the business. Forensic linguists work under the time pressures of the courts, which are sometimes unreasonably tight and full of surprises. Since we learn as we go along and, if things go well, we improve over time, I include most of the relevant data in each case description and I encourage readers to do their own analyses and reach their own conclusions. Readers will note that with one exception (chapter 9) I do not indicate the judicial outcomes of these cases. This is for two reasons. First, out-of-court settlements are often confidential, making it difficult, if not impossible, to learn how the case actually ended. Second, the matter of winning or losing is not the purpose of this book and, more important, it is not the purpose of linguistic analysis in the legal context. The proper role of the forensic linguist is to analyze the language data, to work with lawyers as colleagues, but to steer very far away from becoming advocates (Shuy 2006, 119–120). Winning or losing the case is the responsibility of lawyers, not their expert witnesses. In fact, sometimes it becomes necessary to tell the lawyers that even the best linguistic analysis doesn’t favor their position. I include one such case in this book (chapter 12) as an example. Those who want to learn more about these eleven cases can find the case references at the end of the book.

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Introduction

Currently there is not a large literature about the ways linguists have worked on defamation cases, but the following references may be helpful: Durant, Alan. 1996. “Allusions and other ‘innuendo’ meanings in libel actions: the value of semantic and pragmatic evidence.” Forensic Linguistics, vol. 3, no. 2 (195–210). Gibbons, John. 2003. Forensic Linguistics: An Introduction to Language in the Justice System. Oxford: Blackwell. Hancher, Michael. 1980. “Speech Acts and the Law,” in Roger W. Shuy and Anna Schnukal (eds.) Language Use and the Uses of Language. Washington, D.C.: Georgetown University Press (245–256). Kniffka, Hannes. 2007. “Libel, Linguists, and Litigation in Germany,” Working in Language and Law. Houndmills Basingstoke: Palgrave Macmillan (113–148). Pullum, Geoffrey K. 1991. “The Linguistics of Defamation,” chapter 12 in his The Great Eskimo Vocabulary Hoax and Other Irreverent Essays on the Study of Language (92–99). Chicago: University of Chicago Press. Tiersma, Peter M. 1987. “The Language of Defamation.” Texas Law Review, 66/2 (303–350). As in most areas of law, there are several important books that lawyers use as guides to their practice in defamation cases, including: Haiman, F. 1970. Speech and Law in a Free Society. Chicago: University of Chicago Press (see chapter 3, “Defamation”). Phelps, Robert H. and Douglas Hamilton. 1969. Libel: A Guide to Rights, Risks, Responsibilities. New York: Practicing Law Institute. Prosser, William L. and Robert E. Keeton. 1988. On the Law of Torts. St.Paul: West Publishing. Sack, Robert D. 1999. Sack on Defamation: Libel, Slander and Related Problems (third edition). New York: Practicing Law Institute.

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PART I

Defamation Law: Where Linguistics Can Help Chapter 1 offers a very brief description of defamation law and its possible antecedents. Chapter 2 points out some of the analytical tools that linguistics use to help lawyers resolve issues in defamation cases. Parts II and III will describe actual defamation cases in which certain of these analytical tools were used.

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Fighting over Defamatory Language It seems obvious to have to even mention that people tend to fight over the way they use language. Nations and states fight over which language should be considered official (Haugen 1966). Corporations engage in civil cases over the meaning of contracts, product liability issues in warning labels, whether their copyrights have been infringed, who owns a trademark, commercial advertisements, and discriminatory employment practices (Shuy 2008). Individuals also go to battle when they feel they have been defamed, the topic of this book.

Brief Overview of Defamation Law Let it be clear from the start that this is not a treatise on defamation law. For such, readers should refer to law works such as the ones mentioned earlier. Today we have laws that attempt to regulate defamation, only briefly summarized here. People may feel that they have

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been personally slandered or libeled, but U.S. law now requires more than a claim of a defamatory effect. For example, Restatement (Second) of Torts §¸ 558 (1976) says that an utterance is defamatory “if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from dealing with him.” It is tempting to think of defamation cases in the same way that we think about contract disputes but such a comparison does not work well. Contracts form a relationship between two entities while defamation reorders the relationship between an individual and a community. In addition, the Restatement includes other requirements for defamation cases, such as the presence of a false statement against another, making an unprivileged publication to a third party, and negligence of the publisher. Although this book deals only with defamation cases in the United States, one very important difference between American and British defamation law should be pointed out. In England, defendants in libel cases have to prove that the libel allegations against them are false, unlike in the United States, where the burden rests on plaintiffs to prove that their allegations are true. In British courts, once the accusation is made, the accusers have a distinct advantage over the accused, who have to prove that they are innocent. As simple as this difference may sound, it has led to considerable international controversy. Some critics of British libel law say that the British courts are so sympathetic to allegations of libel that London has become the center of “libel tourism.” Foreigners go there to bring libel allegations over publications that may have only a tenuous link to Britain. The earlier history of defamation law is somewhat obscure. There is some evidence that civil action for damages goes back as far as the thirteenth century in England. One thing seems clear, however: defamation is intimately involved in the way language is used and how it is perceived.

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Black’s Law Dictionary defines defamation as: “An intentional false communication, either published or publicly spoken, that injures another’s reputation or good name.” Tiersma (1987, 304) adds that defamation is “a variety of language regulation that prohibits the uttering of certain types of speech, or more precisely, allows those types only in very specific circumstances.” This regulation involves a relationship between an individual to the community, since “a public accusation of wrongdoing is a linguistic act that lowers the status of an individual who has violated community norms.” Tiersma (1987) argues, convincingly I believe, that defamation should be defined not only in terms of the perlocutionary effect (Searle 1969, 54–71) that receivers believe it has on their character or reputations, but also in terms of the illocutionary force (Austin 1962, 99–108) of the language used by the sender of the message, which reflects a speaker’s intent. That is, a defamation claim cannot rest only on the receivers’ feelings about being defamed but also (or even more so) on the way the sender’s message was said or written. This, of course, puts linguistic analysis of the message at the center of such cases. This analysis will be found in many of the cases described in this book. One of first tasks is to determine whether the allegedly offensive language constitutes an assertion, a warning, an opinion, a question, or an accusation. It is common in law that certain kinds of accusatory statements are defamatory in themselves. In the United States, when persons accuse others of lying, cheating, or breaking a law without privilege to do so and in violation of the speech norms of the speech community that regulates accusations, the accused can consider this defamation of their character to their community, as long as those words were made public, either orally or in written form, and if the allegedly offensive statements can be proved false. In American and British law libel refers to written defamation, whether in newspapers, magazines, books, electronic messages, or

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Defamation Law: Where Linguistics Can Help

distributed memos or letters, while slander refers to spoken defamatory expression, as in speeches, sermons, or other public oral presentations. Laws of other jurisdictions differ slightly. For example, Kniffka (2007, 116–117) reports that German defamation law includes insults and malicious gossip as defamation, punishable by a fine and not more that one year in prison (German Penal Code, sections 185–187). In Scots law and some other jurisdictions, slander, libel, and defamation are commonly used as synonyms. Garner (1995, 527) reports that the semantic distinction between slander and libel began to emerge in the 1600s. Although not dealt with here, the defamatory use of non-language, such as photographs, drawings, and other objects, also can lead to accusations of libel. In some relatively rare cases, negligent defamation, as opposed to intentional defamation, can become an issue. In law, negligence means: (1) failure to exercise the standard of care that the doer, as a responsible person, should have exercised in the circumstances; (2) undue indifference toward the consequences of one’s act; or (3) breach of duty (Garner 1995, 586). An extreme case would be that of a living person who sues a novelist who randomly assigned his or her name to a fictional character who commits bad acts, despite the author’s lack of intention to libel that living person and even when the author had never even heard of that living person. But the plaintiffs would have only a slim likelihood of winning such a case, because the important criterion is whether the ordinary reader, viewer, or listener would reasonably understand that the words refer to the plaintiff (Morgan v. Odham’s Press Ltd. [1971] 1 WLR 1239). The majority of U.S. defamation cases today are brought against newspapers, magazines, and television and radio stations. About onefourth of them are brought in federal courts with the remainder assigned to state courts. Although the U.S. Constitution has guaranteed freedom of the press by putting such protection into the First Amendment of the Bill of Rights, for many years even the U.S.

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Supreme Court declined to protect the media from lawsuits. It wasn’t until 1964 that the Supreme Court revolutionized libel law in the United States. In New York Times Co. v. Sullivan (376 U.S. 254 1964), the Court decided that public officials could not prevail against the media unless the reporters used “actual malice” in publishing false statements against them. Actual malice was defined as “knowledge that the information was false” or that it was published with “reckless disregard of whether it was false or not.” If malice or ill will could be proved and if the accusation could be shown to be false (or not verified), the possibility of proving defamation was indeed strong. But how well can “actual malice” be defined? Garner (1995, 544) says the term is ambiguous because it’s been diluted in legal writing and that the non-legal meaning, a wicked or evil state of mind, makes things even more confusing: “at law it simply means that the actor did something unlawful.” According to law, it makes no difference when the alleged offender acts with good reason or from humanitarian motives. Garner observes that acting with malice means only that the act is against the law and “the malice requirement does not involve spite or ill will, only knowing falsity or a reckless disregard for the truth.” The U.S. Supreme Court’s decision in the New York Times Co. v. Sullivan decision noted above (hereafter Sullivan) said that the plaintiff needed to prove that the publisher had to know that the information was false and that it was published with reckless abandon. Now we’re also tasked with having to define “reckless abandon” and “know.” About this, Garner (1995, 740) says: “recklessness occurs when the actor does not desire the consequence but foresees the possibility and consciously takes the risk.” Some jurisdictions claim that defendants are liable if “they knew or should have known in the exercise of reasonable care,” opening the issue of what is reasonable and how they should have known. Does “know” mean cognitive understanding, as in “I know that two plus two equals four”? Or does it mean something

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Defamation Law: Where Linguistics Can Help

like, “Since I washed my car, I know that it will rain tomorrow”? And does a false statement need to be false in its expression of every detail? And are defamatory inferences as relevant as explicit statements? Other terms used in defamation law include “clear and convincing proof ” and “clear and convincing evidence,” suggesting a need for contextual analysis of what “clear and convincing” really means. These are issues that are ready-made for linguistic analysis. A Minnesota District finding in 1925 reads: “Malice can be proved by extrinsic evidence of personal ill feeling or by intrinsic evidence such as exaggerated language of the libel, the character of the language used, the mode and extent of the publication, and other matters in excess of the privilege” (Friedell v. Blakely Printing Co., 163 Minn. 226, N.W. 974, 976). The plaintiff has the burden of proving the actual malice. So how are the expressions, “exaggerated language” and “the character of the language used” to be defined in the context of a defamation case? Finding and analyzing “malice” also appears to be a fruitful issue for specialists in linguistics. Prosser and Keeton report that defamation law contains “anomalies and absurdities” (1984, 771–772). As can be seen from some of its murky definitions, defamation law has been neither easy to understand nor to apply. Conflicts between the right to free speech and the right to have protection against unwarranted damage to reputation caused by false accusation are not always simple to resolve. If plaintiffs can show that the defendants’ accusations are not factual, this favors their case in defamation suits. But if the allegedly offensive statement is clearly represented as an opinion, the offense is usually not actionable, since an opinion is a report of one’s belief or state of mind, not an accusation. Hyperbolic statements are normally protected. Finally, evidence of damage to reputation in the community that is brought about by the alleged defamation is a necessary element in any legal action of defamation, but this too is often difficult to prove. Linguists study the speech acts of giving opinions, accusing, and reporting.

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There are required conditions of these and other speech acts (Searle 1969) that can help determine the identity and felicity of such texts. A major percentage of U.S. defamation lawsuits are filed in state courts, whose laws are neither always consistent with each other nor with federal defamation laws. There is a core of similarity, however. To oversimplify a bit, plaintiffs build their cases on false statements of facts, publication of such statements to a third party, some degree of fault, and some harm or damage done. But even vicious statements about another person are not always actionable. For example, “I think he’s a mean employer” cannot be proven to be false since it is couched as an opinion and the truth or falsity of opinions cannot be shown. Before 1900, some state courts held that statements of opinion were absolutely protected from defamation charges. But there have been some disagreements about this. In a U.S. Supreme Court decision in 1990 (Milkovich v. Lorain Journal Co., 497 U.S. 1, 18–21), the Court ruled that not all opinions are protected and that the distinction between fact and opinion, which had been used in the lower courts in that case, was artificial. The lower court had conventionally ruled that the First Amendment gave protection only to statements about matters of public concern that are not capable of being proved to be true or false and to statements that cannot be interpreted reasonably as stated facts. In Milkovich, the decision was overturned. The Supreme Court ruled that even in instances where defamatory statements are prefaced with phrases like “I believe” or “in my opinion,” they are not always protected: Simply couching such statements in terms of opinion does not dispel these implications [of false assertion of fact]; and the statement, “In my opinion Jones is a liar,” can cause as much damage to reputation as the statement, “Jones is a liar.” As Judge Friendly aptly stated, “[I]t would be destructive in the law of libel if a writer could escape liability for accusations of [defamatory conduct] simply by using, explicitly or

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Defamation Law: Where Linguistics Can Help

implicitly, the words, “I believe.” (497 U.S. 1, 19, 1990, quoting Cianci, 639 F.2d at 64). Therefore Milkovich added complexity to the issue of the fact vs. opinion discussion. To this Court, the simple intonation of the words, “I believe” or “in my opinion” apparently did not serve as an automatic mantra of protection against defamation. It would appear that this decision takes the courts deeper into issues of the writers’ or speakers’ intentions revealed by the language they use in context, and takes matters directly to the linguistic findings about the speech act of offering an opinion, where this subject receives considerable attention. Defamation is a cover term for disputes about written language (libel) or spoken language (slander). In the United States, virtually all defamation cases are torts, argued in civil proceedings, and a vast majority of these involve written language, probably because such allegations are more accessible for verification since they appear in print. Some states still have criminal defamation laws on their books but rarely do such cases ever occur. European countries, such as Germany and Sweden, have laws restricting speech judged to incite hatred of specific groups, and many defamation cases are brought as criminal offenses there (Kniffka 2007).

Some Possible Antecedents of Defamation Law Today, the standard remedy for the offending party in a defamation case is monetary compensation. But it wasn’t always that way. In more barbaric times, people who were insulted, defamed, or otherwise offended by others simply whacked them on the head or even killed them. In medieval Europe, this barbaric violence continued for years, even after such physical retribution morphed into a newer version of ritualized civil justice, called judicial trial by combat, had begun to find its place in

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society (Landale 2005, 17). As the number of these ritualized battles grew, it became commonplace for knights in armor to challenge other knights according to a gradually evolving code of honor. Solving disputes by personal combat in this way seemed to appeal to aristocrats in particular. Although trial by combat was officially abolished in fourteenth- and fifteenth-century Europe, private duels of honor continued in one form or another into the nineteenth century, with elaborate rules by which honorable parties were expected to abide. By the eighteenth century the existing rules of honor had become less concerned with swordplay than with the fine points of personal honor, such as the etiquette for wording an acceptable challenge, clarifying what to challenge about, deciding what type of acceptable apology could thwart a duel, and determining what the results of duels really meant. Words slowly began to replace physical violence, and particular attention was given to the language through which this code could be followed. The thirty-six rules listed in the Code Duello were adopted in Ireland in 1777 and spread rapidly throughout the European continent (Holland 2003, 43–54). But this practice was still limited to the upper classes. In early America, dueling was much more common than most people think. To accuse a public figure of incest, treason, or consorting with the devil usually led directly or indirectly to the dueling ground. Few Americans know that Alexander Hamilton was challenged to nine other duels besides his famous one with Aaron Burr. Few are aware that President Lincoln accepted a challenge to a duel from the state auditor, James Shields, a man whom Lincoln had reviled in print. This offense never actually reached the status of a duel, because a lastminute negotiation prevented any violence from taking place (Holland 2003, 173–174). History books are largely silent about the many duels fought between early U.S. congressmen, senators, and other political leaders. Newspaper editors and writers also were frequently challenged to duels about articles that they published because the anti-dueling

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Defamation Law: Where Linguistics Can Help

laws were much ignored: “duels were the only court available for retrieving your reputation with your peers” (Holland 2003, 3). In a more aristocratic society, the culture of honor was necessary for the most prominent things in life, especially politics. A man’s (yes, it applied to men in almost all cases) superiority of character was made clear by adherence to the rites and rituals that proclaimed their superiority and reputation as honorable gentlemen. Honor was the core of a man’s identity, especially his manhood. Of this male proclivity to fight, Barbara Holland (2003, 287) says with a touch of sarcasm: “Men spring from the womb needing to prove that they’re men. Women don’t need to prove that they’re women; they simply are, they were born that way, and for much of history it was nothing to brag about anyway.” Those born into genteel status strove to protect and keep it, relying on standards of conduct for handling any offensive claims by others about their sense of honor. Men who did not abide by these standards were considered neither leaders nor honorable gentlemen. Social rank, fame, character, and reputation were the key elements of honor in those days. The elites who argued over such matters knew very well that by attacking an opponent on any of these characteristics, all hell could break loose. Unless certain ritualized language customs were followed, the outcome would surely lead to a subsequent, more serious ritual—a duel. Sometimes negotiations over the wording of an apology or retraction didn’t make any difference. Modern interpretations of dueling often miss its underlying purpose. Freeman (2002, 167) describes this as follows:. But to early national politicians, duels were demonstrations of manner, not marksmanship; they were intricate games of dare and counterdare, ritualized displays of bravery, military prowess, and—above all—willingness to sacrifice one’s life for one’s honor. A man’s response to the threat of gunplay

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bore far more meaning than the exchange of fire itself. Politicians considered themselves engaged in an affair of honor from the first “notice” of an insult through the final acknowledgment of “satisfaction,” a process that sometimes consumed weeks or even months. Regardless of whether shots were fired, these ritualized negotiations constituted an integral part of a duel. It is noteworthy that the use of language, especially insults, accusations, fighting words, demands, intentions, threats, negotiations, and apologies, played an important role even during the period when dueling was popular. Insults, accusations, and other fighting words Freeman (2002, xvi) describes how the defamatory language of insulting led to duels: “Certain slurs were off limits, tame as they are by modern standards. Rascal, scoundrel, liar, coward, and puppy: these were fighting words, and anyone who hurled them at an opponent was risking his life.” These verbal assaults struck deep into the heart of manliness and gentility. For one man to say that another man had made a false representation of fact constituted an accusation that the recipient was nothing more than an outright liar. Demands, intentions, and threats The language used was critical. Following the ritual of honor employed at that time, the accused liar would then send the offender a letter requesting an explanation. Holland (2003, 103) notes that this was “the old fashioned equivalent of that first phone call from a lawyer, saying you’d insulted his client and would soon be hearing from him further.” It was considered bad form to omit this step because, when heads were cool enough, this part of the ritual of

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Defamation Law: Where Linguistics Can Help

honor provided an opportunity for clarification or misperception of intent. Such a letter would begin by repeating the offender’s statement, which made clear what the offense really was. The letter continued with a demand that the offender avow or disavow the alleged defamation. This provided the offender a chance to explain his alleged offense as he saw fit. The letter then ended with a demand for an immediate reply, claiming that, as a gentleman, the sender was entitled to such respect. Often the letter also contained a sentence mentioning a “friend” who conveyed that letter. This was a kind of code word, an indirect threat of an impending duel if the recipient did not clarify his insult to the accused’s satisfaction, because that “friend” was surely to be a second in the duel that would eventually follow (Freeman 2002, 175–177).

Negotiation and apology Precautionary rituals in the code of honor tried to ensure that duels would not be fought unnecessarily. In fact, the common agreements negotiated by seconds could often prevent potential bloodshed, similar to the way in which lawyers can negotiate settlements of defamation cases today. In the old honor rituals, winning the duel by killing an opponent could even turn out to be a liability, leaving the victor with the charge of bloodthirstiness or, worse yet, mere personal ambition. Apologies obviously played an important role, but if the specific demands of the request for an apology were too humiliating, a duel could be the inevitable result.

Changing the rituals and focus Although dueling was outlawed in the United States in 1838 (Holland 2003, 149), nobody paid much attention to this, and the law didn’t stop angry gentlemen from finding a secluded place to duel: “There

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were assorted laws against dueling, rarely invoked, as even the lawmakers admitted, dueling being one of the ‘necessities of life’ and basically inevitable” (Holland 2003, 266). In case the laws might happen to be enforced, care was taken to protect people from being called as witnesses to the actual carnage. An attending physician, for example, could say that he was in the vicinity, heard shots, and then ran to the place where the wounded or dying person lay. In this way the physician could honestly report that he had not seen, and therefore not abetted, what had taken place. Even the duelist’s seconds could be instructed to look the other way so they didn’t actually see the shots fired. Such caution made it possible that in the rare instances when the anti-dueling laws were enforced, these witnesses could be protected from prosecution. Landale (2005, 258) observes that American duelists followed the European dueling codes, but a bit more imaginatively: “They didn’t have to be gentlemen—the duel was open to all comers. They used more weapons, preferring frequently rifles at sixty paces, shotguns at forty, and bowie knives at close quarters.” Landale also notes that dueling Americans were often more focused on revenge than Europeans, who were primarily concerned about satisfying wrongs. In the early American West, adherence to the previously established rituals of dueling began to slip. Few if any of these genteel codes of honor were followed, and the rituals of the courts were often far from their minds. Pistol fighting could take place over nothing more than a man throwing a glass of whiskey into the face of another. Bowie knives and double-barreled shotguns often replaced dueling pistols. In many ways, this appeared to be a turn backward to the days before codes of honor prevailed. This kind of dueling, if it can be called that, lasted much longer in the American West and South than it did other parts of the country. By the end of the Civil War, Americans seemed to conclude that enough blood had been shed. The United States was moving into a

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new period of increasing commerce and the former dominance of the aristocracy was pretty well over, leaving the country with a strong egalitarian spirit. A man’s honor and reputation were now based more on the money he possessed than on his courage or character. As politics moved from the centrality that it held in the early years of the country, it became of less concern to average Americans, whose manhood was more likely to be measured by their bank accounts.

Transition to the Courtroom: Some Similarities with the Past It would seem that there are enough similarities between the ancient practice of dueling and current defamation cases to enable us to consider the practice of dueling as an antecedent of some of the traditions of current defamation law practice. For one thing, perceived defamatory language was the impetus both of the older physical duels with swords or pistols and the modern defamation case duels fought by today’s lawyers in courts of law. A written notification of the offense also carried over, along with the representation by another party and some kind of compensation for the wrongdoing. Similarity of the centrality of language There are parallels in the way language permeates both the older event of dueling and the modern experience of litigation. The process of negotiation, the speech acts of accusing, explaining, apologizing, warning, advising, denying, and clarifying, all with carefully constructed and somewhat ritualized language, existed in the past and continue to be central ingredients in today’s courtrooms. Both eras paid meticulous attention to the use and meaning of words and expressions. Holland (2003, 151–152) describes the care that was

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taken to use effective language by the accuser, the accused, and their seconds in the old days, not unlike the careful production of language that takes place in today’s courtrooms by the lawyers (seconds) and their expert witnesses. Today, although the language duel leading to financial settlement has replaced the language duel leading to physical violence, similarities of the ingredients of both types of disputes remain and make a comparison salient. But even though our current defamation laws may have had some antecedents in the old practices of dueling, there are also important differences, especially in the way the conflicts ended up. The results of dueling with weapons differ obviously from the results of decisions in today’s courtrooms. The end result of a duel was that the accused (and sometimes the accusers as well) were often killed or maimed, whereas in present day defamation cases, the end result when the accused loses is a forfeiture of money, sometimes also requiring a public retraction of the verbal offense. Similarity of the notification and demand Once the nature of the alleged offensive language is determined, duels and lawsuits start in pretty much the same ways—with a personal letter of complaint from the offended party to the offender. In both the old days and today, the alleged verbal offense was specified, and the complaint included words to the effect that the recipient can choose to either admit and do something about this culpability and apologize, or otherwise expect that a very serious next step will be taken (Holland 2003, 103). Such a letter is similar to the initial action taken by today’s defamation lawyers, who first describe the alleged defamation through a letter and later by means of a legal complaint, both of which give a pretty clear warning that trouble lies ahead.

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Similarity of representation by another In the age of dueling, the person who delivered the message to the offender became the “second” if and when a duel eventually took place, a parallel to today’s lawyers who officially represent parties in a defamation case. Modern-day lawyers, like the duelists’ seconds, take responsibility for negotiations with the disputants throughout the period leading up to the action and during the action itself, no longer with weapons in an isolated field but now in the courtroom (Holland 2003, 151–152). In many cases, then as today, those appointed to stand on behalf of the participants accepted the responsibility of negotiating settlements before the duel or trial and, if they were successful, the problem could be resolved peacefully. This ritual of negotiation and representation (standing-on-behalf ) by designated representatives continues to the present day. Similarity of compensation for the alleged harm As the need to resolve disputes about verbal offenses developed, laws for determining the specific language that harmed a person’s reputation and honor evolved, creating new rituals to follow. Once the alleged defamatory language is published, the offended party can now bring a lawsuit against the alleged offender and, if the case succeeds, can be awarded monetary compensation for the injury. The stages of human society were clearly evolving from the early brutal acts of giving the cudgel to the offender, to the next phase of challenging him to a duel that could kill or maim, and finally to the current phase of a type of substitutionary atonement of legal awards of money growing out of the injurious speech or writing. By now the concept of honor was no longer foremost in the litigant’s mind. The problem remaining was to codify the principles upon which legal compensation for acts of defamation could be based.

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Fighting over Defamatory Language

This is not to say that at some point in time, humans sat down and rationally decided to stop fighting duels in order to solve their disputes in courts of law. Many changing social factors were likely to have been responsible for this rather slow evolution. Although many of the details in the practice of dueling have been lost, it preserved some of this legacy in the initial verbal offense, the written notification and demand for satisfaction, the participants’ representation by another person, and the need for compensation. But it is noteworthy how careful use of the language was important throughout the process.

Some Differences between Dueling and Today’s Courtroom Clearly today’s laws of defamation didn’t preserve all of the practices and procedures of the older period. There were also many differences between the ancient practice of dueling and the modern courtroom resolution, including motivations for the disagreements, the need to prove or verify the offense, and the way the issues are ultimately resolved. Still another difference is that dueling was primarily limited to upper class males. Landale (2005, 76) reports: “ ‘Petticoat duels’ were rare, and were normally limited to women of low repute, such as courtesans and dancers.” No such gender difference exists in defamation law suits today. Different motivation: Insults vs. accusations An important difference between dueling and defamation law is that disputants in the olden days had different motivations from the ones that impel modern lawsuits about slander and libel. In our earlier history the social code of defending one’s personal honor from insults

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was of paramount importance. Duels grew out of real or perceived insults, whereas modern defamation cases involve the desire to extract compensation for allegedly false accusations that reorder the accused person’s relationship with the community, not merely for the insult itself. As noted earlier, the act of calling another man a coward, liar, rascal, scoundrel, or puppy constituted “fighting words” (Freeman 2003, xvi). Laws about fighting words were on the books in several U.S. states in the nineteenth century, including New Hampshire and Virginia. The Virginia statute was similar to that state’s Anti-Dueling Act, passed in 1810, prohibiting “all words which from their usual construction and common acceptation are considered as insults and lead to violence and breach of the peace” (Rosen 2002, 2). In a 1942 case concerning a violation of the New Hampshire law, the U.S. Supreme Court ruled in Chaplinsky v. New Hampshire (313 U.S. 568 [1942]) that the First Amendment does not protect insulting and fighting words as outlined in that state’s law. Today, as Tiersma (1987, 306) writes, “law is moving toward requiring a plaintiff who alleges defamation to prove that the publication has the force of an accusation.” One major difference between the age of duels and modern defamation lawsuits is the motivation for the initial cause, insults as opposed to accusations. Difference in the need for proof and verification of the offense Verifiable truth of the insult was not that important in the olden days. It was sufficient that an insult was perceived, whereas in modern litigation, among other things, the truth or falsity of the verbal accusation must be proved. Modern defamation law also puts much more emphasis on proving the effect of the words in lowering the esteem of the recipient in the minds of the community, whereas in the days of duels, alleged insults did not even need to be widely distributed— although they sometimes were, usually in newspapers.

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Difference in resolution Duels were resolved with bloodshed. Defamation cases are resolved with monetary compensation. Legal decisions made by the courts justify the complaints of plaintiffs or defendants who win their cases. This was not nearly as clear in the days of dueling, when resolutions of the matter could result disastrously, even for the winners. When people feel defamed these days, they aren’t likely to challenge the offender to a duel, but this doesn’t seem to limit their willingness to get into a good fight. Holland (2003, 209) reports an instance in which a duel was proposed as recently as October 2002, when the vice president of Iraq suggested that the United States and Iraq could settle all the problems that were then leading up to war by letting the presidents and vice presidents of the United States and Iraq duke it out with pistols. Not surprisingly, this duel never took place. Today, instead of finding some hidden forest glen or deserted beach to have a go at each other with swords or pistols, people now use courts of law as the “dueling ground” for avenging those offensive barbs, slander, and libelous words. Mertz (2007, 5) describes law as a culturally driven model in which “justice will emerge from a process that is heavily dependent on linguistic exchange or dueling, which moves back and forth between at least two positions.” Lawyers (and their experts) duel verbally over what alleged offensive words mean, how they were intended, and the effect they may have on reputation or livelihood. And, of course, the lawyers also engage in verbal duels during the process. Language is at the center of this, making linguistic analysis of allegedly offensive language central because the evidence of the reported offense is normally in some form of written or spoken expression. Trials being what they are, language is also the vehicle for the ensuing verbal duels between opposing parties and their lawyer-representatives. Even the opposing experts engage in language duels over the meanings and implications of the language

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evidence. Defamation cases are, in one sense, verbal duels about language and how it is used. Keeping these similarities and differences about ancient dueling and modern defamation law in mind, we might ask whether we have we made much progress over the centuries in the way we get satisfaction from those who defame us. Replacing physical duels in a deserted field with verbal arguments in the courtroom may be more humane, but it still may have some room for growth. One such area is that lawyers, however excellent they may be in using and understanding language, usually do not have the linguistic skills and training to effectively analyze this critically important part of the process. We wouldn’t expect carpenters to build our houses for us without giving them the most efficient and up-to-date tools to use. Since defamation is accomplished by means of language, some of the most useful tools to deal with slander and libel are the analytical procedures found in the field of linguistics. Unfortunately, most lawyers haven’t been trained in linguistics and don’t have these analytical procedures in their tool kits. And most linguists don’t know that an opportunity exists to help lawyers deal effectively with important language issues in their defamation cases. This book seeks to make both lawyers and linguists more fully aware of the opportunity to combine the knowledge and skills of both fields in order to reach a fair and just conclusion. In an effort to help address these needs, I report eleven slander and libel cases in this book, illustrating some of the ways that linguists can help the courts deal with the language of defamation disputes.

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2

How Linguistics Fits into the Picture Today’s lawyers may be doing a reasonably good job with their defamation cases, but I believe there is some evidence that they could do even better with the help of linguistics. Defamation cases are built on language for which linguistic analysis has the potential to help lawyers resolve their disputes. Law school professor Peter Tiersma (1999, 1) notes the progress made in the past three decades by linguists and social scientists who have turned their attention to legal language: “The results of their work have led to a better understanding of how legal language operates.” Since there have been relatively few publications about the specific uses of linguistics in defamation cases, this book attempts to address this area of activity. Training and experience in any field produces what Goodwin (1994, 606–633) calls “professional vision,” or ways of seeing the field through specifically trained eyes. Goodwin uses the example of policemen who are trained to notice and react to any aggressive moves made 29

Defamation Law: Where Linguistics Can Help

by suspects. This recognition may not always be accurate, but it appears to be needed just the same. Lawyers are skilled at seeing their cases from their own professional vision of law. Linguists are skilled at seeing language in ways that practitioners in other fields are not trained to do, providing them with their own professional vision. Good professionals see and think in the way their fields teach them, but when different fields share important overlapping essentials, such as language, it can be very useful for the two fields to combine their efforts. This developing professional vision leads law students to begin to think and talk like lawyers (Mertz 2007, 3) in the same way that linguistics students to begin to think and talk like linguists. I can recall noticing the points at which my own graduate students actually began to think and talk like linguists, absorbing aspects of our field’s professional vision. When this happened, I knew that there was a pretty good chance that the intelligent and industrious among these students could complete their graduate educations. Various law professors have told me that something akin to this happens in their law schools as well. Important issues in law often hinge on the way that language is used, what it can mean and what it cannot mean. Since linguistics is also about the way that language is used, what it can mean and what it cannot mean, it is only natural for these two language-focused fields, law and linguistics, to benefit from a close relationship. Linguists can help lawyers by seeing language structure in ways that lawyers are not trained to see it. And lawyers can help linguists by providing them with what the U.S. Supreme Court candidate Robert Bork once called his potential office: “an intellectual feast,” which translates for linguists as a broad array of real-life linguistic problems for us to address as we work with the data of another field. Even the preceding very brief summary of the history of how people fight over words reveals many current topics relevant to linguistics, including the illocutionary force of accusing, the perlocutionary effect of the statement on readers or listeners, linguistic evidence of clues to

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the author’s intention, the significance of language indirectness versus directness, the identification and use of defamatory words and expressions, and the use and effectiveness of ways that the author of the offending statement might try to repair the damage with the speech act of apologizing. The cases described in this book focus on illustrations and suggestions about how linguistics can assist in these and other specific aspects of defamation cases. This also includes determining the accuracy of the language evidence in question, analyzing grammatical referencing, revealing how speech acts show structure and clues to intent, noting the conveyed meanings of statements, pointing out attributions of intentions, pointing out instances of malicious language, and determining clues to meaning found in the discourse structure and framing in which the alleged defamation occurs.

Accuracy of the Alleged Defamation Evidence Linguists can analyze the discourse context in which the alleged defamation takes place, and sometimes even offer help about the difficult-to-prove requirement that the offending language contains actual malice or a reckless disregard for the truth. At the time of this writing, such a case was taking place in Boston, where a Superior Court judge claimed that he was defamed by a series of articles in the Boston Herald. The newspaper’s articles called the judge “a wrist slapping judge . . . with a pro-defendant stance” who had “heartlessly demeaned victims” (Pam Belluck, New York Times, January 9, 2005, 19). This came from what the judge allegedly said during one difficult rape case. Another Boston Herald article quoted the judge as having said: “She’s fourteen. She got raped. Tell her to get over it.” But some witnesses to the conversation in which this statement was made claim that the judge actually said, “She’s got to get over it,” which is quite

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different from the newspaper quote. Where can the line be drawn between compassionate and callused or reckless language? Perhaps a linguist could have helped in this matter. If this event had occurred in the early days of American history, the above-cited judge, now a plaintiff, might have challenged the writer of the article to a duel. The accepted ancient protocol would have been for the judge first to quote the article and ask for an explanation. The writer would then explain the quote and either deny or affirm it. If the denial was satisfactory or an apology ensued, the duel could be avoided. If not, they might just end up going at each other with swords or pistols. The need to get the evidence in an accurate form is common to all law cases. It appears that there is some controversy over whether the quote in the Boston case was accurate and true. If the quote had been captured on a tape recording, a linguistic analysis might have helped determine its accuracy. The unraveling of the truth or falsity found by the discourse context in which the quote appeared might also be the key to at least one aspect of this case. In criminal sting cases with covert tapes as evidence, the first step is to prepare an accurate, jury-ready transcript. This holds true in defamation cases in which taped evidence exists and can be verified. Chapter 4 shows how a careful analysis of the tape-recorded language helped correct the inaccurate representations that were alleged to be defamatory. Chapter 10 describes the case of a corporate executive, a non-native English speaker who was accused of slander in one of his speeches. Analysis of his less-than-perfect use of English was relevant to understanding what he was apparently trying to communicate.

Grammatical Referencing If language were always clear and grammatically explicit, many defamation cases would be easier to resolve or would not even be brought

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at all. Can one person be defamed when the reference is to more than one person? In three of the slander cases in this book (chapters 3, 4, and 10), a good part of the linguistic task was to untangle singular from plural forms along with other grammatical references that were constructed in complex and less than elegant prose. Related to grammatical referencing is the broader topic of ambiguity. Spoken and written forms of language are not always perfectly clear, leading to disputes over their intended meanings. Chapters 4, 8, and 9 deal with issues of such ambiguity.

Speech Acts Many defamation cases begin with disputes over whether the statements made represented opinions or statements of fact. Beginning with Austin (1962) and Searle (1969), speech acts have been used to describe the functional dimension of language, how language accomplishes particular results or effects. Particularly relevant are indirect speech acts, which are often performed under cover of what appears to be a quite different speech act. As noted earlier, Tiesma’s article “The Language of Defamation” (1987, 303–350) proposes that the application of speech act theory can help resolve certain issues concerning defamation. Speech act theory holds that every utterance is made up of both an illocutionary act, relating to its intended force, and a perlocutionary act, relating to its effect on its reader or hearer. Tiersma notes that the law of defamation traditionally has placed its focus on the perlocutionary effect of authors’ utterances on the alleged victims rather than on the illocutionary force of the authors’ speech acts of accusing. Writers defame when they accuse without privilege to do so or when they accuse in violation of the norms of the speech community that regulates accusations. The major doctrines of defamation—the fair report privilege

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(words were honestly made on a matter of public interest), the distinction between fact and opinion, and the malice standard (the actor intentionally and recklessly said something)—all rest on the understanding that defamation is the illocutionary speech act of accusing. Tiersma argues that if defamation were defined as an accusation, it would permit the courts to distinguish between an accusation and a report that merely informs the reader of a state of affairs. It would also enable the courts to distinguish between an accusation and an opinion that merely reports the author’s state of mind. Chapters 3, 5, 8, 11, and 12 use speech act analysis to help determine the degree of culpability of defendants in defamation cases.

Conveyed Meaning Linguists have long held that meaning is of two types: referential meaning (for example, the formal logic of dictionary definitions); and conveyed meaning (meaning that is not explicitly stated but can be naturally implied or inferred). The illocutionary force of an utterance reflects a writer’s or speaker’s intent, while the perlocutionary effect is the effect that utterance has on the listener or reader (Searle 1969, 54–71). Sometimes the illocutionary force depends on the context and manner in which the words are said. Expressions that have otherwise only benign meanings, such as “made plans” or “left town,” presented in the context of a story about a murder suspect, can appear to convey much more sinister connotations than their dictionary definitions (see chapter 4). Clever use of the speaker’s or writer’s conveyed meanings can contribute to the attribution of defamatory effects. For example, presenting only parts of the alleged defamatory text on a television screen permits the reader to infer what may be found in the missing parts (see chapter 6). But even the actual words and expressions used in texts can convey meanings that are not

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explicitly defined. Chapters 5, 7, 8, 9, 12, and 13 offer examples of how conveyed meaning was important in helping resolve defamation cases.

Intentionality In general, the defamatory meaning of a statement resides in what that statement would mean to the community representing the average reader or listener. Durant (1996, 196) points out that libelous meaning is decided by the “ordinary reader” test, citing the authority of Robertson and Nichol (1992, 4–9), who describe the “ordinary reader” as one: . . . with considerable wisdom and knowledge of the way of the world. The literal meaning is not conclusive: the ordinary reader knows all about irony. . . . The ordinary reader is impressed by the tone and manner of publication, and the words chosen to headline the story. . . . The courts accept that ordinary readers are not literal-minded simpletons. They are capable of divining the real thrust of a comment, and able to respond to a joke, even a joke in bad taste, in the spirit intended by the commentator. Does this leave out the author’s intention? Not at all, says Durant: “. . . despite the clearly stated primacy of the notion of effect, the author’s intention does play an important role in determining the meaning of the words in question, because that meaning is decided by the ordinary reader’s response to the question, ‘What on earth was the author getting at?’ ” The issue of intentionality rears its head in many defamation cases. Did the offender mean to offend in the first place? No science, including linguistics, can determine for certain what a person’s real intentions are, but the language that people use can provide very useful clues to help address such questions.

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Discourse analysis provides one way to seek clues to people’s intentions. For example, the topics a person brings up are very good evidence of what was on a speaker’s mind. Recycling of topics substantiates that it was the speaker’s intention to introduce that topic and keep on introducing it until it is understood, appreciated, or resolved. Likewise, changing the topic brought up by another person can be a clue to the topic-changer’s intention not to talk about it. One of the linguist’s roles in defamation cases is to help determine whether an expression is capable of conveying a defamatory meaning. Unfortunately, intentions can also be misunderstood or misinterpreted. Chapters 4, 5, 7, 9, 12, and 13 describe cases in which attributions of intention played an important role.

Malicious Language Although one might think that language judged to be malicious might be obvious to everyone, it is not often clear exactly what is malicious and what is not. Garner (1995, 545) assigns to it the synonyms “intentional” and “reckless.” Unless otherwise instructed, he continues, “malicious” tends to mean “wicked” or “evil” to many jurors, a mistaken assumption in most defamation cases. As noted earlier, linguists are no better than anyone else at determining exact intentions, but often there are clues in the way language is used that can point to possible intentions. As for “reckless,” linguists have the tools of phonetics to help reveal such things as heightened emotion in spoken language and visual prominence of highly charged emotion in written texts (see chapter 10). The extent to which the use of such linguistic features can be called “reckless,” however, normally is a matter for the courts and juries to decide. The Supreme Court ruling in Sullivan requiring actual malice relates primarily to public figures, such as politicians, movie stars,

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industrial executives, famous athletes, or other people in the news. Private people are afforded more protection than public figures to the extent that they don’t have to prove that the defamer acted with actual malice. It is often unclear, however, exactly where the line between being a public figure and a private person actually falls. Language that conveys potential malice often takes the form of sarcasm, pejorative terms, exaggeration, and rhetorical questions, all of which give some evidence of the sender’s heightened emotion. By pejorative terms I refer to the negative end of a semantic continuum of possible choices that are available to writers or speakers when they describe a specific concept or event. Certain choices can convey negative connotations or denotations about the thing referred to. Sarcasm refers to sharply mocking or contemptuous statements intended to wound another. In spoken language this is usually accomplished by intonation, while in written text sarcasm sometimes involves the use of quotation marks and other punctuation to create a similarly heightened emotional effect. Exaggeration distorts by overstating to a seemingly abnormal extent. Its partner is overgeneralization. Rhetorical questions are persuasive devices that contain an implied answer and are often used to convince the reader or listener of something without inviting a response. Chapters 3, 6, 7, 8, 9, 10, 12, and 13 report cases in which malicious language was claimed to have occurred, most of which could be measured and reported at trial. Sarcasm, exaggeration, overgeneralizations and rhetorical questions do not always lead to defamation, although they can sometimes contribute to the effect of defamatory expressions. Calling a competing professional a “would-be physician” conveys scorn and disapproval, even an accusatory challenge to that physician’s qualifications, as does the claim that competing doctors see their patients only to enlarge their own pocketbooks (see chapter 8). It would seem that innuendo also might be important in determining defamation. Meaning certainly can be conveyed through

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innuendos, which, as Durant (1996, 195) explains, “derive from expressions which are not defamatory at face value, but which nevertheless carry discreditable implications to those with specialized, rather than general, knowledge.” Innuendo encourages a statement to be considered defamatory only if the reader or listener has knowledge of the relevant facts upon which the innuendo is based. Thus, as Bach and Harnish (1979, 101) observe, the key to innuendo is its intentionality and deniability. Fraser (2001, 215) finds innuendo to be a restricted type of insinuation, the only difference being that insinuation is directed to a target or to a specific audience, while innuendo addresses only the audience of a larger community. One feature of innuendo is that the stain remains, even if the accusation that it entails is later denied. In a sense, the falsity of an innuendo matters less than the falsity of other kinds of accusations. This is of no consequence in some case law, however, where public officials may not base a claim of actual malice on claimed innuendo (Strada v. Connecticut Newspapers, Inc., 477 A.2d at 1012). Some of the difficulties of using innuendo to try to show defamation can be seen in chapter 7. The language features described in this section entail the indication of an aroused neural system in the brain and an increase in drive that leads to a more stereotyped, disorganized sense of emotion or pain. In defamation disputes, they appear to signal that some type of malice is possibly present. In videotaped evidence, certain gestures suggesting heightened emotion may also occur (see chapter 10).

Discourse Structure and Framing As noted earlier, the topics introduced and recycled by speakers are one important indication of their intentions. People bring up subjects that are on their minds. We cannot enter the speakers’ minds, of course, but the topics they introduce and recycle are very good clues

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about this, somewhat analogous to the pots and shards found by archaeologists. In defamation defense cases, where some part of the overall text is alleged to be slanderous, it can be useful to demonstrate that the main interests, the topics introduced throughout the discourse, are about something very different from the accusation of defaming someone. This does not erase other alleged defamatory parts of the text, of course, but it tells us something useful about the speaker’s overall discourse goal and intent. When we keep track of each new topic and note each time it is recycled, we get pretty clear evidence about what was most on the mind of the writer or speaker. Then, when we put the related or similar topics together, we can get a sense of the overall themes of the text. This type of analysis was used in chapters 10, 11, 12, and 13. In a case where there is alleged defamation, topic and theme analysis enables us to discover the major foci of what was said so that if the writers or speakers spend most or all of their topics concerning non-defamatory matters, it becomes clear what the overall text was primarily about. This doesn’t mean that there was no defamation in that text, but rather that the text was apparently not constructed with defamation primarily in mind, one clue to the sender’s intention for writing or speaking in the first place. Topic and theme analysis also highlight the contexts in a text where indicators of defamation, such as possible malicious language, take place. This offers the opportunity to compare topics in which alleged malicious language is used with topics where it is not (see chapter 12 for examples). Another type of discourse structure can be found in the way the text was framed. Chapters 4 and 6 illustrate how introductions to television news programs can frame targets in a negative light even though the content of that frame was actually irrelevant to the reported event. In criminal sting cases, when undercover police drop some irrelevant but illegal-sounding topics into their conversations with their targets, this can frame the suspect in a negative light. I refer

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to this technique as “the contamination strategy” (Shuy 2005, 22–24). Discourse framing in defamation cases seems to have much the same effect as when undercover agents in undercover sting cases contaminate the conversation with off-color jokes or swearing. Especially in television and radio programs, the way the topic is visually and verbally framed can lead to interpretations or understandings by audiences that are not explicit in the actual words. For example, framing a photo of a person who is a television program’s subject next to a photo of a known criminal suggests strongly that they are associated or equal in the report that follows (see chapter 6). In a similar manner, beginning a television news broadcast with a report of a prior case in which a wife killed her husband suggests to viewers that in the news broadcast about to be reported, the wife in the current case is equally guilty (see chapter 4). The defendant’s best defense in a defamation case occurs when the defamatory accusation that was made can be shown to be false, which underlines the importance of getting the evidence in its most accurate form. In libel cases in which the evidence is frozen in print form, disputes over accuracy can be central. In slander cases, where the spoken words are not preserved for posterity in tape recordings, the task can be much more difficult. On the whole, however, determining the truth or falsity of defamatory statements is usually more a task for careful fact-checkers than for linguists. The burden of proving both the truth and accuracy of a defamatory statement falls to the defendant in such cases. The rest of this book describes eleven defamation cases in which linguistic analysis played a role. Different cases suggested different linguistic analyses, but many of these linguistic tools were used in somewhat different ways. In considering how to organize the book, I debated whether it might be better to place all the uses of speech act analysis, semantic analysis, and other linguistic tools together in separate chapters rather than to organize the book around specific cases.

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I abandoned that idea early, however, because it would involve too much repetition about the nature of the cases each time the use of the linguistic tool was discussed. At any rate, the cases offer their own interesting stories, so fragmenting these stories into chapters organized by linguistic unit seemed counterproductive, especially for lawyers who may read the book. The cases described here deal with allegedly defamatory written statements (libel) found in newspapers, letters, newsletters, internal memos, handbills, and direct mail, and with allegedly defamatory spoken statements (slander) found on radio, television, and in public lectures.

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PART II

Defamation Battles in the Media

Most defamation cases today are brought by individuals or groups who feel that they have been libeled or slandered by newspapers, magazines, radio, or television. Chapter 3 describes the case of a public school teacher who claimed to be libeled by a local newspaper. Chapter 4 deals with the case of the wife of a man who had been murdered and how a television station allegedly slandered her in programs in which she was said to be the “only” suspect. Chapter 5 analyzes a complaint made by Reverend Sun Myung Moon against the media before the Federal Communications Commission. Singer Wayne Newton’s slander case against NBC is the subject of chapter 6. Chapter 7 shows the efforts of an Ohio Supreme Court justice to bring libel charges against the Cleveland Plain Dealer. The verbal dueling described in chapter 7 differs from the other cases in that it compares analytical disagreements between the opposing linguistic expert witnesses about the published language evidence in that case.

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3

A Sixth-Grade Teacher Goes after the Local Press In 1997, a St. Paul newspaper, Pioneer Press, published an article describing events that took place at Hillside Elementary School in nearby Cottage Grove, Minnesota, where about a hundred sixth graders discovered that they would have to attend summer school if they expected to move on to seventh grade the next Fall. The article (Theresa Monsour, “100 Kids Who Learned ‘Nothing’ Face Summer School,” May 30, 1997, 1A) cited the classroom of one teacher, Katherine Navarre, and included the following statements: “But nothing—or close to it—is indeed what sixth-graders . . . may have accomplished in their communications class over the past school year.

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“. . . students complained that sixth-grade communications teacher Kathy Navarre wasn’t teaching them anything and that the classroom was chaotic.”

The writer interviewed an unspecified number of students in Navarre’s class and cited the following:

“We’re not the ones who screwed up” said a sixth grade girl. “I know if a different teacher had given us assignments, then we wouldn’t have to take summer school. It isn’t fair to us. We weren’t the ones who screwed up.”

“A sixth grade boy said . . . he wasn’t going to let summer school ruin his plans. . . . The sixth grade boy said he wrote a note complaining to the principal and that other students also wrote notes earlier in the year.”

“Students said Navarre did give out some assignments but failed to correct them and return them to students regularly.”

“When she gave out work she didn’t show us how to do it,” said the sixth grade girl. “She said, ‘Here, you gotta do

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this.’ I prefer to have a little help so I know what I’m doing.”

“Students said Navarre seemed to lose control of the classroom about a month into the school year. They said the communications class was like a free period, with students socializing and throwing erasers.”

The article also quoted officials of the South Washington School District who reported that the system was “concerned enough to take the extraordinary step of administering a special test to determine exactly what the sixth-graders did and didn’t learn this past year.” One administrator said, “. . . it’s tough to know whether she ran out of steam or became distraught, whether it was a classroom management issue.” While the school system officials investigated these claims, they put Navarre on leave and replaced her for the remainder of the school year. Meanwhile, the school system gave the students another test, the Iowa Test of Basic Skills, and found to its surprise that the students in Navarre’s class got scores that were virtually equivalent to the state’s average. On July 1, 1997, Navarre brought a Complaint against the South Washington County Schools, Pioneer Press, the principal of the school, and three other school officials. Although the article did not make a performative accusation, saying something like, “We accuse Navarre of teaching her students nothing,” the quotations of students and administrators convey that meaning. By publishing those accusations, the Pioneer Press adopted them. The Complaint charged that the article’s statement about Navarre teaching the

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children “nothing” was untrue and that this substantially damaged her reputation. It further charged that Pioneer Press published these statements knowing them to be false and with reckless disregard for the truth and that it failed to adequately investigate the claims, instead relying on unreliable sources, namely twelve-year-old schoolchildren. The Complaint charged the school system with giving false information to Pioneer Press, including statements that Navarre had failed to teach certain concepts. In one article a school official said, “your guess is as good as mine in how many things got left out.” Another official said that Navarre either “ran out of steam or became distraught,” which Navarre’s Complaint charged was untrue. A member of the school board, who said publicly that Navarre was “troubled,” was included in the Complaint. Even after the Iowa Test scores showed that Navarre’s students had learned an appropriate amount, the school system continued to make statements that implied that Navarre had failed to properly teach the students. Navarre charged that as a result of these statements by Pioneer Press and officials of the school system, her reputation in the community was seriously damaged and that she suffered public ridicule, emotional distress, loss of reputation, humiliation, embarrassment, and loss of past and future income.

Speech Acts: Reporting Fact vs. Giving Opinion A later Pioneer Press article (Keith Neis, “Teacher Files Suit against Newspaper, School District” August 27, 1997, A6) announced that Navarre was bringing a defamation lawsuit against Pioneer Press. Although the newspaper’s attorney claimed that the story “contained 48

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protected statements of opinion,” no defense concerning such opinions was expressed directly or indirectly in the court proceedings, probably because the articles contained no instances of “I think,” “I suppose,” “appear to be,” “were thought to be,” “seem to be,” or other direct or indirect expressions suggesting that the article contained the writer’s opinions. Early in the lawsuit, the Court determined that Navarre, a sixthgrade teacher, is a public person. Therefore, under the requirements since Sullivan, it was up to her, the plaintiff, to prove that the Pioneer Press statements about her were false. It is not often that evidence concerning the truth or falsity of the statements is so clearly available. For example, in a follow-up article, after the Iowa Test had been administered, a Pioneer Press piece (Debra O’Connor, “Students Learned Something After All,” June 16, 1997, 1A) included the following statements:

“Sixth-graders . . . who complained their teacher taught them little or nothing came out just fine on a standardized test measuring some of their English skills, school officials announced yesterday.”

“The 117 students who had teacher Kathy Navarre made reasonable progress on the Iowa Test of Basic Skills in the reading comprehension test. . . . County Superintendent Dan Hoke said . . . ‘Most of the students made good progress. This is what we see in classrooms throughout the district.’ . . . He added that . . . it’s the district’s duty to work with teachers to correct any deficiencies.”

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“Overall, though, Hoke said, the concern about kids ‘learning nothing’ as some claimed, appears unfounded as shown by test results.”

And in the South Washington County Bulletin, June 18, 1997 (Keith Neis, “Hillside Scores: No Surprises,” 1A), Superintendent Hoke is quoted as follows: “We didn’t find out whether they learned everything they should have. We did find out it wasn’t true that they didn’t learn nothing.” On June 10, 1997, Principal Tim Bess had sent a memo to all teachers at Hillside in which he said: “I believe the press greatly exaggerated this situation. I do not believe that the reporting was a fair depiction of the educational accomplishments of the Hillside staff, students, and parents.” Therefore, from the school system’s own statements and the results of the Iowa Test, it appears that the allegation that Navarre taught “nothing” was neither supportable nor true. But should Pioneer Press have known that their earlier statements were false? A cursory look at the manner of data gathering is instructive. For one thing, only one hypothesis was presented in the article— that students learned nothing in Navarre’s classroom. The justification for the newspaper’s single hypothesis is found in the data collected by the writer: the statements of two unidentified students and two parents, identifying them as “a sixth-grade girl,” a “sixth-grade boy,” and “the mother.” Elsewhere in the article, references are made to what “students” and “parents” allegedly reported, but it is by no means clear that the noun plurals used here represent any more informants than that reference to the two students and the mother. By not using the modifier “these” in the expressions, “students and parents are furious,” “students said the teachers told them,” “what makes students and parents especially angry,” “students said Navarre did give out assignments but did not correct them,” and “students said Navarre seemed

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to lose control of the classroom,” the reporter allows, even encourages, readers to believe that the number of people interviewed was greater than the four identified as “a sixth-grade girl,” “a sixth-grade boy,” and their mothers. Since these reports identify only the complaints of two students, along with what they may have reported to their mothers, the data collection process used to represent the entire group appears to be faulty. Representation of truth based on limited evidence is, in itself, misleading, especially when the information comes from twelve-year-old disappointed children. Proof of falsity of the statements in an article is normally hard for the defense to overcome. And since, following Sullivan, the teacher was declared to be a public person, Navarre still had to prove that the newspaper’s statements were made with actual malice and reckless disregard for the truth. In preliminary discussions, defendant Pioneer Press had been arguing that the article expressed the writer’s opinions rather than facts, another task for the plaintiff to address. Both tasks were compatible with linguistic analysis.

Negative Prominence In considering malicious language, it is useful to examine the prominence of crucial negative remarks as a measure of how they cast light on the rest of the article. The word “nothing,” quoted or not, appears prominently as a unifying catchword throughout the May 30 and June 11 Pioneer Press articles. “Nothing” appears in the headlines, the first paragraphs, and in the sub-headings. “Nothing” was created by the Pioneer Press staff and was not quoted in any sources that were interviewed. The tone of these articles was set by the repetition of “nothing” in the paragraph beginnings and in large print in the headlines and sub-headings. The rest of the text in the articles contains examples, quotations, and paraphrases used to support the

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newspaper’s own idea that nothing was learned in Navarre’s classroom. As a result, “nothing” became the plaintiff ’s rallying cry.

No Retraction or Apology This entire matter might have ended more peacefully with retractions or apologies (or both) from Pioneer Press and the school system. That could have prevented a lawsuit, but it didn’t happen here. The June 11, 1997, Pioneer Press article announcing the positive results of the retesting of Navarre’s students, at least two of whom claimed to have learned little, continued to paint Navarre in negative terms. This article focused on the students and the local school system without retracting the negative impression conveyed by the May 30 article. The word “nothing” is repeated prominently in the headline, again in the first paragraph, in the ninth paragraph, and in a second boxed area halfway through the article. Even the caption “Students learned something after all” could be considered to damn with faint praise, using the unspecific words “something” and “after all.” The first paragraph describes the student’s complaint, “their teacher taught them little.” The fourth paragraph says, “months of repeated student and parent complaints induced an investigation.” It goes on to report that the superintendent said he didn’t know “what if any disciplinary action may result,” leaving the inference that disciplinary action was still a viable option. Paragraph five points out that the superintendent said, “she will be assigned to another building.” None of this suggests an apology or retraction of earlier misstatements. The best that the article says about Navarre is that her retested students did about as well as other students in the system. Even when clearly verifying that Navarre apparently was not remiss in her teaching, the superintendent focused on the students, not on the damage done to Navarre’s reputation: “Overall though, the Superintendent

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said that concern about kids learning nothing, as some claimed, appears unfounded as shown by the test results.” Only four sentences in this article have the teacher as their topic. One of the four indicated that she was put on paid leave the last three weeks of the school year after months of repeated student and parent complaints had induced an investigation. One noted that the superintendent does not know what, if any, disciplinary action may result. One noted that she will be assigned to another building. And one reported that her students scored as well as other students in the system. These four sentences continue the negative pattern established in the May 30 article. Nowhere is there a claim that the negative impact of the May 30 article was wrong. The Pioneer Press did not make an effort to rehabilitate the image it created of Navarre’s teaching ability and it made no effort to describe her as a good, or even average, teacher. No retraction and no apology, especially after the facts indicate that Navarre had done no wrong, was an open invitation to be sued. If this were an eighteenth-century duel instead of a defamation case, bloodshed could have followed.

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4

Widow of a Murdered Man Sues a Local TV Station On October 30, 1993, Dennis Stokes was killed by a shotgun blast to the head while lying asleep in his bed at his Anoka County, Minnesota, home. The local Sheriff ’s department began an investigation promptly, headed by Deputy Tom Johnson. Perhaps because it is statistically common in such cases that the spouse is the guilty party, Johnson focused on Stokes’s wife, Terri, as the prime suspect. He concluded that Terri Stokes had the motive and opportunity to kill her husband, but after five months of investigation, the Sheriff ’s office had not been able to find sufficient evidence to connect her to the crime. Toward the end of this period, Johnson was approached by WCCO, a local television station that expressed interest in airing a report to update viewers about the progress of the investigation. The program was broadcast on April 4, 1994, and statements by Johnson regarding Terri Stokes’s involvement in her husband’s murder were the centerpiece of the broadcast. In the interview, 55

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Johnson told the reporter that his “only suspect” in the case was Terri Stokes. On December 23, 1994, the nationally syndicated news show American Journal aired its own story on the Dennis Stokes murder. Once again, Deputy Sheriff Johnson’s statements about Terri Stokes played a primary role in the broadcast. By that time, Johnson’s investigation was at a standstill and Terri Stokes had moved to Idaho. Early in 1996, Terri Stokes filed a defamation suit against Johnson, Anoka County, CBS (doing business as WCCO), and King World Productions, the producer of American Journal. Both sides in the case agreed that any potentially defamatory meaning conveyed by the defendants emerged from statements made during the April 1994 WCCO broadcast and during the American Journal broadcast conducted outside Terri Stokes’s Idaho residence in December 1994. To this meeting the reporters brought along Terri Stokes’s mother-inlaw, Joyce Stokes, who was apparently eager to confront her estranged daughter-in-law. Even the judge in this case referred to this as an ambush strategy. The relevant portions of these programs are: WCCO DIMENSION NEWS Broadcast johnson: Somebody walked directly to the house, up the stairway, into the bedroom and, it appears, shot him while he was sleeping. (She)* pulled the trigger. This was a personal thing. I think it was a well planned out, methodical execution of Dennis Stokes. *(WCCO did not agree that “she” is the word used here) reporter: By his wife? johnson: I believe so. reporter: Do you have any doubts about the direction you are going? johnson: No. 56

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johnson: At this point, when you start focusing in on her, she tries to get away from the question. At this point she wants to use the bathroom, next minute she wants to talk to her dad. You know, you close her in and try to confront her; she runs. AMERICAN JOURNAL Broadcast reporter: Even more shocking is that police believe the family man’s killer was someone very close to him. johnson: This was a crime of passion. johnson: We don’t have enough evidence to show, to prove that she did it beyond a reasonable doubt. I think we have a lot of reasons why. reporter: We went to Terri Stokes home to get some answers from Terri about (Dennis Stokes’)* death. *(American Journal did not agree that “Dennis Stokes” was said here) reporter: (summarizes the accusation that Terri Stokes was running away) reporter: Joyce Stokes was left with no answers to the questions she came all the way to Idaho to ask.

Accuracy of the Words The first step in any lawsuit involving language evidence is to obtain an accurate record of the actual words used. Although both parties agreed that the above texts were probative, this did not limit linguistic analysis to the written transcript alone. I was given the videotaped recordings of the programs that were actually very clear in the asterisked passages noted above—the disputed references to “she” and “Dennis Stokes” could be heard clearly. 57

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Speech Acts: Reporting Fact vs. Giving Opinion Defendants claimed that the disputed communications were speculation and opinion that are incapable of being proven false and therefore do not convey an actionable defamatory meaning. The Minnesota court relied on Janklow v. Newsweek, Inc. 788 F.2d 1300 (8th Cir. 1986). Janklow uses four factors to evaluate whether a statement has defamatory meaning: (1) the statement’s precision and specificity; (2) the statement’s verifiability; (3) the social and literary context in which the statement is made; and (4) the statement’s public context. The first and second factors go to whether a statement can be considered a fact or opinion. The third factor addresses contextual factors that may affect how the statement was received. The fourth factor considers the broader public context in which the statement was made. In the two broadcasts analyzed, four discourse features can lead listeners to believe that the defendants accused Terri Stokes of being the actual murderer of her husband: discourse framing; the failure to seek the speaker’s clarification of ambiguous statements; the use of conveyed meanings; and referential definition. Following are examples of these four discourse features. Discourse framing Framing involves choosing words and images to lead speakers and readers to a desired mental perception or frame. Sometimes writers and speakers frame concepts consciously, as in much of political discourse about “sectarian violence” instead of “civil war,” or “enhanced interrogation techniques” instead of “torture.” Such frames organize things for us and can reach the level of deliberate spin. Discourse, such as a news program, is usually introduced with a frame of reference that tells the listener or reader the direction in which the following text can be understood. Since these two programs were 58

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about a murder, it is can be expected that the framing would be set in that way. But the WCCO Dimension News broadcast goes one step further, specifically framing the current murder story with an analogy to a previous case, as follows: male reporter: During the last few weeks you’ve probably seen or read about the latest in the so-called I-35 murder. female reporter: A widow and her one-time boyfriend have been indicted for murdering her husband. Well, tonight’s Dimension examines another case where the victim’s widow is coming under close scrutiny. An analogy is an inference conveying that if two or more things agree with one another in some respects, they also will probably agree in others. Framing the story with the analogy of one widow’s indictment in the I-35 murder case with a different widow in the Stokes case encourages the inference that these two separate cases are also alike in other damaging ways. The use of the discourse marker, “Well,” signals that what follows has semantic cohesion (Schiffrin 1987, 102–127) with the I-35 murder. The use of “another” strengthens this connection. To this point, Terri Stokes continued to be a suspect in the case, but this discourse framing encourages listeners to infer that she, like the widow in the I-35 murder, is more than a mere suspect. It is easy for readers to miss the analogical frame used here, but frames and their implications can be linguistically tested against reality. And in this lawsuit they were. Failure to request clarification of ambiguous statements Another commonly occurring feature in discourse is that of ambiguity, using an expression that is capable of more than one understanding. The cooperative principle (Grice 1967 [1975], 45) argues that listeners expect speakers to strive to be explicit and clear, avoiding

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ambiguity. When the speaker is not clear, it is often the case that the listener will request clarification in order to resolve the ambiguity. But there are times when ambiguity can be exploited for the speaker’s own specific purposes (Shuy 2005, 15–16). It is undisputed that Deputy Sheriff Johnson continued to believe that Terri Stokes was a suspect. He stated more than once, in fact, that she was the “only suspect.” The issue in this defamation lawsuit was not that Johnson considered Stokes a suspect; rather it was that he singled her out as the only one who committed the crime. In the American Journal broadcast, the following exchange illustrates how the reporter made no effort to resolve an ambiguous statement made by Johnson: reporter: The night of the murder, Terri had been sleeping at her brother and sister-in-law’s, a half-hour away . . . Still, Investigator Johnson says Terri was alone downstairs, and might have secretly left the house during the night. johnson: We don’t have enough evidence to show, to prove that she did it beyond a reasonable doubt. I think we have a lot of the reasons why. Although Johnson’s last sentence is ambiguous when isolated from context (the reason why she did what?), it is clear from other instances when both Johnson and the reporters state that Terri Stokes is the “only suspect” that what Johnson means when he says, “reasons why” is that she was the killer. Since the reporters and producers made no attempt to correct or clarify these words, listeners are encouraged to understand Johnson’s meaning to be, “reasons why she murdered her husband,” which appears to be a clear accusation. That his accusation was not verified was made clear by Johnson’s “we don’t have enough evidence to show,” but in the context of a murder investigation, the result is relatively clear. By not requesting clarification about Johnson’s statement, especially in a situation in which there is only one suspect, the broadcast allowed, even encouraged, listeners to interpret that 60

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statement as an indication that Terri Stokes was accused as the person who committed the murder. Another ambiguity occurred in the American Journal broadcast, when the reporters brought Terri’s mother-in-law, Joyce, along with them during the ambush interview in Idaho: reporter: Joyce Stokes was left with no answers to the questions she came all the way to Idaho to ask. joyce stokes: I don’t know why she won’t talk to me. If she’s not guilty, why won’t she talk to me? Why doesn’t she tell me she’s sorry? She won’t do it. reporter: You’re one hundred percent sure that Terri killed Dennis? joyce stokes: One hundred percent. There is no doubt about it. Here Joyce Stokes claims to want an apology from Terri. Apologizing is a speech act that has certain required conditions, one of which is that it be connected to the alleged offense. The mother-in-law’s lament that Terri has not apologized to her is ambiguous as to what Terri should be sorry for: either that she won’t talk to her mother-inlaw or that she killed her son, Dennis. In this case the ambiguity is resolved by the reporter on behalf of Joyce Stokes. The reporter infers that Joyce Stokes meant that she wants Terri to say she’s sorry for killing her son. The reporter did not request clarification of Joyce Stokes’s ambiguity but, by choosing one of the two alternatives for her, the reporter encouraged the meaning that Joyce Stokes also accused her daughter-in-law of the murder.

Conveyed meaning Otherwise benign words and expressions, such as “made plans,” “was alone,” “secretly left the house,” “went unanswered,” “left town,” and 61

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“living with,” can convey meanings far beyond their usual dictionary senses, especially in the context of a broadcast about a murder. The following illustrate: “made plans” This expression was used in the WCCO Broadcast: reporter: Dennis was staying here alone that evening; his wife made plans to sleep at her sister-in-law’s. In the context of a murder scenario in which there is an accusation that the murder was carefully planned, the expression, “made plans,” even in the specific context of planning to sleep at a relative’s home, can cause otherwise benign behavior to appear to be covert. This wording, benign as it seems, encourages listeners to believe that Teri Stokes had planned her alibi for the murder or even worse, planned the murder itself. “alone” The following expression was also used in the WCCO broadcast:. reporter: She did spend the night at her sister-in-law’s the night of the murder, but authorities say there were some periods of time when she was alone. Even though it is common for a guest to sleep alone in the home of a host, the use of “alone” in this context conveys the idea of suspicious behavior. “secretly” The American Journal broadcast picks up on WCCO’s use of “alone” and increases the idea of suspicious behavior even more by adding “secretly”:

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reporter: Still, investigator Johnson says Terri was alone downstairs, and might have secretly left the house during the night. “Secretly” conveys motive and covertness. Expressions such as “left the house,” “quietly left,” or “left unbeknownst to her hosts” would have conveyed less of this than “secretly.” People who do things “secretly” easily can be suspected of bad intentions. “questions were unanswered” It is common for people to complain, when someone refuses to talk with them, that such refusals are based on ill will, guilt, or other possible unstated reasons. Reporters for the American Journal twice pointed out that their request for an interview with Terri Stokes was rejected: reporter: American Journal’s request to Terri and her lawyer for an interview went unanswered. male reporter: (shouting to Don Amerusso, a man in the house where Terri was staying): Terri clearly saw her mother-in-law here and she ran off like that. Is there any reason why? I mean, we’d be happy to ask her. female reporter: But Don Amerusso didn’t have much to say to us. Joyce Stokes was left with no answers to the questions she came all the way to Idaho to ask. It is often the case that people refuse to speak with reporters because they have reason to suspect that they cannot trust the accuracy of what will be reported or because they feel harassed by the media. The effort to convey to listeners that their refusal to talk was a refusal to talk with the media rather than a refusal to talk with her mother-in-

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law is transparent here, despite the effort by the reporter to explain the reporters’ role in all this: reporter: We went to his home, along with Dennis Stokes’ mother, Joyce Stokes, so that she could get some answers from Terri about her son’s death. The reporters’ claim here is that the purported reason for the trip to Idaho was to enable Joyce Stokes to get answers to her son’s death and not, of course, for the reporters to get a news story. Interestingly, this statement also presupposes that Terri actually had “some answers” to give about the murder. “left town” Based on the reasonable assumption that most people who commit crimes run away as fast as possible, Terri’s failure to return phone calls to the reporters and, even more, her decision to move to Idaho, far away from the constant questioning of many people, apparently looked suspicious to investigator Johnson. The American Journal broadcast called attention to this: reporter: While Anoka County authorities continue to investigate the murder of Dennis Stokes, Terri Stokes has left town. The causal connection between the murder and Terri’s leaving town places Terri in the unfavorable light of appearing to be trying to escape punishment. Here again, the otherwise benign words “left town,” placed in the context of this investigation, can lead the reader to infer that Terri Stokes was the killer. “living with” Immediately following the preceding sentence, the reporter said:

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reporter: She is now living here, in Mountain Home, Idaho, with her second husband, a man she divorced ten years ago. The expression “living with,” in the context of a male and female at least, has come to mean living in sexual intimacy with another person to whom one is not married. Thus, the reporting conveys that Terri’s taking up residence in Idaho with her ex-husband involves sexual intimacy or, in the minds of many, sexual looseness. This is an example of what I call “the contamination principle” (Shuy 2005, 22–24). This conversational strategy is sometimes used by some undercover police as they pepper a tape with topics and language that is irrelevant to the suspected crime, producing a conversation that looks more covert and illegal than it might otherwise be. It would have been possible to express Terri’s new residency in terms that avoided a contaminating implication, but the reporter appears to have added sexual implications to the report. Another unidentified, on-the-spot reporter who had joined the ambush interview picked up on the American Journal reporter’s sexual reference, shouting a question from the distance to ex-husband Don Amerusso: unidentified reporter: Can we just ask you what she’s doing living with her second husband? The conveyed meanings of the expressions used in these examples in the context of a murder are different from the everyday meanings that one might find in a dictionary. The reporters’ expressions “making plans,” “alone,” “secretly,” “refusing” to speak with reporters, and “left town” are all expressions that can contribute to the belief that Terri Stokes was guilty of the murder. The repeated use of “living with” adds a sexual dimension that goes negatively to her moral character.

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Grammatical Reference: Reporting Fact vs. Giving Opinion One convention of language is that undefined or ambiguous words in a text are subsequently explained more fully at a later point, either by explicit definition or by referencing. The most commonly used method of grammatical referencing is the use of pronouns to refer to their antecedents, as in the sentence, “Bill went to the store and he bought some bread,” where the pronoun, “he,” is defined by the antecedent, “Bill.” Nouns can also provide referential definition, particularly when one noun is consistently used to define a specific person or thing. In this case, the reporter’s use of the noun “suspect” is significant. Investigator Johnson, at least on the occasions when he is quoted in the broadcasts, is careful to indicate that Terri Stokes is the number one suspect. He also makes it clear that she is the only suspect on more than one occasion: WCCO broadcast johnson: No, she’s the one and only suspect. AMERICAN JOURNAL broadcast johnson: We only have one suspect, and that is his wife. (said two times in this broadcast) The various reporters also repeatedly state that Terri Stokes is the identified suspect: WCCO broadcast female reporter: Dennis’s wife became a suspect within 48 hours of the murder and today is still the primary target of the investigation. . . . male reporter: . . . the suspect’s own family . . . 66

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AMERICAN JOURNAL broadcast voice-over: Police believe the family man’s killer was someone very close to home. female reporter: Now police say they have only one suspect. The most interesting use of “only suspect” was given by Johnson himself. Having defined the one and only suspect as Terri Stokes, Johnson then says the following: johnson: The suspect walked directly into that house, up the stairs, into the bedroom, and shot Dennis Stokes right between the eyes while he was sleeping. The two broadcasts made it very clear that the one and only suspect was Terri Stokes. Here Johnson makes a referentially defined, explicit, unambiguous representation that “the suspect” walked directly into the house, up the stairs, into the bedroom, and shot Dennis Stokes right between the eyes. The “one and only” suspect has been repeatedly identified as Terri Stokes and now Johnson says that “the suspect” shot her husband and killed him. He did not say “a suspect” with an indefinite article. He used the definite article when he said “the” suspect. Having the opinion that Terri Stokes is the only suspect is one thing, but indicating that she committed the murder is stated here in the form of a fact, not an opinion. Johnson did not qualify his statement with words indicating that this was an opinion. His statement is couched in the past tense, common to statements of fact and less common in statements of opinion. His statement was about an act already completed, something that had objective reality and actual existence, capable of independent verification. By offering no clarification or comment about Johnson’s words, the broadcast adopts them linguistically as part of the view put forth by the police. By adopting 67

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Johnson’s words that Terri was the only suspect, they also adopt and widely publish his statement that she committed the murder. One of the contributions of linguistic analysis to cases such as this is to point out aspects of the otherwise unseen advantages that some speakers have over others. The verbal exchanges in this case demonstrate how media interviewers are more competent and advantaged than their layperson listeners. Even eighteenth and nineteenthcentury duelists took advantage of whatever edge they could get. For example, when Abraham Lincoln was challenged to a duel, it was his prerogative to select the weapons to be used—pistols or swords. With his tall frame and very long arms, his choice was obviously to his advantage—the long sword, which was probably an important factor in the negotiated settlement that avoided actual combat (Holland 2003, 173–174). A bevy of experienced interviewers can not only ambush a less competent speaker, but can also apply their interviewing parries and thrusts upon audiences less skilled in the art of verbal dueling. Most listeners are not very likely to notice the discourse framing of the broadcasts or that there was little attempt to clarify important ambiguities. Nor would they be likely to catch the conveyed meanings in words such as “made plans,” “secretly,” “alone,” “left town,” “living with,” or the report of allegedly unanswered phone calls. And it would take some skills of linguistics and logic for them to connect the significance of Johnson’s several references to his having “only one suspect” with the point at which he says, “the suspect . . . shot Dennis Stokes right between the eyes.”

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5

A Religious Leader, the TV Media, and the FCC Sun Myung Moon claims that the Unification Church had its origins on Easter Sunday, 1936, in Korea, at which time, he says, Jesus Christ appeared to him (he was then a sixteen-year-old boy) and asked him to complete God’s work on earth. His subsequent evangelism work first landed Rev. Moon in a North Korean labor camp, where he claims he was tortured repeatedly. He escaped and is said to have carried a wounded follower on his back all the way home to South Korea. In 1951, Moon established his first church there. After the Korean War ended, a number of young military officers, including Bo Hi Pak, converted to the new Holy Spirit Association for the Unification of World Christianity. Toward the end of the 1950s Moon and his missionaries left Korea to spread their faith, first in Japan, where the beginnings of the church’s political alliances began. Soon afterward he took his movement to America, where he found considerable financial and political support for his conservative views. This controversial religious group has caught the public eye over the years, 69

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leading to the matter before the Federal Communications Commission that is described here. On January 21, 1992, the Public Broadcasting System (PBS) aired an hour-long program called, “The Resurrection of Revered Moon,” on its Frontline documentary program. As a result of this broadcast, Reverend Moon and the Unification Church International (UCI) filed a complaint with the Federal Communications Commission (FCC) for relief under 41 C.F.R. § 73/1920(a), the “personal attack rule,” in effect at that time, which provided: (a) When, during the presentation of views on a controversial issue of public importance, an attack is made upon the honesty, character, integrity or like personal qualities of an identified person or group, the licensee shall, within a reasonable time and in no event later than one week after the attack, transmit to the persons or group attacked: (1)

Notification of the date, time and identification of the broadcast; (2) A script or tape (or an accurate summary if script of tape is not available) of the attack; and (3) An offer of a reasonable opportunity to respond over the licensee’s facilities. Reverend Moon and UCI complained that Frontline made direct and extensive personal attacks, including an accusation that they had violated federal law, specifically that UCI is improperly funded and controlled by foreign interests hostile to the United States, and that Frontline had inferred that Unificationism is not a bona fide religion. In addition, the complaint argued that many of the statements made during the program, as well as the program on the whole, constituted

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a personal attack upon the honesty, character, and integrity of both Reverend Moon and the UCI. In this complaint, the church requested the FCC to order PBS to provide the UCI a reasonable opportunity to respond to the attacks in accordance with the above-cited rule. In one sense, this complaint was unlike conventional defamation cases, since it was bought before the FCC to get the opportunity to respond, rather than for financial compensation through litigation in the courts. But the linguistic context was much the same: there was a body of data in which the alleged defamation took place (the Frontline television program) and there were regulations to use as a yardstick to measure whether or not acceptable and proper representations were made by the media. In that sense, UCI’s request was like an original complaint letter sent by a lawyer to an offending party in a defamation case, and it harks back to the days of dueling when such a letter began that bloody process. This specific Frontline program received a 3.2 viewer rating, meaning that over a million households watched it, ample evidence that it met the criterion of being widely published. Following the FCC rule cited above, lawyers for UCI requested a reasonable opportunity to respond to what they considered Frontline’s one-sided and unfriendly portrayal of Reverend Moon and his church. PBS and Frontline refused this request, leaving to UCI the alternative of bringing this action before the FCC. So the dispute escalated. Were the facts reported by PBS accurate? Following the “personal attack rule” that was then in effect in defamation law, the petitioners felt that many of the charges made in the Frontline program could be rebutted with facts, including the allegation that the church had violated the Foreign Agents Registration Act (FARA) requiring persons who represent foreign principals in certain contexts to register with the Department of Justice and to identify the persons on whose behalf they were acting. Frontline asserted that UCI controlled an

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organization known as American Freedom Coalition (AFC), which was deeply involved in conservative causes such as support for Operation Desert Storm and the legal defense of Colonel Oliver North. The Frontline broadcast claimed that UCI and AFC violated federal law by not registering under FARA. Frontline also cited the Washington Times newspaper, calling it a “Moon organization,” which also had failed to register under FARA. Finally, the Frontline program alleged that UCI was not a legitimate religious institution by referring to its history as “lore” and “theocratic ideology” and by mocking Reverend Moon’s claim to being personally called by Jesus to establish UCI and to do his work. The program further claimed that the religious structure of UCI, “once labeled as a cult, is now more accurately described as a conglomerate from media operations in the nation’s capital with substantial numbers of real estate holdings throughout the United States from large commercial fishing operations, advanced high tech and computer industries, a Fifth Avenue publishing house, and dozens of other businesses, foundations, associations, institutes and political and cultural groups.” The most important aspects of this matter, the factual issues, were of course the territory of UCI’s lawyers to rebut or affirm. I was asked by one of UCI’s lawyers at the Washington, D.C. law firm of Williams and Connolly to offer any linguistic assistance I could provide that they hoped would support their client. The role of the linguist working on the plaintiff ’s side was to analyze the Frontline program for any evidences of language that allegedly impugned the honesty, character, or integrity of UCI and Reverend Moon. I found that the Frontline program used the following language features: unspecified evidence, accusation, ambiguous expressions, cloze procedure representations, and quotations taken out of context.

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Conveyed, Insufficient, Implied Evidence The alleged connections of UCI with the American Freedom Coalition (AFC) and the Washington Times were evidenced by the following citations from the program: “. . . one citizen, Marv Kamerer, went to the library and found that the AFC is an extension of the Unification Church.” Although we are not told what the library material was, the statement conveys the idea that such information led to such a conclusion. While showing a brief flash on-screen of a 1989 article in the Washington Post, the narrator reports: “more than $5 million, one-third of the AFC’s money, came from business interests of the Unification Church.” If the Washington Times article contained such information, Frontline listeners were given no specific clue about it. The narrator cites “the influence over the AFC” from a letter obtained by Frontline. The narrator reports, “In this letter, AFC president Robert Grant . . . thanks him for investing heavily and helping bring the AFC into being.” The letter was not shown on screen in its entirety. Only its left side was visible, leaving sentences and phrases to be completed by inference, known elsewhere as the cloze procedure: Also let me say that I ____________________ Coalition has probably___________________ and the Unification______________________ have invested heavily_____________________ in overcoming bigotry____________________

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The narrator then reported a statement that this letter allegedly said: “Grant concludes by telling Moon, without your leadership, vision and support of your devoted followers, the AFC would not exist.” This part of the letter did not appear on the screen. Those who saw the program were left to infer that it was said and that it was accurate. The narrator continued:

narrator: “Moon’s most expensive political project was a newspaper, the Washington Times.”

A brief comment by James Whelan, former editor who at his resignation stated: “Ultimately Moon called the shots.” The narrator also mentions that in a thank-you letter allegedly written by AFC president Robert Grant to Reverend Moon, Grant thanks Moon for “business interests connected to the church” and for “investing heavily and helping bring the AFC into being.” It is not specified what “business interests” actually refers to here.

Accusations narrator: “These are the images many still retain of Moon and the Moonies . . . allegations of mind control and brainwashing.”

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“Images” and “allegations” are what they are, but they do not reach the level of evidence. Petitioner asked only to be given the chance to answer the accusation. narrator: “But Moon has been quietly gaining strength . . . He still hints that he is the Messiah.” No evidence supporting such “hints” was given in the program. Clip of former editor, James Whelan saying: “. . . probably more an influence of power than any organization I know of in this country and that includes the AFL-CIO. That includes the US Chamber of Commerce. That includes General Motors. That includes anybody.” These are the words of the disgruntled former Washington Times editor. narrator: “How and why did Sun Myung Moon amass such power and influence?” This question assumes without specifics that “such power and influence” actually exist. narrator: “Moon sought to influence the American political agenda by pouring more than a billion dollars into media . . . for a global empire.” Specific evidence of such a political agenda was not given. michael warder (manager of News World, Moon’s daily newspaper in New York City): “Moon was the brain and the media are to be the communications vehicle for his body politic surrounding the globe. . . . Moon wanted total control of the media.”

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This is the opinion of a disgruntled former editor, who ascribes intention without giving specific evidence. narrator: “The Moon organization has spent an astonishing amount in the United States—more than 800 million dollars on the Washington Times, hundreds of millions on national periodicals, tens of millions on electronic media, at least $40 million on New York newspapers . . . it adds up to more than $1 billion.” Citations for these figures are not given.

Conveyed Meaning: Implying That UCI and Moon Had Something to Hide This is an unfortunate but common media strategy. When programs attack individuals or groups, they often feel obligated to seek responses from those under attack. More often than not, the attacked individuals have no interest in talking with the media, since they may believe that nothing good can come of it. Nor is it at all clear just how hard the media personnel really try to contact them, or the real reasons why those attacked did not respond. Frontline uses this familiar strategy throughout the broadcast:

narrator: “When we asked Robert Grant to discuss AFC ties to Moon, he refused. In a letter to Frontline Grant stated, ‘I see no point in speaking with you either on camera or off camera.’ ”

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narrator: “. . . when Eric Nadler (an interviewer) visited AFC headquarters no one would talk.”

narrator: “Washington Times officials repeatedly refused to comment to Frontline, even when we showed up with our camera to press for some answers.”

narrator: “. . . and when we visited another Moon-funded publication, The World and I, the reception grew even colder.”

narrator: “Neither President Bush nor Bo Hi Pak would comment to Frontline.”

narrator: “When we visited Gavin’s office in McLean, Virginia, our request for an interview was refused.”

narrator: “Ronald Regan also declined to comment.”

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narrator: “When we visited the Justice Department, officials there had nothing to say.”

narrator: “The White House declined to comment.”

narrator: “Finally, Reverend Moon also refused to talk to Frontline.”

Implying That the UCI’s Sources of Funds Are Tainted narrator: “So where does the money come from? Moon himself told the Senate Judiciary Committee in June, 1984 the money came from overseas . . . Not from Korea . . . For nearly two decades it has been reported that one major Moon patron is Ryoichi Sasakawa, one of the richest men in Japan . . . the motorboat racing industry. Legalized gambling on sport is a $14 billion-a-year industry in Japan.”

narrator: “Moon . . . asked Sasakawa to be one of the principle advisers to his church inside Japan . . . Sasakawa . . . in 1939 flew to Italy to meet with Benito Mussolini . . . He formed

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one of the most radical of the fascist parties inside Japan. He was . . . calling for war with the United States . . . Sasakawa was sent to prison with two other suspected war criminals, Yoshio Kadama and Nobosuke Kishi. Kadama went to on become a leader in Yakuza, an organized crime syndicate of Japan. Kishi went on to become Japan’s prime minister. All three men reportedly played key roles in the early days of the Moon organization.”

Frontline links Moon intimately with reputed war criminals Sasakawa (a wealthy man with a gambling empire), Kadawa (an organized crime figure), and Kishi (a politician). The extent to which Sasakawa’s financial support reached the UCI, if at all, is left unclear. The degree to which his money is tainted is also unspecified. What clearly remain are the implications of his having a gambling empire, his being a war criminal, and his meeting with Mussolini. The implication of Kadama’s role is that he is associated with organized crime in some unspecified way.

Malicious language The broadcast also attacks the integrity, character and honesty of Reverend Moon and others with its choice of pejorative words, as the following illustrate. “supposedly” narrator: “The Unification faith is a new religion. It traces its origins back to Easter Sunday, 1936, when Jesus Christ supposedly appeared and asked the 16 year old Moon to complete God’s work on earth.”

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There are several alternatives available here to the narrator besides “supposedly.” If he had said “allegedly,” for example, the statement would indicate that an accusation had been made previously by someone. If the narrator had said, “Moon reported that Jesus Christ appeared to him,” no such accusation is associated. The same would be true for other variations, such as “Moon said,” or “Moon is reported to have seen Jesus Christ,” and others. But the use of “supposedly” here casts doubt on the veracity of the event. It is a hypothesis or suggestion, involving tentativeness or uncertainty. The adjective “supposed,” in fact, is defined as “pretended or imagined” as well as “understood or required.” “junket” narrator: “The World Media Association sponsors allexpense-paid conferences and junkets for journalists all over the world.” Although the standard definition of “junket” is “a trip made by an official at public expense,” this term is now used pejoratively and more broadly for others besides public officials, implying deception if not outright illegality. “Moonies” narrator: “ . . . the Moonies, as his followers once called themselves.”

whelan: “ . . . a Moonie newspaper.”

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Groups, places, and organizations are often identified with a suffix, usually -ite, -ion, -ist, -er, -ic, or -ant. The -ie suffix is generally understood either as a diminutive or is associated with a thing or quality. Language is used with degrees of formality, which linguists call registers. Words, pronunciations, and even grammatical constructions can be varied to suit the registers of the formal, consultative, casual, or intimate styles. Religious organizations are usually discussed in a formal register, out of respect or tradition, such as Methodist, Fundamentalist, Calvinist, Protestant, Apostolic, Catholic, Buddhist, or Episcopalian. In some cases, in an effort to convey derogatory representation of a church or church group, an -ie suffix is used, such as Fundie or Moonie, particularly when there is a nonderogatory alternative readily available, such as Fundamentalist or Unificationist. It might be argued that if members of a group once, or even currently, themselves use the informal alternative as a self-designation, the term is then justified for use by outsiders. But if this were true, then a pejorative term such as “nigger,” which is used by certain African Americans as a way of identifying themselves within their own specific group, might also be considered acceptable and nonderogatory when used by outsiders as well. As some painfully have learned, this is simply not true. Names of groups, especially religious groups, are subject to the same constraints of usage that govern formality levels, changes over time, and complex rules governing their uses by both insiders and outsiders. “front man” Daniel Jounas (author of Moon Rising, a history of the Unification Church), is quoted on the Frontline program:

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“Kishi had emerged as a front man for the Moon organization and Sasakawa served as an adviser. He was the behindthe-scene power broker who was manipulating the Moon organization.” Again the formal register normally used in religious contexts is abandoned. For example, one would not expect a Cardinal to be referred to as a front man for the Pope. An assistant minister is not called a front man for the senior minister—unless such terms were intended to be derogatory.

Second Thoughts To be perfectly candid, working on this case was very difficult for me. Most difficult was that I had to overcome my predisposition to be unsupportive of the client. But one of the important principles for experts is that they must be able to maintain their objectivity and integrity in spite of their personal feelings or preferences (Shuy 2006, 35–36). The data are what they are, no matter on which side one works. One does the best one can to point out the positives and negatives of the data provided. Readers may note that the best that my analysis of the data could do for UCI and Reverend Moon was really not all that much. Anyway, the case was not entirely about proving defamation; it was more about convincing the FCC that UCI and Moon deserved the opportunity to get air time to make a rebuttal. This meant that my task was to determine whether or not Frontline had made an attack on the honesty, character, and integrity of the UCI and Reverend Moon. It seemed to me that Frontline made many charges of a factual nature that should have been evidence enough for Moon’s attorneys to try to refute in this petition. But they wanted me to

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examine the language for additional evidence of the attack on honesty, character, and integrity. What I found was heavily implicated statements, as noted above, along with a few pejorative terms. This was not exactly a smoking gun, but perhaps enough to show that giving UCI a chance to make a rebuttal was probably the right thing to do.

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6

Las Vegas Headliner Wayne Newton Sues NBC On October 6, 1980, NBC Nightly News aired a program called “Wayne Newton and the Law.” This was followed by two other broadcasts about Newton on December 6 and the following June 12. Originally, it was not very clear what motivated the first of these programs, but some insights can be gained from Newton’s testimony before the Nevada gaming commission that occurred around that time. Newton previously had openly declared his intention to purchase assets in the Aladdin Hotel in Las Vegas. Such purchases require careful investigation about the background and intentions of potential buyers, including their financial records. It was rumored that Newton was associated in some way with a man named Guido Anthony Penosi, thought to be an underworld figure, and so the gaming commission hearing focused on this rumored connection. In his testimony before the gaming board, Newton recounted how he met Penosi. One night, when Newton was seventeen years 85

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old and singing at the Copacabana in New York, Penosi waived a hundred-dollar bill in front of him and asked him to sing a specific song. Newton sang it but refused to take the money. Penosi came back a second night and made the same offer, with the same results. From that point on, Penosi would show up with friends and take bets with them on the fact that no matter how much money he offered Newton, it would be refused, which it was, every time. One night, Penosi invited Newton, his mother, and his brother to his home. This happened only once and Newton testified that this constituted his entire relationship with Penosi, whom Newton said he considered only an ardent fan. After a series of further questions, Newton’s testimony ended and he walked out of the courtroom toward the parking lot. As he entered the hallway, he was intercepted by NBC reporter Brian Ross, who pursued Newton’s alleged connection to Guido Penosi in the following exchange, captured on NBC videotape: ross: What about these questions about Guido Penosi? newton: I answered them all, and that’s the absolute truth. ross: Did you make a phone call last year on his behalf to the Los Angeles County police? newton: Not to my knowledge. ross: You made no phone calls to Clark County? newton: I don’t know what this interview has to do with Mr. Penosi. ross: It has to do with Mr. Penosi being in town over 48 hours and failing to register as a convicted felon. . . . When was the last time you talked with him? newton: Oh, maybe a year ago. (turns and walks away) Thank you. ross: Was he here at all on your behalf?

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newton: Can we do this some other time, some other place? ross: Right now is the time. newton: No, it is not. It might be for you, but it’s not for me. ross: Why is that? newton: No comment. ross: Just no comment? About Guido Penosi? newton: No. ross: Frank Piccolo? newton: No, sir. ross: Ever hear of Frank Piccolo? newton: No, sir. ross: Connecticut? newton: I’ve heard of Connecticut, yes. ross: Mark Moreno ever talk to you about Frank Piccolo? newton: (shakes head no) (walking out the door to the parking lot) newton: They’re following me around. ross: (inaudible) Penosi. newton: I really don’t care what you want. ross: Pardon me? newton: I said I really don’t care what you want. ross: I’d like to talk to you about Guido Penosi. newton: Go ahead and talk. ross: And your relationship with him. Was he ever here to provide protection for your children? newton: Come on, that’s silly. (Newton gets into car and waves good-bye) Celebrities face ambush interviews all the time. Sometimes they show patience and sometimes they don’t. Newton was obviously tired

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after his testimony at the gaming board hearing, where he thought he had already answered these questions. This brief verbal duel was about whether or not to have an interview at all. Ross got short shrift, which he went on to use as a weapon in his following news broadcast. A few days later, NBC aired the special segment by Brian Ross called “Wayne Newton and the Law.” It began with Ross pointing out that Penosi is a New York hoodlum from the Gambino Mafia family with main concerns for narcotics and show business and that Penosi was now under grand jury investigation involving Wayne Newton’s proposed purchase of the Aladdin. Ross reported that despite the singer’s huge income, Newton had a financial problem and had called Penosi for help. According to Ross, Penosi took up “the problem” with the Gambino family, after which Frank Piccolo told his associates that he had taken care of “the problem” and claimed to have become a hidden partner in the Aladdin purchase: ross: Federal authorities say Newton is not telling the whole story, and that Newton is expected to be one of the first witnesses in the grand jury investigation. Newton became angry when we tried to talk to him about his relationship with Guido Penosi. Exactly a month later, on November 6, 1980, NBC aired a second Brian Ross segment on its Nightly News broadcast. Again, the program began with a narration about Frank Piccolo of the Gambino family, the target of an extensive FBI investigation. On that day Newton had flown to New Haven and had testified at a grand jury investigation. There he admitted that he had asked for some unspecified help from an old acquaintance who was apparently close to Piccolo but Newton said that he had no idea that either his old acquaintance or Piccolo were part of the Mafia family. The third related NBC news segment was aired on June 12, 1981. In it Ross reported that the grand jury indictment now had been 88

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unsealed. He said it indicated that the Mafia family tried to cash in on the vast wealth of singers Lola Falana and Wayne Newton, extorting them for some reason. The indictment pointed out that the “help” that Newton had asked for was for protection for his four-year-old daughter, whose safety had been threatened by unknown people. Newton had asked the police for assistance or protection but had failed to secure any help from them and, in desperation, had asked Penosi if he could help him somehow. Unbeknownst to Newton, Penosi, still a big fan, got Piccolo and his group to take care of “the problem” for him. The harassment of his daughter stopped. Ross ended this segment as follows: ross: Also charged today with extortion was, Guido “The Bull” Penosi, a convicted heroin dealer who was arrested by FBI agents at his home in Beverly Hills early this morning. Last September, under oath before the Nevada gaming board Wayne Newton said he had no relationship with the mob or Guido Penosi, and Newton told NBC News he didn’t know anyone named Frank Piccolo. But today’s indictment indicates that Newton told a much different story to the federal grand jury. Authorities say Wayne Newton became a victim of the mob scheme, and that Newton will be a key government witness against the two Mafia figures he once went to for help. These three news programs were the basis of Newton’s defamation suit against NBC. The complaint was that the network had willfully defrauded Newton by claiming that he had ties to organized crime. Newton’s attorney argued that NBC had erred by not interviewing Newton about its allegations. NBC’s lawyers countered that Brian Ross tried to interview Newton, referring to the ambush interview noted above, but that Newton was not cooperative. But the basis of the defamation was the language used on the three news segments. 89

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Discourse Framing: The Program’s Title To begin with, note that the title of the segment was “Wayne Newton and the Law.” Although this title does not speak ill of Newton, it associates him with an ongoing legal issue involving Mafia figures and such association can be damaging in itself. Visual framing While the news program anchor, John Chancellor, introduced the segment, the first images of this program show two equal-sized, boxed faces next to each other, Guido Penosi and Wayne Newton. They are framed together, as though they were equals in the information to follow. This visual frame leads listeners to associate Newton equally with Penosi and the Mafia enterprise.

Discourse Framing: The Text The topics of a communication are its core identity. Discourse analysts frequently trace the topic introductions throughout a communication in order to determine the agendas of the speakers. Program 1: October 6, 1980 A discourse analysis of the six topics introduced and partially developed in the October 6 program shows that the framing topics, the first two and the last one in this news segment, focus primarily on Penosi. Since the program segment is entitled “Wayne Newton and the Law,” it is noteworthy that the framing topics are about someone else. Following is a topic-by-topic summary of the program: Topic 1 (about Penosi, showing a stakeout in progress) begins with a visual of an FBI stakeout of Penosi, and notes that he was a

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New York hoodlum with a long criminal record and was believed to be the Gambino family’s man on the West Coast in narcotics and show business. Topic 2 (about Penosi’s Grand Jury investigation): “Penosi is the key figure in the investigation which also involves the Aladdin casino and Newton’s attempt to purchase it” (simultaneously we hear Newton singing a song, “I Think I’m Going Out of My Mind” in the background). Topic 3 (about Newton’s involvement): “Although Newton makes a quarter million dollars a week, authorities say he has financial problems. He bought the Aladdin for 85 million dollars. The grand jury is investigating the role of Penosi and the mob in ‘the Newton deal.’ ” Topic 4 (connecting Newton and Penosi): “Newton asked Penosi for help with a problem. Penosi took it to the Gambinos in New York. New York police say that the mob boss, Piccolo, said that he took care of Newton’s problem and became a hidden partner. Newton denies having a hidden partner. Newton says he knows Penosi as a fan and friend. At the state gaming board hearings Newton reported that he does not know that Penosi is a member of the Gambino family. When asked if he plans to continue his relationship with Penosi, Newton says he has no relationship with him to continue.” Topic 5 (Newton accused): “Federal authorities say that Newton is ‘not telling the whole story.’ He is expected to be the first witness in the grand jury investigation of Penosi. Newton got angry when we asked him questions.” (Clips of ambush interview are shown with Newton saying, “I really don’t care what you want.”) Topic 6 (Report of Ross’s interview with Penosi): “He (Penosi) told us he doesn’t know Newton. But the Feds say that eleven calls were made and that these calls and the relationship between Penosi and Newton are part of a year-long FBI investigation of the East Coast mob’s investment in narcotics and racketeering into the entertainment business.”

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The topic sequence here makes it clear that the program is largely about Penosi and the Mafia, with Newton’s alleged involvement sandwiched in between. Such framing suggests that the title of the program, “Wayne Newton and the Law,” is at best misleading, if not inaccurate.

Program 2: November 6, 1981 The discourse framing of the four topics on the November 6 news segment shows that the program’s focus on the Piccolo and Mafia continues: Topic 1 (about Piccolo): “He runs gambling and loan shark operations for the Gambino family. He is the target of an FBI investigation.” Topic 2 (about Newton’s arrival): “Newton arrived today in New Haven in his private jet to answer questions before the grand jury investigating Piccolo. The jury wants to know why Piccolo helped Newton and whether he had anything to do with the Aladdin hotel deal.” Topic 3 (about Newton’s testimony): “Newton says he asked help from a friend. He had no idea that the friend was close to Piccolo. He said he wouldn’t talk about what he told the grand jury but that he was cooperating.” Topic 4 (about singer Lola Falana): “She is also to be questioned. The feds believe she is a victim of the scheme to defraud her by Piccolo and her manager, Mark Marino. Marino is also to appear today in what is now a broad federal investigation of the Mafia in show business.” Although the program title, “Wayne Newton and the Law,” remains, the focus is on Piccolo and the grand jury investigation of the Mafia, to which Newton and Falana are merely witnesses.

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Program 3: June 12, 1981 The third news segment of this series, on June 12, 1981, contained six topics: Topic 1 (about the Mafia): “A federal grand jury indictment today says the Mafia tried to cash in on Falana and her enormous earning power.” Topic 2 (about the Mafia indictment): “The mob tried to move in on Falana and Newton. Newton asked two Mafia figures to use their power and influence in the underworld to call off threats and demands.” Topic 3 (about Newton’s and Falana’s alleged involvement with the mob): “The Newton involvement was uncovered by FBI agents who tapped the phones of Piccolo.” Topic 4 (about Piccolo): Reports that Piccolo was charged with extortion and that he said he agreed to take care of mob threats for a piece of Newton’s earnings and Falana’s insurance proceeds. Topic 5 (about Penosi): Reports that Penosi was charged with extortion and arrested. Topic 6 (about Newton): “Last September, under oath said he had no relationship with the mob or Penosi. He told NBC that he didn’t know Piccolo. But today’s indictment indicates that Newton told a different story to the grand jury. Authorities say Newton was a victim of a mob scheme. Newton will be a key witness against the two Mafia he once went to for help.” Although this program is clearly about the indictment of the two mob figures, it continues to be part three of the series called “Wayne Newton and the Law.” Here the extortion plots against Newton and Falana are mentioned in the last topic. Newton is still depicted as less than truthful about his “relationship” with the mob and is accused of allegedly telling a different story to the grand jury than the one he told to NBC.

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Newton’s lawyer argued that despite the fact that the discourse framing in these three programs focused primarily on the Mafia figures, Penosi and Piccolo, the continued framing title was about Wayne Newton, it cast doubt on his truthfulness, it suggested various types of collusion with the Mafia and, perhaps most irritating to NBC, it pointed out Newton’s unwillingness to submit to Brian Ross’s ambush interview in the parking lot. The program raised questions about Newton’s dire financial standing while at the same time curiously pointed out his use of a private jet and his earning a quarter million dollars a week. NBC had gotten wind of the FBI’s wiretaps, including the eleven calls between Penosi and Newton, thinking that these made Newton considerably more culpable than they turned out to be. Brian Ross was apparently intrigued by Piccolo’s statement that he had “taken care of ” Newton’s problem, and raised it to a level that was factually unjustified.

Malicious Language: Facts vs. Opinions The three news segments also used expressions that implied Newton’s association with the mob (emphasis added): Program 1: October 6, 1980 ross: “The investigation (of Penosi) involves the Aladdin and one of Las Vegas’s top performers, Wayne Newton.” ross: “The role of Guido Penosi and the mob in Newton’s deal for the Aladdin.” ross: “Newton is not telling the whole story.” ross: “Newton became angry when we tried to talk to him about his relationship with Guido Penosi.” 94

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Program 2: November 6, 1980 ross: “Piccolo has been the target of an extensive FBI investigation that has now led investigators from mob back rooms in Connecticut to Las Vegas and Hollywood.” ross: “Federal authority wants to know why Frank Piccolo became involved in solving problems Newton was having last year with a business deal and whether Piccolo had anything to do with the Aladdin Hotel deal.” ross: “Newton says he had no idea his friend was part of one of this country’s most powerful Mafia families.” ross: “ . . . what is now a broad federal investigation of the Mafia in show business.” Program 3: June 12, 1981 roger mudd: “Two cousins reportedly with mob connections . . . were arrested today on extortion charges. The alleged victims: show business.” ross: “Federal authorities say the mob tried to move in on Newton and Falana last year, when Newton asked two Mafia figures to use their power and influence in the underworld to call off threats and demands made against Newton by other mobsters from New York.” ross: “The mobs involvement with Wayne Newton and Lola Falana was uncovered in New Haven, Connecticut.” ross: “Last September, under oath before the Nevada gaming board Wayne Newton 95

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said he had no relationship with the mob or Guido Penosi and Newton told NBC News, he didn’t know anyone named Frank Piccolo. But today’s indictment indicates that Newton told a much different story to the federal grand jury.” These programs associate Newton with the mob figures directly and indirectly. The most obvious association was in the last program, where Ross reports: “The mob’s involvement with Wayne Newton . . . was uncovered. . . . ” Ross used no mitigating qualifiers here. He did not say “suspected involvement” or “alleged involvement.” Ross also used terms that suggest Newton associated with the mob, referring to the purchase of the Aladdin as a “deal,” rather than using the more neutral word, “transaction.” That the “problems” Newton was having were related to the threats on his four-year-old daughter’s life are not clarified. Ross refers to them as “financial problems” with a “business deal,” despite Newton’s grand jury testimony to the contrary. NBC even got the facts wrong about the help Newton asked for, claiming: “Newton asked two Mafia figures to use their influence in the underworld to call off threats and demands against Newton.” The phone records show that he asked for help from only one of them, his long-time fan, Guido Penosi, not Frank Picolo, the man who later tried to extort him. Finally, Ross continues to consider Newton untruthful. Ross reported that Newton was not telling “the whole story,” and that he must have told a “much different story” to the grand jury. Even though events showed that Newton and Falana were being extorted, Roger Mudd introduces them as “alleged” victims. It would appear that NBC simply did not want to let go of Ross’s anger about Newton’s unwillingness to be ambush-interviewed in the parking lot.

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7

Verbal Duels between Linguistic Experts in a Case Brought by an Ohio Supreme Court Justice against a Newspaper As more and more linguists are used in civil and criminal cases, fighting over the language evidence at trial sometimes turns into verbal duels between the experts. A significant part of the dispute in this case centered on the vast differences in the reports of the two opposing linguists. Opposing experts appear regularly in law cases concerning medicine, engineering, and other fields, but the phenomenon is

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still relatively new for linguists, largely because this expertise is still rather new to the courts; so it is still not that common, thus far at least, for linguists to be called by opposite sides of any type of lawsuit, including a defamation case. Linguistic experts can differ legitimately on many things, just like any other experts. The points of difference can be huge, as in the trademark case I reported in my book Linguistic Battles in Trademark Disputes (2002, 95–109). The opposing linguist in that case actually agreed with my conclusions but claimed that the field of linguistics could lead neither of us to such findings. This claim was based on differing views of how linguistics is defined. His view of the field championed the theory posited by Noam Chomsky, that each human has a genetically innate but culturally unique language organ that provides a system of grammar and knowledge patterns to the brain. This can be studied through cognitive physiology with cues obtained from the social environment. I had a different view of linguistics, holding that our field studies the actual speech as it occurs, independent of any genetic or physiology of the brain. The purpose of my counterpart’s testimony was simply to impeach my own. He offered no analysis of the language data in the case. Our dispute wasn’t about the language evidence in the case but rather about what linguistics is. I refer to this difference as “huge” because it was sufficient to cause the judge to be puzzled, if not confused, about my analysis of the language. I’ve faced other opposing linguists as well. In one case, the opposing linguist and I disagreed over the role of semiotics in linguistics. He claimed, and still does, that semiotics is an integral part of linguistics. I didn’t see it that way. In our verbal duel, the issue was not what linguistics is as much as what its legitimate components are. We both offered similar analyses, with a few important differences about what counted as data, but we were in agreement about most points, except for his belief that he could also, as a linguist, deal with such

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matters as colors and symbols. I felt that linguistics analysis should primarily stick to analysis of the language itself. To this day, I don’t know which of us made the better case about this. It’s unfortunate that sometimes lawyers call on experts who are not really contemporary linguists at all. Some are professors of English language history and philology. Occasionally they are composition instructors or bilingual education specialists. In the case described here, the opposing linguist was a professor of English who taught courses in computer analyses of literature, Asian literature, stylistics, and other subjects taken by literature majors. His graduate degrees were in English. He analyzed the documents for the plaintiff while I worked on behalf of the defendant. As usual in such cases, the report of the plaintiff ’s expert came first, followed by the defendant expert’s response. Frank Celebrezze, the chief justice of the Ohio Supreme Court, was defeated for reelection in 1986. During his campaign for reelection, The Cleveland Plain Dealer ran a series of eight articles and one editorial that Celebrezze felt contained false and defamatory statements about him and were the reason for his ultimate defeat in the November election. The first of these articles, which appeared on October 12, 1986, about a month before voting day, suggested to readers that Celebrezze had cast his judicial vote in two criminal cases in exchange for campaign contributions. These statements were republished in various articles and editorials in the same newspaper during the rest of that month. Celebrezze claimed that these publications resulted in irreparable damage to his political career, his status as a judicial officer, his social and professional status, and his reputation. He also believed that they led to his defeat for reelection. In addition to the articles, the Plain Dealer also printed a cartoon by Ray Osrin, showing Celebrezze’s empty courtroom bench with a sign hanging on the wall behind it saying, “Crime doesn’t pay. It makes campaign contributions.”

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Celebrezze charged that the articles and cartoon were false and defamatory and that they were published with reckless disregard about whether such materials were true or false. His claim for relief described the newspaper’s conduct as at all times actuated by malice, hatred, spite, contempt, and ill will toward him. Celebrezze requested a judgment of over four million dollars. Plaintiffs were first to bring a linguist into the case, hiring a member of a university English department to review the articles. His entire report is included below.

Plaintiff ’s Expert Linguist’s Report Shortly before the elections of Nov. 1986, between Oct. 12 and November 1, the Plain Dealer published about a dozen articles (including editorials) about Chief Justice Frank Celebrezze and donations to his 1986 re-election campaign from two labor unions alleged to have links with organized crime. Starting with the headline of the very first article of Oct. 12, the series made a deliberate and concerted effort to connect the two labor unions (Laborers’ Union Locals 310 and 860) with organized crime. The headline of this article of Oct. 12 is Officials detail mob-Laborers link and the headline of the Oct. 14 article is Mob-linked groups donate to chief justice. Since the size of the letters in these headlines is about half-inch to three-quarters of an inch, the average reader’s attention must have been drawn forcefully to the supposedly nefarious activities of the mob from which the chief justice allegedly profited in an important manner. The repeated use of the word, “mob,” in these articles is particularly noteworthy. Its slang meaning of “a gang of criminals,” specifically the Mafia, is so well-known, so wellestablished, that Webster’s New World Dictionary (the official

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dictionary of the New York Times, Los Angeles Times, and many other publications) lists the phrase “a gang of criminals” as one of the definitions of the term “mob.” Speaking in my official capacity as etymology and language consultant for this dictionary, I can assure you that this definition indicates quite correctly the meaning attributed to the word in such contexts by the reading public. It also indicates the negative conclusions that must have been drawn by the reading public from the very outset. Subsequent headlines also continue the same pattern of vilification of Frank Celebrezze through the use of language that attempts to link him with organized crime. On Oct. 15, an article written by Gary Webb and Mary Anne Sharkey appeared under the following headline: Chief Justice denies mob role in contributions. This headline is particularly significant in terms of the underlying presupposition. In linguistic analysis, a presupposition is a fact or belief that may not actually be stated in a given utterance but nonetheless is assumed to be a premise that helps to create the semantic foundation for the utterance. Thus if one were to say that in 1936 England had a new emperor, the presupposition underlying the statement would be that there was a previous emperor and that the throne had been left vacant in 1936 or shortly before 1936 as a result of death or abdication or some other cause. In relation to truth conditions, presuppostions are invisible but essential parts of actual utterances. In the Oct. 15 headline, when Gary Webb and Mary Anne Sharkey claimed that Frank Celebrezze was denying a mob role in his campaign financing the presupposition underlying the headline probably appeared to the reading public to be the notion that there indeed was a mob role but Frank Celebrezze was denying it. If the headline had read Chief Justice Says Accusation

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Concerning Mob Role are False then the presupposition would have been that someone had made such accusations, not that the mob role was a given fact. The reading public may not be conscious of such fine distinctions but nonetheless it reacts intuitively to such presuppositions and forms of negative opinions. It is well known to linguistic experts that many important aspects of our linguistic attitudes are created in this manner by unconscious reactions to subtle aspects of language. The headline of the Oct. 24 article by Gary Webb again hammered away at the alleged connection with organized crime: Mob-linked funds aid Democratic hopefuls. Such relentless repetition of accusations (involving, in this case, links with the Mafia or organized crime) is indeed a time-tested propaganda technique: repeat a charge over and over again in the popular press and sooner or later the public will believe it. What tends to be overlooked in such situations is that no concrete proof may have been offered by those making the accusations. I realize that headlines by themselves do not constitute articles, and that it is also true that Gary Webb and Mary Anne Sharkey may not have been the ones who made up the headlines, but the important point is that the reading public does not think about divided authorship while reading such articles. The average reader’s attention is drawn first by a dramatic headline and the article that follows in smaller print is viewed by the average reader as a continuation of the story that starts with the headline. Moving on from the headlines to the articles themselves, I am struck by the effective way in which innuendo is used to continue the vilification started in the headlines. In one of the opening paragraphs of the Oct. 14 article, for example, Gary Webb says:

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“In 1982 Celebrezze cast a tie-breaking vote against convicting Liberatore of arson. State records show that five days later, a Celebrezze campaign fund was given $5,000. . . .” Gary Webb does not actually say that the chief justice of the Supreme Court of Ohio took a bribe of $5,000, but that is exactly the conclusion that must have been drawn by typical readers. Juxtaposing the two claims (that the judge had cast a tie-breaking vote and received money five days later) creates the obvious innuendo that there is a cause and effect relationship between the vote cast and the money paid. The paragraph is loaded in the way a gun can be loaded in the hands of a sharpshooter. Gary Webb never gives the reader a chance to figure out that what he calls a “tie-breaking vote” actually involves a complex procedure for secret voting by judges of the supreme court and that there was no way he [Webb] could have known with absolute certainty whether or not Frank Celebrezze had indeed cast a tie-breaking vote in Liberatore’s favor. The word “lie” can be defined in a variety of ways. In the discipline of linguistics, we try to define the word in as broad and universal a manner as possible. We believe that communication is the main purpose underlying the use of language and that truth is that quality of language by which human beings inform each other. If in a given act of communication, the flow of truth is blocked and the blockage is not the result of an accident, then someone must be telling a lie. Gary Webb leads his readers to believe that it is a matter of unquestionable fact that Frank Celebrezze cast a tiebreaking vote, and his way of using language does block the flow of vital information to the reader. It does not seem to me that the blockage was the result of an accident.

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What is particularly disturbing is that the entire article functions in this manner by hinting at wrongdoing, without ever providing concrete proof of any wrongdoing. No one denies that if a chief justice were to accept bribes from organized crime a grave situation would arise. If such serious accusations are made or even hinted at, shouldn’t the accusers provide ironclad proof ? Does the acceptance of money from a source disliked by some groups qualify automatically as an immoral act? Are public figures who, of necessity, have to accept money from a variety of sources always able to check how clean every single donation is? In other words, a responsible journalist must, in a situation of this type, make it clear whether he or she is talking about actual wrongdoing or merely the impression of wrongdoing. Notice also how the paragraph that follows (the reference to the donation of $5,000) implies that Frank Celebrezze’s alleged intervention on Liberatore’s behalf had a history stretching back more than two years to the time when Libertore was freed from jail. Just over two years earlier, Celebrezze had freed Libertore from jail after two lower courts had ordered him imprisoned pending appeal of that arson conviction. Once again Gary Webb does not provide any proof that Frank Celebrezze violated the law. Many people are freed pending appeal, and decisions of lower courts are often reversed within the framework of the law. In Gary Webb’s article, the chief justice’s acts are not proved to be illegal, but by hinting at a possible connection between donations and intervention Gary Webb leads the average reader into believing that the chief justice was guilty of taking bribes. The overall context of the entire matter needs to be understood for the sake of objective evaluation. Frank

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Celebrezze, the chief justice of Ohio, who happened to be a Democrat, was involved in the mid-eighties in a serious power struggle with the Ohio State Bar Association, and in the election of Nov. 1986 the Plain Dealer backed the incumbent chief justice’s Republican opponent, Thomas Moyer, who did finally win the race, possibly because the Plain Dealer articles swayed enough votes away from Frank Celebrezze. The Plain Dealer was certainly within its rights in opposing Frank Celebrezze, but the question is whether or not it violated Frank Celebrezze’s basic human rights in a series of articles published before the election, from Oct. 12 to Nov. 1. In an editorial on Oct. 22, the Plain Dealer not only repeated numerous charges against Celebrezze but also printed alongside the editorial cartoon by Ray Osrin in which a sign is shown hanging above Celebrezze’s bench in the Ohio Supreme Court. The sign says: CRIME DOESN’T PAY. IT MAKES CAMPAIGN CONTRIBUTIONS. Once again we have adroit use of language (aided in this instance by powerful visual symbols such as a chief justice’s chair and gavel) that vilifies without providing proof. The old proverb, “Crime doesn’t pay” is given new life here by the process known as deidiomization. In its customary usage the saying is interpreted idiomatically to convey a sense of the ultimate failure of crime. Here the old saying is used in a clever manner to suggest that Chester Liberatore was a clever crook who did not make an old-fashioned criminal payment. Instead he bribed Frank Celebrezze in a sophisticated manner by donating money to his re-election campaign. Even though average readers may not see through this type of linguistic manipulation, they are affected by it, just as the human body is affected by a drug even though the aver-

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age person taking the drug may not know exactly how the drug works. I am convinced that the articles had an extremely injurious effect on Frank Celebrezze’s reputation because the majority of the readers must have formed an extremely distasteful view of his character. I am also convinced that the Plain Dealer and the writers and the cartoonist involved in producing the series must have been aware that many readers would form such negative views and would therefore be inclined to vote against Celebrezze. It is also equally clear that Frank Celebrezze realized that readers reacted in the negative manner indicated above. Consequently he must have felt deep personal humiliation over being defamed in this fashion. The knowledge of all those hundreds of thousands of readers holding the Plain Dealer in their hands, taking in all those defamatory words penned by Gary Webb, must have caused acute distress. In my work as a linguist and as a teacher of composition, I often undertake psycholinguistic analysis. Psycholinguistics is a discipline that explores the psychological aspects of linguistic behavior. It has been my privilege to work in this area not only with many graduate and undergraduate students but also with psychiatrists from Hanna Pavilion of University Hospitals. Several of my publications also have a strong psycholinguistic orientation. Basing myself on more than thirty years of experience in teaching English in the Cleveland area and on experience in analyzing psychological responses to language, I can say confidently that the language in the Plain Dealer series must have caused Frank Celebrezze and his family intense personal anguish. In conclusion, Frank Celebrezze has been victimized by the defamatory language in the Plain Dealer articles through

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the use of terms such as “mob-linked” designed to injure his reputation.

Defendant Expert’s Response My expert report for the defendants, roughly the same length, is summarized here. It pointed out (1) it is inappropriate for a linguistic expert to attribute the exact intentions of a writer; (2) it is inappropriate for a linguistic expert to attribute the exact understandings of the readers; (3) the expert linguist’s testimony is inappropriate when it reaches into areas that are outside the realm of linguistics; and (4) experts are required to represent their findings and facts in a coherent manner. Attribution of the Writer’s Intentions There is no way that a linguist can actually reach inside the mind of the writer to determine what that writer intended. The plaintiff ’s expert here does not subscribe to the boundary appropriate to the academic expertise of linguists. The following citations from his report illustrate:

“ . . . the series makes a deliberate and concerted effort to connect the two labor unions . . . with organized crime.”

“ . . . subsequent headlines also continue this same pattern of vilification.”

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“ . . . I am struck by the effective way in which innuendo is used to continue the vilification.”

“The paragraph is loaded in the way a gun can be loaded in the hands of a sharpshooter.”

“Gary Webb leads his readers to believe that . . . ”

“Gary Webb leads the average reader into believing that the Chief Justice was guilty of taking bribes.”

“Once again we have adroit use of language . . . that vilifies . . . ”

“Here the old saying is used in a clever manner to suggest that Chester Liberatore was a clever crook . . . (who) bribed Frank Celebrezze.”

“ . . . this type of linguistic vilification”

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“The Plain Dealer . . . must have been aware that many readers would form such negative views and would therefore be inclined to vote against Celebrezze.”

“ . . . Frank Celebrezze has been victimized by the defamatory language in the Plain Dealer articles through the use of verbal smears, innuendoes, manipulation of idiomatic usage and repeated use of terms such as ‘mob-linked’ designed to injure his reputation.”

In these cited passages, the plaintiff ’s expert claims to know the intention of the writers, noting that among other things they were deliberate, vilifying, manipulatory, that they consciously led readers to believe things, and that the writers were aware of the effects on their readers as they used words designed to injure the justice’s reputation. There is no way that linguistic analysis can prove such attributions of a person’s intention.

Attribution of the Reader’s Understandings The plaintiff ’s expert also claims to know what the readers of the Plain Dealer articles understood when and if they read them. The following citations from the report illustrate:

“ . . . the average reader’s attention must have been drawn forcefully to the supposed nefarious activities . . . ”

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“ . . . the headline probably appeared to the reading public to be the notion that there indeed was a mob role . . . ”

“ . . . that is exactly the conclusion that must have been drawn by typical readers.”

“Even though the average reader may not see through this type of linguistic manipulation, they are affected by it . . . ”

“ . . . the majority of the readers must have formed an extremely distasteful view of his character.”

“The Plain Dealer . . . must have been aware that many readers would form such negative views and would therefore be inclined to vote against Celebrezze.”

“It is equally clear that Frank Celebrezze realized that readers reacted in the negative manner indicated above. Consequently he must have felt deep personal humiliation over being defamed in this fashion.”

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“ . . . the language in the Plain Dealer series must have caused Frank Celebrezze and his family intense personal anguish.”

The plaintiff ’s expert’s use of expressions such as “must have,” “they are affected,” and “readers would” attribute results or behaviors that linguistic analysis simply cannot provide. Such comments may well be the expert’s personal opinions but they are presented here as though they were the product of linguistic science.

Testimony beyond the expertise of the expert The plaintiff ’s expert claims to have expertise in psycholinguistics, although there was little or nothing in his academic background to indicate this. If he really were an expert in psycholinguistics, he would be expected to base his conclusions on knowledge of such work by other psycholinguists or from his own empirical psycholinguistic research on the writers, their articles, the readers, Justice Celebrezze, and his family. This expert reported none of these. As noted above, he simply used words such as “must have” and “would have” or that he knew that the effects he described actually took place. If he had some research based on the effects of these articles on the chief justice or his family, he might have something useful to say to the court about what this research could conclude, how these people were affected, what views they formed, and whether they felt defamed. If he had told us something useful about readers of the newspaper articles other that that they were “average readers,” we might also have learned something. Since the expert’s opinions were not grounded in past or current research, and did not grow out of his academic expertise, they can only be considered his personal interpretations. In one sense, they are the expert’s opinions, but they are

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not opinions grounded in past or current research findings, or on any type of linguistic analysis. A more serious problem, perhaps, is that unless experts in linguistics have training in psychology and cognitive science, they are not qualified to comment on these areas. Nor are they qualified to discuss what is appropriate in the fields of journalism and general ethics. Virtually anyone can have commonsense opinions in such matters, but not ones that qualify them as experts. Plaintiff ’s expert enters into these fields when he comments that a journalist should provide “ironclad proof ” of wrongdoing. For all a layman may know, journalism may not have a policy requiring this. It may be that the journalist’s task is to provide verifiable facts, while it may be law enforcement’s job to provide accusations, and it may be the Court’s job to administer justice. Plaintiff ’s expert opines: “a responsible journalist must, in a situation of this type, make it clear whether he or she is talking about actual wrongdoing or the impression of wrongdoing.” Such an opinion is perfectly appropriate for the expert to make as a layman but inappropriate to make in the role of an expert linguist, for linguistics has nothing useful to say about the function of appropriateness in journalistic practice or policy. Plaintiff ’s expert also offers opinions about ethics, as the following citation from his report indicates: “Does the acceptance of money from a source disliked by some groups qualify automatically as an immoral act? Are public figures who, of necessity, have to accept money from a variety of sources always able to check how clear every single donation is?” These are rhetorical question and, as such, assume their answers without giving them. Such rhetorical questions are more appropriate, perhaps, in a letter to the editor than in what purports to be the expert analysis of a linguist. Anyone can have an opinion on this topic, but the weight of linguistic analysis and expertise is simply not there.

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A coherent representation of the facts Communication requires a coherent narrative structure. Facts should be presented in an orderly and coherent manner, and most often that orderliness and coherence is provided by chronology, at least in Western societies. One thing happens in time before another thing happens. Plaintiff ’s expert describes the Plain Dealer’s “juxtaposing” of two claims: (1) “Celebrezze cast a tie-breaking vote against convicting Libertore of arson” and (2) “State records show that five days later, a Celebrezze campaign fund was given $5,000.” Plaintiff ’s expert describes this “juxtaposing” as an “obvious innuendo that there is a cause and effect relationship between the vote cast and the money paid.” He further analogizes this narrative sequence to a loaded gun “in the hands of a sharpshooter.” If the sequence of these events, (1) and (2) above, were reported erroneously, say (2) then (1), plaintiff ’s expert may have a point. But if these two events did indeed occur in the time sequence reported by the Plain Dealer, then plaintiff has no justifiable linguistic complaint. Narrative structure, as any discourse analyst knows, best proceeds in an orderly and coherent manner, usually by chronological sequence. Plaintiff ’s expert also claims that (1) and (2) above are juxtaposed in a way that produces an obvious innuendo harmful to Celebrezze. Common definitions of “juxtapose” do not suggest negative connotation. Such definitions indicate simply the placement of items or ideas close together or side by side for the purpose of comparison or contrast. Nothing is said about them being reversed or placed out of sequence. Placing two events next to each other, especially in accurate chronological order, cannot be criticized and it hardly qualifies as innuendo. Some blind alleys for linguistic experts Linguists called on to be experts in defamation cases might benefit from some of the facts revealed in this case. As stated above, the

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expert linguist obviously should not claim to know what the writers’ intentions were or what the readers comprehended. And it is equally obvious that experts should not offer opinions that take them beyond their own area of expertise. Unlike the plaintiff ’s expert here, linguistic experts should also have semantic control of the terms they use. But there are also other lessons to be learned from this case. The following are some of the blind alleys that linguists may be less likely to have thought much about:

Linguists can’t always know what is true or false in a given case This was a case in which the “actual malice doctrine,” originating with the Sullivan decision, was in effect. Plaintiffs had to prove that the Plain Dealer knew or should have known that what it reported was false. Defendant’s attorney argued this point, showing that the allegations of false reporting were disproved by writer Gary Webb’s meticulous fact-checking. Webb’s information came from written reports published by the Organized Crime Strike Force units in the U.S. Department of Justice, the U.S. Senate’s Permanent Subcommittee on Investigations Report, testimony from the Labor Department’s organized crime office in Cleveland, and the President’s Commission on Organized Crime. It is difficult to consider the use of such information as “reckless abandon.” The following summarizes the other major bases for defamation— wide publication, opinions versus fact, and ultimate harm to the plaintiff. Certainly the alleged defamatory information was published to a wide audience, but if it could not be proved to be false and reckless, this prong of defamation law has no salience. The issue of fact versus opinion played no role in this case, since the Plain Dealer never argued that the articles contained opinions rather than facts. Finally, it is quite possible that the articles helped lead to Justice Celebrezze’s defeat for reelection. Again, however, unless the article’s statements could be proven false and

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reckless, there is no salience to this point either. Everything, therefore, depended on whether or not the reportage was true or false, something that usually falls outside the competence of a linguistic expert to demonstrate.

Innuendo is a dangerous feature for the plaintiff to work with Plaintiff ’s use of a linguistic expert included an attempt to show that use of innuendo in the Plain Dealer articles was a primary weapon of defamation. In its complaint, plaintiff claimed the articles accuse Celebrezze of “casting his vote in two criminal cases in exchange for campaign contributions.” First of all, there is no such accusation in the articles, which present the facts about the relationship between the plaintiff and the local unions and the fact that the unions were contributing to Celebrezze’s election campaign, which public records verified. The Plain Dealer claimed that readers could draw whatever conclusions, if any, that these facts may suggest to them. An innuendo is an implied message in the form of an allegation whose content constitutes some sort of unwanted ascription toward the target of the comment (Fraser 2001, 206). Its meaning is closely associated with “insinuation” and “rumor.” Plaintiff ’s expert says that innuendo was used in the Plain Dealer articles but he does not cite any convincing specific instances. But even if plaintiff ’s expert had found and cited specific instances of innuendo, case law has shown that a public official cannot claim that an alleged negative innuendo is proof of actual malice. In a similar case the Courts ruled: “There can be no libel by innuendo if the challenged communication is true and concerns public officers and public affairs even though a false implication may reasonably be drawn by the public” (Strada v. Connecticut Newspapers, Inc., 477 A.2d at 1012). Whatever innuendo may have resulted from facts

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that were substantially true was irrelevant; a public official may not base a claim of actual malice on claimed innuendo. The lesson here is that expert linguists might do well to avoid calling on the use of innuendo in defamation cases unless the facts are in error and actual malice is a viable issue. In all fairness to the plaintiff ’s expert linguist, he probably couldn’t have known whether these facts were true or false. But he certainly should have cited specific examples to prove what he considered innuendo. That the plaintiff ’s lawyers permitted their expert to pursue the innuendo theme may be evidence that they really didn’t feel they had a strong case in the first place.

Headlines can be tricky for the plaintiff to analyze Another lesson learned relates to the plaintiff expert’s discourse on the headlines of the articles. The courts do not require legal precision from newspaper headline writers when the story as a whole is substantially accurate (Contemporary Mission v. New York Times, 842 F.2d 612, 625, 2d Cir. 1988). Based on this and other similar rulings, it would be prudent for expert linguists to be very cautious about depending on headlines in their analyses. Ambiguous statements can backfire for the plaintiff To be defamatory, a statement must be not only false, but must also hold the plaintiff up to ridicule, contempt, scorn, humiliation or disgrace. Some states, such as Ohio, have an “innocent construction rule,” requiring the courts to give allegedly defamatory statements an innocent meaning whenever they are reasonably capable of an innocent meaning. If a statement is susceptible to two meanings, one allegedly defamatory and one benign, the defamatory meaning should be rejected and the benign meaning adopted. This principle is similar

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to one used in cases where more than one meaning is attributable to a sentence or expression in, for example, insurance policies or other types of contracts. When such ambiguous meanings can be shown to occur, the ruling is normally against the interpretation of that ambiguity supported by the writer of the policy or contract. Experts need to be prudent in their use of the ambiguity argument in defamation cases.

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PART III

Defamation Disputes in the Field of Medicine Doctors, lawyers, and other professionals are not immune to charges of defamation. The following cases show how professional anger can lead straight to the courtroom. Chapter 8 deals with the culmination of an ongoing feud between Tennessee optometrists and ophthalmologists. Chapter 9 describes the results of a long-simmering battle between Georgia otolaryngologists and plastic surgeons. In both cases, the allegedly offensive language was found in the professional journals of their organizations.

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8

Optometrists vs. Ophthalmologists Turf battles are common in the world of medical practice. Exactly who can do which procedures and how such work is authorized framed the battle between Tennessee optometrists (specialists in examining the eyes for defects and faults of refraction and prescribing correctional lenses or exercises) and the state’s ophthalmologists (physicians who specialize in that branch of medical science dealing with the structure, functions, and diseases of the eye). The argument began in 1980, when optometrists requested legislation that would permit them to dispense therapeutic drugs. Initially, this effort was blocked by the ophthalmologists. After that, the battle began in earnest. At an annual meeting of the Tennessee Academy of Ophthalmologists (TAO) in Atlanta, one of the invited speakers was Dr. Samuel Wallace, a sociologist at the University of North Carolina, who reported on studies of the practice of optometry that he had carried out in other states. The TAO leaders liked his speech and soon thereafter funded Dr. Wallace to conduct a similar study in Tennessee. 121

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Subsequently, in late 1981, he carried out a three-month study of optometry in Tennessee, and the results were distributed widely. Up to that time the state legislature had managed to block the efforts of optometrists to gain the right to prescribe therapeutic drugs for their patients, but now the optometrists had revived the bill, causing considerable heat on both sides. Disappointed about their earlier setback and fueled by Dr. Wallace’s report, the optometrists filed a defamation suit against TAO in 1982, charging libel, business interference, and interference with existing contracts. In 1984, the ophthalmologists requested a summary judgment, which resulted in the judge’s removal of only the complaint concerning interference with existing contracts. In the autumn of 1986, TAO filed another request for summary judgment on the remaining two parts of the suit: libel and business interference. The judge denied their request for summary judgment and scheduled the case for trial in 1987. By this time, there was even more animosity between ophthalmologists and optometrists in that state. This case provides a classic example of the problem that Tiersma discussed in his Texas Law Review article (Tiersma 1987, 303–350). The ophthalmologists’ defense supported the traditional view of defamation, one that puts its focus on the effect of the speaker or writer’s utterance on the listeners or readers, the perlocutionary effect. In short, they denied that readers could conclude from Dr. Wallace’s report that optometrists were defamed. Tiersma’s point was that it would be prudent instead to focus on the language used by the speaker or writer—on how that language can provide clues about what that speaker or writer may have intended to mean, the illocutionary force. Often overlooked by attorneys is the fact that communication is made up of a sender, a message, and a receiver. By looking only at the receiver’s perspective, a great deal can be missed. I was asked by the plaintiff ’s lawyers to focus on the language of the

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sender, the research report written by Dr. Samuel Wallace, along with depositions that had been taken to that point. There may or may not have been surveys of reader impressions in this case, but that was not my task. The Southern College of Optometry (SCO), in Memphis Tennessee, is a nonprofit, accredited educational institution incorporated under the laws of the state of Tennessee. Its purpose is to educate men and women in the art and science of optometry. Its graduates receive an O.D. degree, Doctor of Optometry. After receiving this degree, they may proceed to meet the licensing requirements in order to practice optometry in various states. The SCO reports that most of its graduates proceed to meet these requirements. The Tennessee Academy of Ophthalmology (TAO) and the named individual defendants in this case circulated Dr. Wallace’s paper describing his research on the status of optometry in Tennessee to optometrists, to ophthalmologists, and to others. The Southern College of Optometry alleged that this report included defamatory statements that they considered libelous. The basic substance of Wallace’s report is contained in the following excerpts:

“Virtually all Tennessee optometrists graduated from Southern College of Optometry, and more than 37 percent [which the report says is a probable underestimate] practice optometry today at an unacceptable or unethical level.”

“There is an oversupply of optometrists in Tennessee and the College has deliberately produced this oversupply and the

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resulting unethical practice of the optometry profession in this state. Furthermore, Southern College of Optometry recognized the oversupply of optometrists in Tennessee and recognized that such oversupply and the high cost of practicing optometry causes the ethical practice of optometry to be abandoned and, notwithstanding the latter, acted unethically and against the public health and welfare by deliberately lowering its admission requirements and by continuing to produce an excess of optometrists in Tennessee.”

In this report, Dr. Wallace stresses the oversupply of optometrists in Tennessee and claims that this oversupply has led to unethical practices that he says he had found. He holds SCO responsible for this oversupply because allegedly it had lowered its admission standards in an unethical manner, producing this oversupply. Dr. Wallace repeated this charge throughout the paper, as the following excerpted topics indicate:

Discourse Topic: The Lowered Standards and Oversupply of Optometrists “From 1970 to 1981 the number of Tennessee optometrists increased 36% (from 340 to 474)—private practitioners only. Gains in optometric manpower outstripped population increases more than twofold. . . . The number of vacancies in appointment schedules is conservatively estimated at 7,000, which reflect an over-supply of 140 optometrists in Tennessee.”

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“The Southern College of Optometry appears to have lowered its admission requirements somewhat in an effort to maintain its size. . . . Until the fundamental problem of the excess of optometrists is dealt with, optometry must continue to try to expand faster than optometry schools can produce yet still more optometrists.”

“Older optometrists are likewise prevented from modernizing their equipment simply because they do not have enough patients to pay the bills.”

“The Southern College appears to have lowered its admission requirements somewhat in an effort to maintain its size.”

“The incomes of Tennessee optometrists were favorable in 1970 when judged from the perspective of 1981. Twelve years ago, few optometrists declared bankruptcy: the vast majority earned income exceeding $15,000; and the most successful practitioners earned sums in excess of $100,000. In 1970, the Southern College of Optometry began an expansion program . . . One result of the expansion program and the concurrent tripling of graduates per year was an increase in optometrists in Tennessee, by a net gain of 36% (from 340 to 474).”

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“[The] Southern College of Optometry (1980) uses the latter figure (one optometrist per every 7,000 persons) to justify what it projects to be a current shortage of optometrists. Claims of optometrists, whether they argue for optimum ratio of 1:9,000, 1:7,000, or any other figure, are so obviously self-serving that they must be taken with more than the proverbial grain of salt.”

“Another indication of the oversupply of optometrists is the number of patients seen for routine exams who drop in to offices without an appointment (about 20%). The oversupply is also evident in the distribution of optometrists.”

“We conservatively estimate 7,000 vacancies weekly in appointment schedules of Tennessee optometrists. If an optometrist can see ten patients daily or 50 per week, this would mean an oversupply of 140 optometrists in Tennessee.”

Discourse Topic: Unethical Practice On the topic of unethical practice, Dr. Wallace’s report had the following to say:

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“Thirteen percent (of Tennessee optometrists) performed at an acceptable level, and 24% unethically. In other words, slightly more than one-third (37%) significantly depart from ethical standards in optometry.”

“After the would-be optometrist has made an investment of $150,000 and is unable to bring enough patients into his office to pay off his debts and earn something to live on, what can he do? First, he can reduce capital outlay in not purchasing the equipment he must have to practice ethically.”

“Beyond the failure of optometrists to police each other are the economic constraints that mitigate against ethical practice. To secure the education now necessary to become an optometrist costs $56,000 at the Southern College of Optometry. To equip and open an office of optometry today requires the additional investment of between $75,000 and $100,000; to maintain that optometric office costs at least another $25,000 every year. After the would-be optometrist has made an investment of $150,000 and is unable to bring enough patients into his office to pay off his debts and earn something to live on, what can he do? First, he can reduce his capital outlay in not purchasing the equipment he must have to practice ethically.”

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“The ethical practice of optometry requires the annual expenditure, after amortization of initial capital outlay, of something in the neighborhood of $25,000. And this sum must be spent before any income is earned. When optometrists are unable to do this, as many are not in the State of Tennessee, ethical practice is soon abandoned . . . As the quality of optometric practice goes down, the sale of eyewear goes up—let no one leave the office without buying something.”

Discourse Topic: SCO Is Expanding the Practice of Optometry in Tennessee The report went on to describe the way optometrists were expanding their practices: “Although the leaders in optometry are unlikely to thank this researcher for bringing these facts to light about Tennessee optometry, they are aware of these economic pressures and the problems of practice they produce. Their solution, however, has been to try to expand the practices of optometry.” Building on the Southern College of Optometry’s alleged recklessness in lowering standards of admission that created the oversupply of Tennessee optometrists and accusing both the college and Tennessee optometrists of unethical behavior and practices, Dr. Wallace concludes his report as follows: “If optometrists are granted the right to treat diseases of the eye, into what area will they wish to expand next? Students now enrolled at Southern College are learning how to give pelvic examinations, how to take blood pressure, analyze

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urine, and scan brain waves. Given enough expansion, before long optometrists will not even need to practice optometry.” SCO claimed that these statements are not only defamatory but also unequivocally false, incorrect, and untrue, that they constitute a malicious and vicious attack against the moral integrity and reputation of the Southern College of Optometry, and the statements were published knowing that they were false. Defendants Tennessee Academy of Ophthalmology and the others named in the lawsuit also caused the adoption of a resolution recommending that Tennessee ophthalmologists no longer teach courses at the Southern College of Optometry: WHEREAS, representatives of the school of optometry are teaching courses in pharmacology and medical therapy of the eye which are beyond the legitimate scope of optometric practice contrary to part 3 of Resolution 107, BE IT RESOLVED, that the Tennessee Academy of Ophthalmology recommends to its members that such members refrain from teaching in the school of optometry while such violations of Resolution 107 continue. The American Medical Association resolution referred to here is Resolution 107, as follows: The full benefit of medical progress and existing opportunities for the prevention of blindness can be realized if there is no avoidable delay between the onset of abnormalities or other symptoms and the provisions of medical care by qualified physicians. The improvement of educational standards of optometry is a laudable objective. Doctors of medicine

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may as teachers participate in the education of optometrists within the legitimate scope of optometric practice. Here the Southern College of Optometry charged the TAO with malicious interference because the TAO resolution unlawfully interfered with the business efforts of SCO to provide whatever additional training and instruction it needed for its students, seriously affecting its life and viability as an optometric educational institution. Specifically, the complaint charged that TAO interfered with SCO’s ability by: (1) (2)

(3)

(4) (5)

(6)

inducing medical doctors and doctors of pharmacology to stop teaching at SCO, interfering with SCO’s externship program that placed third- and fourth-year optometric students in clinical training positions, interfering with the operation clinics in the Memphis area where third- and fourth-year students were enrolled at SCO to receive clinical training, delaying SCO from receiving a bequest of $250,000 from the downtown Memphis Lion’s Club, interfering with implementation of SCO’s proposed merger with a branch of the University of Tennessee, and interfering with SCO’s ability to obtain educational training by ophthalmologists and other doctors concerning treatment provided by patients who were referred to them by SCO.

Based on the above belief that the Southern College of Optometry had been maliciously defamed by Dr. Wallace’s report that was published widely by the Tennessee Academy of Ophthalmology, attorneys for SCO requested that I undertake a linguistic analysis of that

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report and offer my expert advice as a researcher about the quality of the research report itself, including whether or not it constituted Dr. Wallace’s opinions rather than facts. These tasks blended into each other, since separating the structure of a research report from the way it is written is difficult, if not impossible. I found that the structure and style of Dr. Wallace’s research report evidenced unacceptable academic research strategies and procedures. I also found that the linguistic features of the report gave evidence of malice, including the author’s scathing references to the optometry profession and to his use of sarcastic mocking, pejorative words, and rhetorical questions, which indicate a heightened emotional state of mind that accompanies intended malice and which is also inappropriate in a purportedly objective research report.

The Quality of the Research and Report The type of research that Dr. Wallace performed is commonly referred to as survey research, which normally begins by stating the objectives of the study. Dr. Wallace stated his research objective at the beginning of his report: “Research Objective: Should optometrists be granted the legal right to use therapeutic drugs in Tennessee? Why or why not? What would be the consequences of such an expansion in the scope of practice of optometry in Tennessee? These are the basic questions examined in this research report.” At about this time, the Tennessee state legislature was once again considering a bill that would grant optometrists the right to prescribe therapeutic drugs and the TAO commissioned Dr. Wallace to study

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the practice of optometry in Tennessee, hoping that his report would support its opposition to this bill. Throughout his report, Dr. Wallace pointed out the alleged oversupply of optometrists in Tennessee, leading to his conclusion that such an oversupply produces unethical practices. The issue before the state legislators, the right to prescribe drugs, was absent from Dr. Wallace’s brief introduction from its first mention on page 1 until the bottom of the second-to-last page, page 19. My analysis compared the seven generally recognized accepted steps in a research survey with Dr. Wallace’s procedure: Step 1. Define the universe studied. All members of the population are enumerated and identified, after which a random sample is taken. Dr. Wallace’s report does not discuss the steps used in defining the universe from which he derived his sample. Standard practice in survey research is first to define the population of the universe studied. Dr. Wallace purports to deal with the practice of optometry in Tennessee but his report excludes optometrists who are currently not in practice or who are practicing in some other state. He does not specify what he means by “the practice of optometry,” leaving unclear whether his unit of analysis is the individual optometrist or an optometry business containing one or more optometrists. Because his research objective is to compare what would change if certain events were to occur, he compares his universe of current optometrists with what they would do if circumstances change. Since it’s difficult to sample something that has not yet occurred, researchers normally use comparison or control groups. Instead, Dr. Wallace was commissioned to compare current ophthalmologists with current optometrists, quite a different matter. Even then, he did not include this comparison in his report. Step 2. Prepare a questionnaire to measure the scope and practice of the population, using unbiased and unambiguous questions.

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Dr. Wallace provides generalized answers to questions but he does not show in a systematic and consistent manner how the questions were answered by all respondents. Virtually all of his questions are short phrases rather than questions, violating a basic principle in social science research. Nor is there any evidence that his questions were pre-tested. Many of his briefly phrased questions are ambiguous or vague, rendering his study invalid for this alone. Step 3. A statistically valid sample is identified and drawn. The sample should be large enough to ensure precise and accurate measurement of the population characteristics. Dr. Wallace’s sample size of 50 subjects is too small to justify his conclusions, since a complete response rate would produce an error variance of plus or minus 14 percent. When incomplete questionnaires and non-responses are accounted for, the error rate grows even higher. Moreover, Dr. Wallace provides no evidence showing how his sample was drawn. In fact, the report shows that some respondents were not even optometrists, but rather served as receptionists in an optometric office. Step 4. Interviewers are selected and trained to administer the interview in a standard format to insure interrater reliability. Dr. Wallace admitted in his deposition that he and his other interviewers did not ask the questions in the same order or even using the same words. In addition, some of the interviews were conducted surreptitiously, when the interviewer pretended to be a customer getting an eye examination. When interviewers were unable to schedule appointments, a telephone interview was substituted for the standard data-gathering approach. In addition, standard survey research methods specify that the director not be involved in conducting interviews,

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a practice that Dr. Wallace violated, having conducted many of the interviews himself. Step 5. Interviewers and interviewees should be blinded to the nature of the survey in order to avoid biases such as trying to anticipate the desired responses. In their depositions, Dr. Wallace and his interviewers admitted that they knew in advance what the objectives of the interviews were. In addition, the report admits that TAO’s president “provided advice and consultation during the progress of this research.” Dr. Wallace testified that he submitted a draft of his report to the board of TAO (also in evidence), and the board made a number of suggestions to improve it. Step 6. Responses to questions should be quickly recorded then translated to computer readable form with care and accuracy. Evidence from depositions shows that this was not done here. Step 7. The analysis should be complete and holistic. Conclusions should follow from the research results. It should be possible to replicate the study to test its validity. In many instances, Dr. Wallace’s report did not provide enough information to permit a replication of his study. Generalizations are supposed to grow directly out of the survey findings. Dr. Wallace generalizes that the number of 340 optometrists in Tennessee in 1970 and spread throughout the state was a clear indication that “Tennesseans had the services of an optometrist within easy reach of their homes.” No evidence is given to support this generalization. In several parts of the report, Dr. Wallace mentions that certain subjects refused to be interviewed. He provided no explanation for the reasons why they refused or whether such refusals might have

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been made for reasons such as lack of time, illness, or simply disinterest. Dr. Wallace suggests that the number of optometrists in a given area accounts for why there is an oversupply, but he offers no explanation for this generalization. He cites the number of patients who drop in without an appointment but does not mention the differences in culture or geography that might make such practice common in Tennessee. Frequently, only vague quantifiers such as “some patients,” and “many optometrists,” are the only quantifiers used. No errors should appear in the reports of survey research, yet Dr. Wallace’s report contains many errors of various types, including the wrong dates of publications cited in his bibliography, conflicting numbers of his reported interviews (33) and undercover eye examinations (13), when his own charts reveal the numbers to be 31 and 14, respectively. His report says that 15 of 44 optometrists practice “unethically” because they fail to give external eye examinations, while data from his own charts reveal that 12, not 15, of those he contacted allegedly practiced in that way.

Linguistic Features in the Report Language contains a large number of alternative ways of expressing ideas. Some are dull and prosaic; others are exciting. Carefully selected words, figures of speech, sarcastic quotation marks, exaggerations, overgeneralizations, vagueness and ambiguity, and rhetorical questions can be used to persuade rather than to report objectively and neutrally. Word meanings that constitute only one end of a semantic continuum do not meet the requirements of objective research report writing. As extremes, these writing features and can make for more interesting reading and are likely to be better remembered, two reasons why persuasive writers use them effectively. Research report writing, by definition, is not persuasive

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writing. It is neutral and objective, normally not taking advantage of the stylistic techniques that can help persuade an audience to take a position. The following are some examples of the persuasive writing techniques used by Dr. Wallace in his research report: The Use of Malicious Language: Pejorative Terms Pejorative terms are at the negative end of a semantic continuum among the choices available to a writer to describe a specific concept or event. Each end of the continuum, positive to negative, varies from its middle or more connotatively neutral designation. For example, a dress is a relatively neutral term for a woman’s garment, but calling it a gown or an ensemble upgrades it considerably and calling it a get-up downgrades it. Pejorative terms carry the negative connotations, even denotations in some cases, for their referents. The more a term occurs at the positive or negative end of a continuum, the more emotional force it can bring with it. Since readers tend to remember polarity terms more than neutral ones, writers often chose such terms deliberately, in order to create a desired emotional effect on their readers. Examples of pejoration in Dr. Wallace’s research report include the following (emphasis added): “use drugs,” “use of drugs,” and “drug use” The very first sentence of Dr. Wallace’s report says: “Should optometrists be granted the legal right to use drugs in Tennessee?” This is repeated on page 19: “The next issue in Tennessee was optometrists’ use of diagnostic drugs.” The last page the report says, “And if the use of these drugs is as unregulated as the current practice of traditional optometry appears to be, the public interest will be harmed as well.” One would expect a professional researcher to recognize and avoid the unfairness of the way these expressions were worded. The issue was not about optometrists “using” drugs, but rather about allowing them to prescribe drugs to their patients. If these pejorative references to Tennessee optometric practice were too subtle for readers, the following were even clearer.

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“refused to cooperate,” “refused to answer” The report begins: “In some instances, we had our eyes examined as a means of securing data about some practitioners because they had refused to cooperate in an interview.” A few pages later: “ . . . some optometrists “refused to supply this information” and “some optometrists refused to answer.” One could expect a research report to explain absence of data in a more neutral fashion. We are not told why respondents “refused” to answer and Dr. Wallace offers no reasons here, leading readers to believe that the respondents were obstinate or even belligerent. Stating it in this way is more common in newspaper articles as a way of putting the onus on the respondent rather than on the failure of the questioner to elicit the information desired. And, as noted earlier, we might also expect a research report to give actual numbers rather than the “some instances” used here. “virtually all of them sell eyeglasses in their offices” This statement of fact, quantitatively unspecified, pejoratively implies that if optometrists sell eyeglasses in their offices, they are somehow unethical. It is common for optometrists to sell eyeglasses and it is not accurate to imply that doing so is negative.

Sarcasm There are many possible ways to use quotation marks. One is to quote something that was said. Another is to use a word that one is not sure about, sometimes called “the apologetic quote.” Still another use implies that something is wrong with the passage quoted. In his book The Linguistics of Punctuation, Nunberg (1990, 116) says, “ . . . quotations function essentially to mark a text-expression that is to be construed as having been produced in circumstances that differ from those of the surrounding text . . . in a context that that departs from the presumptive context of production.” He categorizes quotations as

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“distinguishers that set off text from its surrounding text in virtue of some distinctive properties of its inscription” (52). They are also tone indicators. Dr. Wallace uses quotations for some reason in his report, often not to report what someone has said previously, probably not apologetically, and clearly not to indicate something wrong with what was said before. Yet the quoted words have some reason for their existence in this context. The most likely reason here is to convey sarcasm. The following are examples of how the report used quotation marks to convey sarcasm: “Claims by optometrists . . . are so obviously self-serving that they must be taken with more than the proverbial ‘grain of salt.’ ” This double whammy of the adage with the quotation marks around it conveys sarcasm. In addition, the use of “self-serving” is an obvious value judgment, indicating motive or intention of the optometrists, and again is inappropriate in an objective research report. “The distribution of optometrists into every ‘nook and cranny’ of Tennessee indicates the lengths that beginning optometrists must go to open a practice . . . ” Dr. Wallace observed throughout his report that optometrists were spread all over the state. Now he turns the volume up, using “nook and cranny,” sarcastically, suggesting that optometrists pursue patients in every Podunk village in the state. “ . . . the so called ‘freedom of choice’ legislation” Near the end of his report, Dr. Wallace finally gets around to the pending legislation introduced in the first paragraph but not mentioned

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again until the end, observing that the effort to permit optometrists to prescribe drugs began in the 1970s, which opened the so-called “freedom of choice ”legislation. By placing “freedom of choice” in quotations the writer indicates sarcastic disagreement with the legislation desired by the optometrists. “would-be optometrist” There are many ways available for the report to refer to optometrists who are still in training. Since the topic was the training of optometrists, in his deposition Dr. Wallace argued that in his report, “would-be” (in quotes) was meant to indicate the status of those still in training. Most dictionaries list two meanings for “would be”: desirous of and pretending. In light of the context of this report, the reader is more likely to understand the negative end of the semantic choices here, “pretending.” It is noteworthy that medical doctors in training are not normally referred to as “would be” doctors, a fact which was not denied by the defendants during their depositions. “most pitiful cases” The quotes indicate that this is an emotionally charged expression. To avoid sounding emotionally charged, an objective research reporter would use more neutral terms such as “difficult,” “problematic,” or some other term not found at the negative polarity of the semantic continuum of this concept. “impoverished retirement” Near the end of his report Dr. Wallace tries to make the case that since there are, according to his study, more optometrists than the market needs, many are sure to face financial difficulty. “Impoverished” (in quotes), like many of the other alternatives selected by the writer, falls at or near the most negative end of the semantic continuum of

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this concept. It carries far more negative connotation than, for example, a retirement “drained of resources,” “with resources consumed,” or even “with little resources remaining,” any of which would have communicated less emotion than the expression used by the writer here. Exaggeration The following examples of exaggerated language appear in the report: “The magnitude of vacancies” and “the magnitude of manpower requirements” An objective research report describing quantitative amounts of things will not describe the less-to-more continuum with a term depicting only one end of that continuum. The numbers speak for themselves and the differences can be objectively cited. By adding the emotional aspect of the difference in the title of the event described, the writer expresses an exaggerated judgment about it before it is even discussed, thereby raising the question of objectivity. “let no one leave the office without buying something” In his report Dr. Wallace argues, “when the quality of optometric practice goes down, the sale of eye-ware goes up.” He then adds in quotes, “let no one leave the office without buying something.” He does not claim that this is a quotation from his respondents, yet it is made to look like one. This statement does not follow from any data presented to support it. It is an exaggerated prediction of what he judges to be the case.

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Overgeneralization A research report is permitted to generalize, based on the facts presented throughout the research. Generalizing beyond such facts, however, is not condoned. Examples of the report’s overgeneralizations follow: “When optometrists are unable to do this (pay the $25,000 needed to start a practice), ethical practice is soon abandoned.” In his effort to define ethical practice in the report, he concludes that a huge percentage of Tennessee optometrists are practicing in an unethical manner, as evidenced by the study’s measure of what his questionnaire reveals about the way eye examinations are allegedly given. This is a serious inferential leap, even if it were based on verifiable information (which it is not). There is no data given to support specific unethical practices; only the belief that such are bound to exist. “patients soon come to be seen for the pocketbooks they represent” Like the above overgeneralization, the following includes no database to support it. The report gives no quotations from optometrists who may have said this and there is no evidence from the questionnaire that it was even asked. It is a generalization, based on the writer’s judgment of what might happen in the future. “optometrists must begin to exercise responsibility” This generalization presupposes that optometrists currently do not exercise responsibility about their standards of practice, nor have

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they done so in the past. The report claims to have proved this through the research conducted, although such conclusions are questionable, based on the flaws in the research procedures noted earlier. Finally comes the concluding sentence of Dr. Wallace’s report: “Given enough expansion, before long optometrists will not even need to practice optometry.” The sentence preceding this one had noted that students now enrolled at SCO “are learning how to give pelvic examinations, how to take blood pressure, analyze urine, and scan brain waves.” The final sentence overgeneralizes that the current trends will lead optometrists out of optometry altogether, implying that they next will enter into the territory of medical doctors.

Ambiguity and Vagueness A good research report presents the data and findings in words that are not capable of being misunderstood. Sometimes violations are mere flaws in writing competence but at other times vagueness and ambiguity can be assumed to provide intentionally an aura that the data do not in themselves support. The following are examples of this from the report: “Half or more of the patients seen by 16% of the optometrists are ‘drop-ins.’ ” On the surface, this may seem like an impressive percentage, but the report leaves unsaid that this actually means half or more of the patients seen by only the five optometrist/subjects who fit the category described. Low numbers of subjects can make percentages that represent them appear to be more impressive than they really are. “Some,” “several,” “a few,” “many”

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Often the report only vaguely represents the numbers of optometrists to which it refers on a given topic. In this 20-page report are 28 such vague number references (7 for “some optometrists,” 8 for “several optometrists,” 9 for “a few optometrists,” and 4 for “many optometrists”). A research report avoids vague number categories. “Action” The sentence in which this term appears is: “Action should certainly be taken against the latter two types of practitioners—the unacceptable and the unethical.” There is a continuum of meanings of “action:” from merely “reprimanding” at one end to the stronger, “giving legal sanctions,” at the other end. Although it might be considered inappropriate for a research report to recommend legal action, this wording encourages readers to understand this. Rhetorical Questions In contrast with research questions, which are perfectly appropriate ways of outlining the purpose of a study, rhetorical questions are persuasive devices commonly found in discourse that try to convince an audience of something. Although the examples here take the form of questions, their communicative function is that of statements. Rhetorical questions that are framed positively contain an implied negative. Those framed negatively contain an implied positive. Either way, the implied statement contains the answer that the writer intends the reader to infer. Examples of these in Dr. Wallace’s report include the following: “How far may a optometrist depart from the standards before action should be taken against him?” This question presupposes that optometrists have departed from the standards and asks how far they need to continue departing before

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action should be taken. Although “action” is not defined here, the context of the complaint suggests that legal action can be understood. The report then extends this point even further: “Who should initiate and carry out action against unethical practitioners?” The writer’s answer seems obvious from the context of the article, which serves to rally ophthalmologists to take legal action against optometrists. “After the would-be optometrist has made an investment of $150,000 and is unable to bring enough patients into his office to pay off his debts and earn something to live on, what can he do?” According to this research report, optometrists are underused because of SCO’s allegedly unethical production of more optometrists than the state needs. The inference supporting this question is that optometrists are in such plight that they are forced to resort to unethical practices. There is nothing else they can do to survive. “Should its legislature expand the practice of optometry even further in an effort to keep them in practice?” The buildup to this question has made it clear that the answer is that the legislature should not grant optometrists the power of prescribing therapeutic drugs. The “even further” in this question is curious. The proposed legislation contains nothing “further” than the right to prescribe therapeutic drugs, but by asking it this way, the question implies and instills fear that optometrists will not stop with this addition.

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“If optometrists are granted the right to treat diseases of the eye, into what areas will they wish to expand next?” This question implies that if the optometrists are allowed to prescribe therapeutic drugs, we should be very afraid that they will then take advantage of this and extend it to many other areas that are the sole professional territory of medical doctors. Research reports strive to be objective and neutral as they report findings that support conclusions. In contrast, writing advertisements, giving campaign speeches, naming products, offering homilies, and other speech events are free to influence readers with emotional associations and connotations. The fact that this report used pejorative terms, sarcasm, exaggeration, overgeneralization, vagueness, and rhetorical questions, indicates that the writer was not complying with the acceptable genre of research report writing but was, instead, apparently trying to influence readers by appealing to emotion and promoting an agenda.

Speech Acts: Giving Opinions vs. Reporting Facts Defendants in this case argued that Dr. Wallace was offering opinions, not reporting factual statements in his research report. This seems to be an unusual argument to make, since such reports by definition are supposed to be based on factual statements, not on opinions. In contrast, newspaper editorials are defined largely as opinions. So, oddly enough, arguing that the report contains opinions actually buttressed my analysis that it was not an acceptable research study. Nevertheless, during my deposition in this case, the defendant’s attorney asked me over and over again if I thought that what the

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research report was saying was actually an opinion. One series of questions about the difference between opinion and fact went like this: q: Did you reach any conclusion regarding the case at this time? a: The only conclusion that I have reached is that there are a number of pejorative terms, rhetorical questions, sarcasm, and vagueness in this document. q: Do you consider these to be improper in a research report? a: Yes, it is unusual to find them in a research report document, which is why they stood out to me. q: But have you occasionally seen such in research reports? a: I would say that I rarely see it . . . It’s an indication of poor research reporting. q: Have you seen opinions being stated by the researcher in research reports? a: In a research report, the facts are presented and conclusions are drawn from those facts . . . I can’t remember ever seeing successful research reports that included opinions . . . it’s not the nature of research reports to give opinions. One gives conclusions based on the facts revealed by the study. q: Am I correct that two individuals can review the same data and reach different conclusions? a: That’s indisputably true. q: All right. Then why isn’t it that an opinion—since two individuals have reviewed the same data but have reached different conclusions? a: Opinions are based on personal beliefs or attitudes toward a topic, not necessarily on the data . . . The genre of any document leads the reader or listener to understand what kinds of information that document will contain. If I see an editorial in the New York Times,

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I can expect it to contain opinions. If I see a research report, I do not expect to see opinions; I expect to see conclusions based on the facts presented in it. q: So there is nothing wrong with reaching different conclusions from the same data? a: It happens all the time. But it has nothing to do with our discussion about this document. This colloquy, and others like it, took place throughout my deposition. Several times the opposing lawyer tried to get me to agree that Dr. Wallace was expressing his own opinions in his research report. He hoped, I suppose, that if Dr. Wallace was simply giving his opinions, the charge of defamation might go away or be diminished, since opinions are not usually considered defamatory. But I held firm to the notion that this was a document that identified itself as a research report. However badly done, it contained some of the structural features of a research report and it had been called a research report over and over again in the materials leading up to that point in the case. If it quacks like a duck, it must be a duck. In such a case, anything that even might look like a conclusion would have to be considered to have grown out of the data presented in it. The fact that it was a research report, flawed or not, and allegedly reporting facts, did not diminish its potential for being defamatory. It would seem that at least part of this courtroom duel over “opinion” grew out of somewhat confusing differences between the courtroom use of “opinion” and the use of this word by most other people. I ran into this difference early in my experience of testifying at trial, when a lawyer referred to my testimony as my opinions. I disagreed, saying that these were my findings, my conclusions, not my opinions. My use of the term matched the most common senses in general dictionaries, which define “opinion” as:

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1 a: a view, judgment, or appraisal formed in the mind about a particular matter 2 a: a belief stronger than impression but less strong than positive knowledge 3 a: a formal expression of judgment or advice by an expert b: the formal expression (as by a judge, court, or referee) of the legal reasons and and principles upon which a legal decision is based (Merriam Webster’s Collegiate Dictionary, 10th edition). Garner’s Dictionary of Modern Legal Usage, 2nd edition (1995, 621), defines “opinion” as the American English term for a judicial deliverance, that is, the Court’s statement explaining its decision, including points of law, statements of fact. The findings revealed in my testimony in that earlier deposition did not represent my views, judgments, appraisals, impressions, or advice. Nor were they a formal expression by a judge, court, or referee. They were my linguistic analyses of the data put before me. In this case, Dr. Wallace reported his views, judgments, appraisals, strong beliefs, and advice within something called a research report by him and by other participants in the case. But even the inclusion of these things could not trump the plaintiff ’s evidence that his report disseminated unverified and untrue statements about optometry in Tennessee, along with and based on his subjective opinions, views, beliefs, appraisals, and advice. Even though his report was inappropriately peppered with opinions, he still reported alleged facts that were subject to examination for their truthfulness, accuracy, and potential for defamation. A second recurring theme put to me by the defendant’s lawyer during my cross-examination had to do with whether it would have been better to survey readers to discover what they thought about the document:

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q: But isn’t the true test of what it does and how it does what it does secured by talking to people who read it at the time it was published and the manner in which they perceived it? a: Sir, I tried to explain that earlier. The readers are part of the communication event. The writer is part of the communication event. The text itself is part of the communication event. The role of the linguist is to examine the text. I’m not saying it’s not useful to go out and survey the people who receive the text. That too could be useful but the text itself is the evidence. The same topic came up again later in this cross-examination: q: But isn’t the actual conclusion how it was perceived by the individuals who read it, don’t you secure that from the people who did read it? a: Yes, you can get evidence from them. But you can also get evidence from the text itself. And still again: q: Is it not the best way to ascertain if the document had, for the purpose of this question, its intended effect on the individuals who read it to go and talk to the people who read it and ask them what effect it had on them? a: I answered that earlier when I said that that is one way you could find out the effect on an audience. Another way to assess its potential effect is to analyze the document itself. q: And you are not actually saying that the document did actually have any of the effects which you indicate it might have on any individuals?

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a: I’m saying that the text itself has a strong potential for influencing the reader to view optometrists in a very negative way. One more thing that should be said about Tiersma’s theory is that it is the sender’s message (the text itself ) that should be examined in order to determine potential defamation. In this case, the defendants clearly believed that they had not defamed, but the plaintiff ’s lawyer used my analysis and testimony to turn this around and point to the evidence of the text itself, the language strategies used by the defendant, TAO, in its research report that created the defamation.

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Otolaryngologists vs. Plastic Surgeons In the February 1982 issue (volume 71, 103–105) of the Journal of the Medical Association of Georgia appeared an article entitled “Things Are Never What They Seem, Skim Milk Masquerades as Cream.” Dr. Jack R. Anderson, the American Academy of Facial Plastic and Reconstruction Surgery, and the American Association of Cosmetic Surgeons were appalled at this article and filed a lawsuit against the Georgia Society of Plastic Surgeons, Dr. William R. Huger, and Dr. John A. Rusca, charging that these three defendants conspired in the preparation and publication of the “Skim Milk” article. They based their claim on libel, unfair trade practices (specifically, false and disparaging statements about their services and business), and intentional infliction of emotional distress. The Court denied the plaintiff ’s motion for a directed verdict on their claim for libel and unfair trade practices but granted their motion for a directed verdict on their claim for intentional infliction of emotional distress.

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The “Skim Milk” article had its genesis in a long-simmering controversy between two groups of doctors. In one camp were the plastic surgeons, Drs. Huger and Rusca, along with their local association, the Georgia Society of Plastic Surgeons. On the other side were the Georgia otolaryngologists, specialists in ear, nose, and throat, who also perform plastic surgery on the head and neck. The case was brought by Dr. Anderson (a prominent pioneer in this specialty) and the two professional associations he represented. For several years, the plastic surgeons had been concerned about the growing number of otolaryngologists who were performing plastic surgery, considering this practice an unwanted invasion into the plastic surgeons’ special territory. In two earlier articles in the Journal of the Southern Medical Association, Dr. Anderson had announced that otolaryngologists were changing the name of their organization to reflect their broadening specialty, now to include head and neck medicine and surgery. The plastic surgeons opposed this idea and formed a committee that eventually selected Dr. Huger to produce a response that represented the views of their association about this. The “Skim Milk” article, written by Dr. Huger, was selected from an essay competition among the members of this committee. Following are the relevant, illustrative selections from the “Skim Milk” article (it was approximately four times longer than the passages quoted below) that caused Dr. Anderson and his associations the most concern: Georgia plastic surgeons were amused to see in the October, 1981, issue of the Journal of the Medical Association of Georgia, Dr. Jack Anderson’s party line article about the otolaryngology fraternity having added Head and Neck Medicine and Surgery to its name. Dr. Anderson seemed to be a prime mover in forming the American Academy of

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Facial Plastic Surgery, to claim an aptitude for doing cosmetic surgery. Also, seemingly under his tutelage, but with a plastic surgeon as its President-Elect to give it respectability, the American Association of Cosmetic Surgeons has been formed. This latter organization has graciously volunteered to act as a peer review group for cosmetic surgery. Both organizations, which appear to be splinter groups of the otolaryngology fraternity, are relatively unknown and appear blissfully devoid of any particular formal qualifications.

In recent years, the specialty of plastic surgery, which has traditionally included a wide range of cosmetic procedures, has become very attractive to various practitioners who wish to generate a lucrative cosmetic practice, but perhaps understandably do not wish to encumber themselves with the years of postgraduate surgical training required for plastic surgery qualification. Although not feeling that training is necessarily the mother of competence, these practitioners obviously would agree that necessity is the mother of invention. If one’s qualifications are shaky, the best conceivable smoke screen is to create a new organization with a highsounding name, join it, issue yourself a certificate for display in your waiting room, and circulate the good news to all the medical societies in the country via a mass mailing! Admittedly, announcing that your organization is now set up for peer review is a stroke of presumptuous genius, which must be admired by even the most aggressive cosmeticsurgeon-without-portfolio.

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This name game is becoming an old one, but the faces of the players are strangely familiar. This publicity emanates from a group of otolaryngologists who seem to be unhappy with their image and are trying desperately to do something about it. A new Academy, a new Association, and now a new name change! My, my, the potential for future word combinations is positively underwhelming! . . . We do feel that they should at least identify themselves properly, as do other members of the various surgical subspecialties.

The President-Elect is Dr. Richard A. Grossman, who is indeed a plastic surgeon, practicing in Sherman Oaks, California. The organization must be desperate for respectability so that necessity demands his selection. Nevertheless, one pint of whipping cream cannot significantly enrich thousands of gallons of skim milk. At this point in the article, the authors describe the history of their own American College of Surgeons, noting that it ensures proper training and experience for superior competence in the management of plastic surgery patients, adding: “Some other specialty boards have not adhered to that course of planned excellence in training.” The author then compares the plastic surgeons’ requirements with those of the otolaryngologists, noting that the field of otolaryngology does not have a strong core curriculum in general surgery, focusing its attention on “only the patient’s ears, nose, and throat,” and requires no internship. Only three years of training and one year of surgical residency are required in the field of otolaryngology. After this the article continues:

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Then came antibiotics and many diseases of the specialty were successfully treated without surgery. What should they do? Aesthetic surgery of the head and neck seemed the obvious field to invade. Several years ago, a small group of otolaryngologists, seemingly wanting to improve their image, formed the American Academy of Facial Plastic and Reconstructive Surgery claiming excellence in all cosmetic facial procedures. Requirements for membership did not, and still do not, include adequate additional training in cosmetic procedures not enjoyed by other otolaryngologists.

But the effect of this ill-conceived threat by a small group of men has been felt . . . But has anything really changed? The answer is an emphatic no! . . . As recent as October, 1981, Dr. Jack Anderson, under the sponsorship of the “American Foundation for Medicine and Surgery of Appearance” scheduled a 5-day seminar, the written objective of which was “to provide the surgeon who has a special interest in cosmetic facial surgery, regardless of his basic background, with practical information about the area and practice and to demonstrate proven methods currently being used . . . attendance makes one eligible for later participation in the mini-residency program of the American Foundation for the Medicine and Surgery of Appearance.” Is this how competent plastic surgeons are trained—by short seminars and mini-residencies?

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We must not let a maverick group, representing a quasinational organization, interfere with local responsibility, that of dictating the credentials for hospital privileges.

The issues relevant to linguistic analysis in this case grew out of the language used in the “Skim Milk” article, in which it was not difficult to see heavy criticism of otolaryngology as a specialization and of Dr. Anderson as its founder and leader. But criticism is not in itself subject to charges of defamation. The issue was about whether or not the “Skim Milk” article intentionally inflicted emotional distress upon Dr. Anderson and his two professional associations.

Discourse Structure It is often useful to first determine the organizational structure of a document such as this. In tape recordings of conversations, I’ve used topic analysis many times (Shuy 1993, 1998a, 1998b, 2005). Since consecutive topics often organize themselves into overall themes, I’ve added this element to the following description of the structure and topic flow of the article, as follows: Theme 1 (paragraphs 1–5) In desperation, otolaryngologists are forming a new organization that would claim the ability to do cosmetic surgery. Topics: 1. Dr. Anderson has formed a meaningless society. 2. Outsiders are invading the field of plastic surgery. 3. Otolaryngologists are trying to improve their own image.

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4. Plastic surgeons want other specializations to identify themselves properly. 5. This new association is desperate for respectability.

Theme 2 (paragraphs 6–8) Topics: The history of medical specialty boards 6. Specialty boards in medicine have been carefully established. 7. Plast ic surgeons have a strong, proper core curriculum in general surgery. 8. Bona fide plastic surgeons have three years of training in plastic surgery.

Theme 3 (paragraphs 9–10) Otolaryngologists have inadequate training in cosmetic surgery. Topics: 9. Otolaryngology does not have a strong core curriculum. 10. Otolaryngologists formed their new association claiming excellence in all cosmetic facial procedures but without adequate training. 11. Even though otolaryngologists have added a fifth year of postgraduate training, nothing has changed. Theme 4 (paragraphs 11–12) Dr. Anderson has proposed inadequate training. Topics:

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12. The American Board of Medical Specialists recognizes that even though the otolaryngologists have changed their name, they still have inadequate training, including Dr. Anderson’s mini-training program. 13. Bona fide plastic surgeons ask all other plastic surgeons to have the same training that we have. 14. We welcome the otolaryngologists to take our two-year training program. Theme 5 (paragraphs 13–14) Plastic surgeons are urged to oppose the efforts of otolaryngologists. Topics: 15. Don’t let a maverick group dictate hospital privilege credentials. 16. We hope all the people in Georgia will join us in urging otolaryngologists to get the two years of training that we can provide. Themes 1, 3, 4, and 5 contain most of the allegedly defamatory language, while theme 2, admittedly borrowed from other materials, is more descriptive of the history of the field. Theme and topic analysis enables the analyst to focus on fruitful areas for determining defamatory language. The question here is whether the plastic surgeons went beyond mere criticism. One way to view this is through the way in which language is used to encourage readers to make inferences when they read the “Skim Milk” article.

Conveyed Meaning: Possible Inferences People say things that appear to mean one thing but are capable of being understood in a different way. Table 9.1 displays state-

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Table 9.1 Inferences Statement

Inference

Title: “Things Are Never What They Seem, Skim Milk Masquerades as Cream” Georgia plastic surgeons were amused to see (Dr. Anderson’s) article his party line article Dr. Anderson . . . claims to have an aptitude for cosmetic surgery To give it respectability Both organizations appear to be splinter groups of the otolaryngology fraternity Both organizations appear blissfully devoid of any particular formal qualifications can just anyone in the fraternity do this surgery? a name change carries with it no more credential than just that alone practitioners who wish to generate a lucrative cosmetic practice do not wish to encumber themselves with the years of postgraduate surgical training required for plastic surgery certification If one’s qualifications are shaky

Otolaryngologists masquerade as real cosmetic surgeons. They are not competent surgeons Dr. Anderson’s article was amusing and trivial, not serious It’s the same old thing This aptitude is only a claim; not true It has had no respectability splinter groups are those that break away from, while fraternities are like wild bunches of college kids They have no qualifications This group cannot do this surgery They think changing their name can credential them All they want is to make more money Their training process isn’t as long as ours, therefore it’s not as good Theirs is shaky (continued)

Table 9.1 (continued) Statement

Inference

must be admired by even the most aggressive cosmetic-surgeon-without-portfolio The name game is becoming an old one, but the faces of the players are strangely familiar Seem to be unhappy with their image and are trying desperately to do something about it we do feel that they should identify themselves properly One pint of whipping cream cannot significantly enrich thousands of gallons of skim milk

They are not real cosmetic surgeons although they are clever It’s just a game to them and they don’t seem to give up They’re in trouble with their present image They masquerade as plastic surgeons Even though their president is a whipped cream plastic surgeon, the rest of them are the skim milk of the medical field They don’t have enough training

The bona fide plastic surgeon must have 3 years of training in general surgery as his core curriculum Aesthetic surgery of the head and neck seemed the They are a foreign army of invaders obvious field to invade But this ill-conceived threat by a small group of men has It is wrong of them to threaten our territory been felt We must not let a maverick group, representing a They are mavericks whose organization is not quasi-national organization national

Otolaryngologists vs. Plastic Surgeons

ments from the “Skim Milk” article along with their possible meanings.

Speech Acts: Giving Opinions vs. Reporting Facts The defense argued that the article contained only opinions, not representations of facts. They based their contention of several uses of opinion-type expressions that use “seem,” “appear to be,” and “feel”:

“Dr. Anderson seemed to be a prime mover . . . ”

“seemingly under his tutelage”

“Both organizations, which appear to be splinter groups of . . . ”

“appear blissfully qualifications”

devoid

of

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particular

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“group of otolaryngologists who seem to be unhappy with their image”

“We do feel strongly, however, that they should at least identify . . . ”

“seemingly wanting to improve their image”

In contrast with these opinion-like statements are the following fairly telling, direct representations of fact, most of which also attribute intention:

“plastic surgery . . . has become very attractive to various practitioners who wish to generate a lucrative cosmetic practice”

“Although not feeling that training is necessarily the mother of competence, these practitioners obviously would agree that necessity is the mother of invention”

“the best conceivable smoke screen is to create a new organization”

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“admired by the most aggressive cosmetic-surgeon-withoutportfolio”

“The organization must be desperate for respectability”

“The effect of this ill-conceived threat”

“mini-training is being used by the otolaryngologists”

“this maverick group, representing a quasi-national organization”

Malicious Language As noted earlier, the Sullivan decision required that when a public figure is allegedly defamed, the plaintiff must show that malicious intent has occurred. Intent can be difficult to prove, but certain aspects of the language give some clues. Among these is evidence of heightened emotion that is interpretable as anger. It is obviously easier to decode anger in spoken language than in written text but there are clues just the same. When speaking, angry people often raise their voices, engage in name calling, and use sarcasm and rhetorical questions. The equivalent to shouting in written text is sometimes seen in the use of exclamation marks, of which there are 163

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four in this article. In addition, the authors engage in name calling with expressions such as:

“high sounding name”

“cosmetic-surgeon-without-portfolio”

“maverick group”

“quasi-national organization”

The most obvious use of name-calling is found in references to the otolaryngologists as “skim milk,” both in the title of the article and later in its text. Sarcasm is found in several places as well, including:

“circulate the good news to all the medical societies”

“My, my, the potential for word combinations is positively underwhelming”

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“Georgia plastic surgeons were amused to see”

“This latter organization has graciously volunteered to act as a peer review group for cosmetic surgery”

“do not wish to encumber themselves with the years of . . . training”

Rhetorical questions do not invite a reply because they presuppose their own answer. The following are illustrative here:

“Is there now a Head and Neck Medicine and Surgery Section of the Council and Academy of Otolaryngology or can just anyone in the fraternity do cosmetic surgery?”

“ . . . under Georgia law, a fresh graduate of an accredited medical school after 1 year of internship may begin practice as a neurosurgeon, ophthalmologist, or whatever. Why not a cosmetic surgeon?”

“But has anything really changed?”

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“Is this how competent plastic surgeons are trained?”

Personal Libel of Dr. Anderson Since the defense claimed that there was nothing in the article that defamed Dr. Anderson personally, the following two passages became the focus of contention. In paragraph one of the article, defendants made it very clear that it was Dr. Anderson who: “ . . . seemed to be a prime mover in forming the American Academy of Facial Plastic Surgery, to claim an aptitude for doing cosmetic surgery . . . Both organizations are relatively unknown and appear blissfully devoid of any particular formal qualifications.” If Dr. Anderson was a prime mover in forming the new associations and if he claimed to have an aptitude for doing cosmetic surgery and if the organizations he formed and belonged to are devoid of formal qualifications, it follows that the writers are claiming that Dr. Anderson is equally devoid of formal qualifications. In paragraph two, the author refers to “one’s” shaky qualifications for doing plastic surgery. The defense claimed that this did not refer to Dr. Anderson. But the context of the rest of the paragraph makes it clear that it did: “If one’s qualifications are shaky, the best conceivable smoke screen is to create a new organization with a high-sounding name, join it, issue yourself a certificate to display in your waiting room, and circulate the good news to all the medical societies in the country via a mass mailing. Admittedly, announcing your organization now set up for peer review is a

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stroke of presumptive genius, which must be admired by even the most aggressive cosmetic-surgeon-without-portfolio.” Here the reference to “one’s” is identified as the “one” who created the new organization, which the authors have already made clear to be Dr. Anderson, either alone or in unison with others. It was also Dr. Anderson who “announced your organization,” the “your” referencing the “one” identified earlier. It was Dr. Anderson who sent the announcement to other medical societies. And it is Dr. Anderson who is referenced by the sarcastic “most aggressive cosmetic-surgeon-without-portfolio.” This case went to trial in the Superior Court of Fulton County, Georgia, in 1986. Among other issues argued at trial was whether statements in the “Skim Milk” article constituted opinions or recitation of facts. Also argued was whether or not the defendants were “public figures,” which was necessary if they fell under the “actual malice” requirement in effect since the Sullivan decision. The jury found for the plaintiffs, awarding Dr. Anderson $500,000 in actual damages, one million dollars in punitive damages on the count of libel, and one thousand dollars in damages on the unfair practices claim. The two plaintiff medical groups were awarded one thousand dollars each on the libel claim and an equal amount on the unfair trade practices claim. The plaintiffs appealed this decision and the Supreme Court of Georgia decided on the issue in December 1987 and ruled that the defendants were private figures, not public, but nevertheless concluded that the evidence was sufficient to support the verdict of libel. The Court reversed the jury decision concerning unfair trade practices, noting that this claim “substantially overlapped their claim for personal defamation.” Defendant’s claim that the “Skim Milk” article constituted the opinions of the authors about the qualifications of certain other physicians to perform plastic surgery, and were therefore not libelous, was found by the Appellate Court to have no merit.

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As a footnote to the case, this was not the first time that trouble has brewed over the derogatory use of “skim milk.” Holland and De Sève (1997, 1) report a duel that took place near St. Louis in the early years of the nineteenth century, when Congressman Spencer Pettis of Missouri, who was running for reelection, and Army Postmaster Major Thomas Biddle had at it. Biddle had called Pettis “a bowl of skimmed milk.” Both were killed in a subsequent duel. The defamatory skim milk tradition lives on.

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PART IV

Defamation Disputes in the Field of Business

Individuals are not the only subjects of defamation lawsuits. Corporations can also find themselves in libel or slander disputes over many things, including issues over their territory and obligations, their relationships with individual employees, and in disputes with their unions. Chapter 10 describes the case of the founder and former owner of a large hair care company who gave a speech in which one of the company’s distributors claimed he was slandered. Chapter 11 describes the libel case of an insurance policyholder against the company that insured her. In chapter 12 the defamation issue focused on memoranda that plaintiff believed to be libelous and prevented her from being employed in the future. Chapter 13 depicts the case of a fire prevention company that claimed its union had defamed it both in writing and on the radio.

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10

Infighting in the Hair Care Products Industry The Aveda Corporation is a manufacturer of high-end hair care products that it makes available to customers only through upscale, licensed professional salons, professional hair stylists, and its Aveda Lifestyle retail stores. Aveda products were created by Horst Rechelbacher, a native of Austria, who came to America and built his business to the point at which Aveda products were sold to some 30,000 professional salons worldwide. Rechelbacher took great pride in the fact that his Aveda products were manufactured naturally from plants and flowers. The distribution of this company’s products was tightly controlled by contractual restrictions concerning the types of salons, stores, and distributors that were authorized to sell Aveda products. One such distributor was William Gray who, along with his company, WDG-West (hereafter Gray), was in 1988 the exclusive distributor of Aveda products in Northern California. A disagreement over his contract developed, leading to lawsuits brought by both sides. 171

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They reached a settlement in 1997, at about the same time that Estee Lauder purchased Aveda from Rechelbacher. Pursuant to this settlement, Gray agreed to give up his Northern California territory but was granted a five-year contract to distribute Aveda products exclusively in Florida. One of the difficulties facing companies like Aveda is diversion of sales outside the manufacturer’s normal authorized channels of distribution. When such diversion takes place, the products can be sold in drugstores or unauthorized “pseudo” salons (those that have no active or full-time stylists trained in Aveda procedures and products). Distributors responsible for such diversion are considered guilty of serious malfeasance, and their distribution contracts can be voided.

Rechelbacher’s Speech On September 13, 1998, before an audience of some 5,000 Aveda distributors and their employees who attended the annual Aveda Congress at Radio City Music Hall in New York City, Rechelbacher, now serving as a consultant/advisor to Estee Lauder, was the main speaker. In his approximately twenty-minute speech, Rechelbacher said some things that Gray charged were false and defamatory about him and his company: •

•

•

that there had been a problem distributor in San Francisco who did not understand the Aveda philosophy; that this distributor had sold Aveda products to anyone who would call on the telephone, without verifying whether the purchaser in fact represented a licensed professional salon; that the San Francisco distributor had sold Aveda products to drugstores and “pseudo salons; and 172

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•

that Aveda had gotten rid of that problem distributor by terminating him and that the San Francisco market was now cleaned up.

Gray claimed that the “problem distributor in San Francisco” Rechelbacher referred to was known to numerous members of the audience to be Gray and his company, WDG-West, because it was the only distributor for Northern California. Gray considered it a false allegation that he had intentionally diverted Aveda products and that Gray’s Aveda distributorship was terminated as a result. Following accepted protocol, on September 21, 1998, attorneys for Gray sent a letter to Rechelbacher, averring that his statements were false, defamatory, and damaging to the reputations of both Gray and his company. Gray demanded an immediate public retraction and written apology (note the similarities to the old dueling process here). But Rechelbacher offered no retractions or apologies. Shortly after, in fact, a beauty trade magazine interviewed Rechelbacher and published what Gray called the “almost identical defamatory statements” that were in the New York speech.

The Magazine Article Gray claimed that Rechelbacher knowingly and with express malice permitted the alleged defamatory statements to be reproduced in the 1998 issue of a magazine called Beauty Mfg. As evidence, the complaint cited the following statements about this unnamed distributor from Rechelbacher’s speech:

“really polluting certain markets” and “ignoring the terms of [Aveda’s] contracts with them”

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“selling to anybody and everybody, particularly to phantom salons”

“only interested in bringing product to the shelves”

“[did] business by telephone and [would] ship to anybody and everybody who wanted to place an order”

“too lazy and too greedy, and the weekly money was more important to them than [Aveda’s] long-term strategies and goals”

“had their distributorships terminated by Aveda” [for engaging in wrongful activity]

Gray claimed that, as a result of this speech and magazine article, other manufacturers of beauty products would no longer consider using Gray’s company as a distributor of their products, causing him lack of income and personal embarrassment. As noted in other cases described in this book, defamation law commonly views slander from the perspective of the alleged victim, the receiver of the message. In speech act theory, this is called the

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perlocutionary effect, the effect that the message has on the feelings or actions of the receiver. There is also another important feature that linguists call illocutionary force, the act in saying something as opposed to the act of saying something. This leads to understanding the intent of what the sender said, clues of which are indicated by both the context and by the intonation—the way the message was said. Illocutionary acts cause perlocutionary effects. As noted earlier, Tiersma’s Texas Law Review article (1987) stressed the need to turn this idea about defamation law on its head. Instead of viewing defamation only from the perspective of the receiver, one should try to show the intent of the sender, as revealed by whatever clues one can decipher from the text. Doing so helps identify the issue of intended malice, while focusing only on the receiver of the message does not. Linguistic analysis of Rechelbacher’s speech and the quotations attributed to him in the magazine article lead to three conclusions: (1) that Rechelbacher’s non-native English skills led to at least some of Gray’s misunderstandings of his intent, (2) that Rechelbacher’s use of language demonstrates that his primary intent was to inform his audience that the new owner, Estee Lauder, would continue the high standards and educational process started by Aveda, and (3) that Rechelbacher’s language does not exhibit evidence of the linguistic characteristics or features often associated with a person communicating with malicious intent.

Conclusion 1: Rechelbacher’s non-native English language abilities led to misunderstanding of his intentions. Analysis of the oral language of Mr. Rechelbacher, revealed by the videotape recording of his Radio City speech, indicates that his use of English was not up to native-speaker quality, causing

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his expressions and ideas sometimes to be confusing, ambiguous, and capable of causing his listeners to misunderstand or misinterpret what he was saying. A few examples of this are illustrative: “They are just clean up the city” “We looked what going on” “We going to be better” “We did twenty years ago the product” “Give you ideas what they are carry out” “Where hair dryer give off radiation” “He has a great intuitive for new business” “We have technology where is color without color” “It’s almost like holograph” “We not just going to” “We professional educate the client” “We have powerful woman in the network” “They have the sheeps” “They have takes closed down” Like many non-native English speakers, Rechelbacher had difficulties with English prepositions, articles, contractions, plural markers, third-person singular verb forms, and existential verbs. He also used words in a non-English fashion, had difficulty with relative pronouns, auxiliary verbs, and Standard English syntax. All of these problems were clearly evident in his Radio City address. A speech before an audience is a one-way communication, allowing little or no opportunity to determine how listeners understand the speaker. From the complaint we know the way that Gray understood Rechelbacher but, as far as I know, no survey of the audience was made. But clear evidence that Rechelbacher spoke in a way that was difficult for those who heard him to understand was found in his deposition by the opposing attorney, who frequently complained that

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he didn’t understand what Rechelbacher was trying to communicate. His admitted confusion and his many requests for clarification became part of the database I used to emphasize this point. As evidenced by his speech overall, Rechelbacher is far from an accomplished orator. Among other things, he makes many false starts, he self-corrects, and he changes direction rapidly, often midstream in his topic. In one topic he started with the present perfect tense, then switched to the present tense, then concluded with a mixture of the present perfect, present, and past tenses (emphasis added): “What we have done in San Francisco is amazing. No other company has gone into a territory like we have San Francisco. We have a distributor that was not sharing our philosophy. Instead of going out there and do what other distributors have done who are committed, no rather sit in their office and sell to anybody who make a phone call to buy Aveda, not qualifying a salon, not going there to look if we want to be embarrassed to see our products, I was embarrassed.” Of particular interest here is that Rechelbacher uses the present tense when he refers to the San Francisco incident that happened in the past. At the time of this speech, Gray already had been removed from the California territory. Grammatically he is not referred to as the distributor who had violated Aveda’s philosophy. If Rechelbacher had wanted to refer to Gray here, he should have used the past tense: “We had a distributor that did not share our philosophy.” The rest of this paragraph deals with “other distributors” (plural), also not specific to Gray. Whether Rechelbacher’s less-than-perfect language was the issue here is open to argument, of course. Perhaps he confused his tense markers, common for him, and he really meant to refer to Gray. We know that Gray certainly thought it was a reference to him. But when we situate the alleged defamation on the illocutionary force of the message rather than on its perlocutionary effect

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on the receiver, it is clear that the actual language of the message here does not support Gray’s argument as the receiver of that message.

Conclusion 2: Rechelbacher’s use of language demonstrates that the primary intent of his discourse was to educate his audience that the new owner, Estee Lauder, will continue Aveda’s high standards and educational processes. Discourse structure The overall structure of a discourse is seen in relationship to the topics introduced in that discourse. Readers expect appropriate discourse topics to be consistent with the event in which those topics are presented. For example, it may be inconsistent to introduce the topic of baseball scores in the discourse event of a sermon. Likewise, the discourse event of a keynote speech at a congress of specialists should be relevant and consistent with the genre expected at meetings of this type. Motivating ideas, assurances that things are going well, and admonitions to the audience to improve and keep the faith are expected in keynote addresses of this speech event genre. As the following topic sequence chart illustrates, Rechelbacher produced topics in his speech that were proper for and consistent with the structure of a motivational keynote speech. Topic sequence in the Radio City Music Hall speech 1. 2. 3. 4. 5. 6.

Thank you for the introduction A story about Fred (who introduced him) New product lines We need protection for salons and clients Health and beauty are most important I’m excited about the marriage of Aveda and Lauder

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7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30.

You should do things one time, stick to it, reinvent yourself I saw great potential in the Lauder lab Example: intelligent water in the products Example: block radiation in hair dryers Example: color without color product Example: magnetic balancing product The merger takes this a step forward We need to make louder, clearer statements about what was done in the past We have data to show improvements Less is more (the Aveda philosophy) Education is needed Product: clean, modern, better cut, attitude, makeup Example: not like a department store Tomorrow you’ll meet the co-chair of Lauder We are in a different period Example: embarrassed by a San Francisco distributor The future looks absolutely incredible You should work on your excellence About a new book, professional shows, and tour We want you to do consumer workshops You need to educate your customers This (meeting) is a healing process You should be in shape, stress skills, attitudes Introduces senior vice president Bob Sellen.

The topics revealed in Rechelbacher’s speech demonstrate that his primary goal, as revealed by these topics, was to explain that the merger with Estee Lauder would continue the traditional strengths of the Aveda philosophy of less is more, educating clients, and healing (topics 5, 16, 17, 27, and 28). The majority of his topics, closely related to this goal, show his personal excitement about joining with Estee Lauder

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(topics 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 20, 21, 22, and 23). Topics 18, 19, 24, 25, 26, and 29 are challenges or admonitions to the audience to follow the merged Aveda/Lauder philosophy and approach. Three of the topics are formulaic, conventional routines of speech: the “thank you” at his introduction (topic 1), the humorous story about Fred (topic 2), and his introduction of the next speaker (topic 30). Quantitatively, the speech can be categorized as follows: Aveda philosophy, 5 topics; the exciting merger, 16 topics; admonitions to audience, 6 topics; formulaic topics, 3 topics (a total of 30 topics). Rechelbacher employs a standard technique of public oratory by giving examples for some of the points he made. Thus topics 9, 10, 11, and 12 (plans for new products) are given as examples of the preceding topic 8 (the great potential he sees in the Lauder lab). His challenge to salon keepers in topic 18 is followed by an example, “not like the department store” (topic 19). Important to this case is the fact that topic 21, “we are in a different period,” is followed by topic 22, the example of the San Francisco distributor that caused him embarrassment. The significance of Rechelbacher’s use of examples to illustrate or enforce his points is that these examples are not his main points, but rather, are ways of illustrating his preceding topics. Throughout this speech, Rechelbacher’s dominant theme is that there is now a new era with Estee Lauder that will not change the values of the Aveda philosophy and approach. In fact, things will be even better because of the new technology at the Estee Lauder lab. He gives four examples of this new era as a “different period,” for which there will be no need for future embarrassment caused by situations such as the one he mentioned in San Francisco, where he reports that the Aveda philosophy wasn’t shared. Rechelbacher mentioned the San Francisco case as an example of how the new owners (Estee Lauder) “go in the streets, look at what’s going on” and promise to “change all that because it’s about excellence.” This is in keeping with the theme of

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the entire speech: that the merger of Aveda and Estee Lauder will work for the good of the salon owners present at the meeting.

Syntax referencing in the speech The San Francisco example (topic 22) was the core of the complaint against Rechelbacher because Gray believed that it singled him out personally. The exact text of the alleged defamation in Rechelbacher’s speech at this point is as follows (emphasis added): What we have done in San Francisco is amazing. No other company has gone into a territory like we have San Francisco. We have a distributor who was not sharing our philosophy. We have a distributor not sharing our philosophy. Instead of going out there and do what other distributor have done who are committed, no, rather sit in their office and sell to anybody who make a phone call to buy Aveda, not qualifying the salon, not going there to look if we want to be there, because we been in shops there where I was embarrassed to see our products. I was embarrassed. And I took a trip with Fred. This is the kind of person he is. We go in the streets, we look what’s going on, Fred, myself and there and, uh, there was another gentleman, I can’t even think who was with us, but we went to San Francisco and we looked what’s going on and I discovered stuff which was embarrassing to me, and he said, “Don’t worry, we’ll change all that.” Because it’s about excellence. It’s about less is more. It’s about all of that, and they have takes closed down, stop selling to the drugstore to the imitators salon place and they are just clean up the territory. There were a lot of angry people, a lot of angry people, and if a company has that kind of commitments to excellence, I’m just proud to be a part of that and so, and so should you.

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Rechelbacher’s lawyers claimed that this San Francisco example did not isolate a single person or a distributing company. First of all, it provides an example of a condition that Estee Lauder will not accept in the future any more than Aveda had accepted it in the past. It continues Rechelbacher’s major theme, the excellence that Estee Lauder is preserving as part of the Aveda philosophy. Note also Rechelbacher’s inept use of noun singular and plural throughout. He mixes singular with plural references even in the same sentence, uses plural verbs with a singular subject, and makes other grammatical errors as well. Exactly who was being referred to is far from clear here. If a case could be made that Rechelbacher defamed Gray in his example of the San Francisco case, it would be necessary for the syntax and lexicon used to connect the two more explicitly than it did here.

Syntax referencing in the magazine article The article in Beauty Mfg was also cited by Gray as demonstrative of Rechelbacher’s malice and defamation. The following passage, highlighted in the complaint, comes after the article had already introduced the topics of the purchase of Aveda by Estee Lauder, described as “a marriage made in heaven,” the topic of Rechelbacher’s continued enthusiasm about the new merger, and the topic of Rechelbacher’s high regard for Estee Lauder’s integrity, intelligence, and analytical business acumen. The article then brings up the topic of Rechelbacher’s reasons for selling his business, largely because he does not regard himself as “a business manager or people manager.” The next topic addresses the directions and future plans for Aveda salons and products, noting the falsity of the rumor that Estee Lauder might market Aveda in department stores. Then we reach the allegedly defamatory passage in which Rechelbacher is quoted (emphasis added):

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“What Lauder has done—and this is something I always wanted to do and wasn’t as successful at because I didn’t have the muscle that Lauder has—to clean up the distribution,” explains Rechelbacher. “Some of our distributors weren’t interested in promoting our philosophy, system of sales and mission. Some were really polluting certain markets, ignoring the terms of contracts with them. They were selling to anybody and everybody particularly to phantom salons.” Here we see no specific identification of who “some of ” and “they” refer to. Gray believed it meant him but the language of the text does not specify this. Following this passage, the article goes on to describe the Aveda philosophy and system of sales, noting that Aveda put restrictions in its contracts with distributors and did not sell to chain salons. Having expressed his excitement that Estee Lauder is continuing Aveda’s high standards, Rechelbacher is quoted again, giving examples about cleaning up the distribution, polluted markets, and phantom salons (emphasis added): Certain distributors were “only interested in bringing product to the shelves,” according to Rechelbacher. “It was much easier for these distributors to do business by telephone and ship to anybody and everybody who wanted to place an order. Then you don’t need to have salespeople on the road educating and qualifying salons. When that happens, salons with high standards and good quality aren’t interested in being a part of Aveda,” he adds. Rechelbacher says he “tried to convince” some of these distributors “to do what other distributors were doing: to follow our ideas of being a part of education, being a part of ‘less is more’ and opening Lifestyle stores.” “Some,” he notes, “were too lazy and too greedy, and the weekly

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money was more important to them than our long-term strategies and goals.” He cites Northern California as an example of a “polluted market” for Aveda that has been “cleaned up” by Estee Lauder “because we are really committed to the professional hairdresser who has high standards, has great abilities and is interested in an environmental mission like Aveda.” One of the first things to note about the magazine’s quotations from Rechelbacher is that his references are in the plural form. He speaks of “some distributors,” “these distributors,” “salons,” “some of these distributors,” “some . . . were too lazy and too greedy,” and “more important to them.” Pluralization of these references indicates grammatically that no single distributor or person was referenced here. The last paragraph of the above article cites Northern California as an example of what Rechelbacher means by a “polluted market” that has been “cleaned up” by Lauder. The article next discusses Rechelbacher’s excitement about the alliance with Estee Lauder, the improvement in the network of distributors, and the continuation of the Aveda concepts of excellence, “less is more,” and educating clients. In keeping with Rechelbacher’s discourse style of giving examples of important points he makes, he cites the Northern California territory as an example of what he means. But Rechelbacher mentions no specific distribution companies and no specific individuals. It is not easy to follow the meaning of Rechelbacher’s confusing switches from singular to plural pronoun referencing and his meandering verb forms. Taken as it is written, however, this paragraph can be parsed grammatically to indicate: (1) (2)

Aveda/Estee Lauder has gone into San Francisco and done something amazing. In contrast with committed distributors, some distributors who do not presently share Aveda’s

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philosophy, sit in their offices, sell to anybody over the phone, and do not qualify their salons. The assumed interconnection between (1) and (2), as suggested by plaintiffs, is not supported by the actual syntax used. The assumption that “what we have done in San Francisco” continues the following sentences about “a distributor not sharing our philosophy,” and distributors who “sit in their office and sell to anybody” is violated by the syntax of the pronoun and verb forms used by Rechelbacher. Grammatically, these are two separate points, not uncharacteristic of Rechelbacher’s penchant for switching topics rapidly and without transitions.

Conclusion 3: Rechelbacher’s language does not exhibit evidence of the linguistic characteristics or features associated with those of a person communicating with malicious intent. Relevant Minnesota law defines malice as “actual ill will, or a design causelessly and wantonly to injure.” Malice implies a deep-seated, often unexplainable desire to see another suffer, in contrast with “malevolence,” which suggests a bitter, persistent hatred that is likely to be expressed in malicious conduct. It also contrasts with “ill-will,” which implies a feeling of antipathy of limited duration, and with “spite,” which implies petty feelings of envy and resentment that are often expressed in small harassments, and “grudge,” which implies a harbored feeling of resentment or ill will that seeks satisfaction. The key words defining malice are “desire” and “intent.” These key words suggest strongly that negative, emotionally loaded words likely would be used throughout passages believed to be malicious, if not throughout the speech itself.

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Malice generally has the following behavioral characteristics: an aroused neural system in the brain, and an increased drive that makes a speaker’s behavior more stereotyped, disorganized, and filled with a sensation of emotion, anxiety, or pain. Language indicators of aroused emotions in the communication of malicious language include the use of distress phrases that include laments, accusations, complaints, expressions of how to get relief, the employment of strong imperatives (commands), and a noticeable emotional heightening of the communicator’s tone of voice. If Rechelbacher felt malice as he gave his New York speech, it could be expected that his language would reveal some or all of these linguistic characteristics of malicious speech. Therefore, I examined his Radio City speech for any instances of these.

No distress phrases Such expressions include laments, accusation, and complaints. There are no speech acts of lamenting or accusing in this speech. The closest thing to a complaint is Rechelbacher’s admission that he was embarrassed at what he saw in shops where people sell over the phone and do not qualify the salon. Even then, however, the level of any discomfort is revealed by his choice of words. Stronger or more exaggerated terms, such as “disgusted,” “mortified,” “sickened,” and so on, do not occur. Embarrassment is a mild form of distress, signaling personal discomfort rather than intensive negativity toward others. Any malicious statement here would be expected to be much stronger than the expression of personal embarrassment. The magazine article quotes Rechelbacher saying that some distributors were “too lazy and greedy” to comply with his “long-term strategy.” The syntax and discourse context show that this is a reference to unspecified distributors (plural), not individually to Gray or

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his company. But even these mild words of distress about such distributors would be expected to be much stronger and personalized if they are to qualify as an indication of malicious intent. In contrast with distress phrases, the New York speech and the magazine article are replete with emotionally positive expressions such as: “share my excitement,” “great potentiality,” “the most miraculous thing,” “how good we really are,” and “I’m very proud.” No expressions about how to get relief Emotionally charged speech typically does more than say what is wrong. It often offers a path for future restitution or alleviation of the alleged wrong that is addressed. Rechelbacher speaks of promised future actions such as, “stop selling to the drugstore—to the imitators salon,” but no steps are suggested for future action and there are no expressions about how to get future relief from any past offenses, including embarrassment. No imperatives Contrary to what can be expected of emotionally heightened speech, Rechelbacher’s New York speech offers no imperatives in his topic of the San Francisco example. No negative emotions as revealed by tone of voice Examination of the videotape of Rechelbacher’s New York speech revealed no evidence of negative, emotionally charged language that might be revealed through his use of higher pitch, loudness, speeded speech, or other signs of heightened negative emotion in his tone of voice. His pace throughout was ploddingly slow and unanimated.

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No menacing gestures The videotape of Rechelbacher’s speech provides no evidence of non-verbal communication that would suggest negatively charged emotion. During most of his speech, he spoke with one hand in his coat pocket, hardly a menacing stance. There is nothing in the least bit out of the ordinary about his manual or non-manual gestures. They all relate to the content of his speech, and none can be described as threatening or menacing. For example, he uses a sweeping hand gesture to indicate inclusivity when he says things such as “sell to anybody.” Speakers commonly use such hand sweeps (called iconic gestures by McNeill 2005, 39) when they refer to groups or collections of people or things. Here the sweep manually indicates more than one person. His sweeping gesture when he talks about “cleaning up the territory” indicates an entire area, not a specific one. Many of Rechelbacher’s gestures are superimposed beats (McNeill 2005, 40–41), up and down or side-to-side hand movements that appear to be beating time as a series of similar or related things are said. The plaintiff made much about Rechelbacher’s occasional use of a semi-closed fist as he spoke. Gesture research has shown that people use a fist or semi-fist to communicate a number of things, including such benign issues as pushing lawn mowers or holding objects. The fist is also used to indicate grasping ideas or concepts. Rechelbacher comes closest to making a fist when he spoke of “other distributors.” In this case it was not a closed fist. His thumb was beside his index finger rather than across the fingers, and his hand moved from right to left as he said the words, a gesture commonly used to indicate contrast. His hand gesturing and body movements, observable in the videotape of his New York speech, are relatively consistent, even predictably repetitive throughout the address. In summary, there is no verbal or non-verbal evidence that Rechelbacher used malicious language, either in his New York speech

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or in the quotations from him that appeared in the magazine article. Examination of the discourse of Rechelbacher’s address to the Aveda congress in New York suggests strongly that the primary intent of his speech was to reiterate the Aveda philosophy, to explain that the new owner, Estee Lauder, would continue that philosophy and develop it even more, and to motivate the audience to greater things in the future. The events related to the San Francisco visit were used as general examples related to these things.

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11

A Policyholder Sues Her Insurance Company On January 29, 1988, Frank Deramus applied to Jackson National Life Insurance Company for an additional $300,000 of life insurance. At the time of this application, Mr. Deramus already had $500,000 of life insurance in force with Jackson National. The beneficiary of both of these policies was his wife, Jody Deramus. Like most policies, the new application form required information about the applicant’s health. Mr. Deramus reported that he had no physical or mental problems and no recent doctor visits. As part of the application process, Jackson National requested that he agree to a paramedical examination and submit blood and urine samples. A laboratory report subsequently revealed that Mr. Deramus tested positive for HIV. Jackson National then notified Mr. Deramus that his application for additional coverage was denied but the company did not disclose the reason why his application had been rejected. Jackson National explained that it is company policy not to explain the precise heath reasons for denial or modification because 191

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of the confidential nature of such information. Law requires that the applicant can request such information, but even when this is done, the information is released only to the designated health care providers of the applicants and not to the applicants themselves. According to Jackson Life, Mr. Deramus made no such request until March 1991. The information then was sent to the designated health care provider in the following month, April. Mr. Deramus died in June 1991 and his widow was paid the face amount of the original policy, $500,000. In the following year, Mrs. Deramus filed a lawsuit in the U.S. District Court for the Southern District of Mississippi, alleging that Jackson National failed to disclose the medical reason for the denial of her husband’s additional coverage, thereby “significantly reducing Mr. Deramus’ life expectancy and quality of life and exposing her to potential harm.” In September 1995 the U.S. District Court entered a summary judgment in favor of Jackson National, ruling that the company was not required to disclose the reason for its rejection of his claim. In August, 1996, the U.S. Court of Appeals in the Fifth District upheld this decision. During the following three years, Mrs. Deramus sought the help of her congressman concerning this matter. Eventually she sued Jackson Life for libel, claiming that false and defamatory statements were made in a letter from Jackson Life to Congressman Tom Coburn and causing that letter to be published to members of Representative Coburn’s office and professional staff, to whom Mrs. Deramus had come for help. Additional false and defamatory statements were published that were said to evidence a systematic plan and scheme to defame and destroy the credibility of Mrs. Deramus. These statements portrayed Mrs. Deramus as “absurdly litigious” and, among other things, stated that Mr. and Mrs. Deramus had been “involved in at least 32 court proceedings.” This case soon attracted the attention of the media. In November, 1996, the producers of NBC’s Dateline program were working on a

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possible story about the experiences of Mr. and Mrs. Deramus. When Jackson National heard about this plan, its senior vice president sent two documents, called a “White Paper” and a “Deramus Case Chronology,” to Dateline NBC, in an effort to get the story killed or at least, as they put it, “turned.” Attorneys for Mrs. Deramus charged that these two documents falsely indicated that Mr. and Mrs. Deramus had a sordid past, that they had engaged in a disreputable lifestyle of illegal drugs and extramarital sex, that they had exposed themselves to AIDS through such activities long before Jackson National was in the picture, and that Jackson National planned to reveal these facts if Mrs. Deramus cooperated with the proposed Dateline story. Jackson Life further charged that Mrs. Deramus was dishonest, had misled Dateline, had attempted to defraud Jackson National, and that the couple knew that Mr. Deramus was dying with AIDS when they tried to purchase the additional coverage. Jackson National also made these statements at a meeting with Congressman Tom Coburn and his staff in Washington, DC in March, 1997. In late March, 1997, Mrs. Deramus was asked to appear and testify at a hearing of the Maryland House of Delegates Committee on Economic Matters, which was then sponsoring a bill that would require insurance companies to disclose adverse medical test results directly to applicants who were denied insurance. When Jackson National heard about this request, the company sent a letter to various members of the Maryland House of Delegates, claiming that Mrs. Deramus was a liar and was otherwise engaged in dishonest and disreputable conduct. Jackson Life published other similar letters to other media outlets in California, Texas, and other states as well as to the Louisiana Insurance Commission. On March 18, shortly after Mrs. Deramus met in conference with Congressman Coburn, Jackson Life’s vice president and general counsel sent Mrs. Deramus a letter telling her that she had made statements

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about Jackson Life that were “in fact false and defamatory.” He also told her, “these must stop.” The entire text of this letter is as follows: Dear Mrs. Deramus: We have just received a report on your 3/13/97 news conference with Congressman Coburn. Therein you made several statements about Jackson National Life that were in fact false and defamatory; these must stop. You stated that your husband only received his test results after he threatened a lawsuit; that was not the case. No lawsuit was threatened in Mr. Deramus’s March 20, 1991 letter; we sent the results in response because it was the first time we received a written request. Moreover, you stated that JNL intentionally concealed the test results, hoping the policy in force would lapse. This is also patently false; the authorization Mr. Deramus signed in 1988 precluded JNL from releasing the test results without his written authorization. When we received it, we responded. You also stated that JNL released the test results to the Medical Information Bureau and over 650 other companies. That is also false; the test results were reported to the Medical Information Bureaus but only as a non-specific abnormal blood study, which could refer to several blood abnormalities. No other company received this information unless Mr. Deramus applied for insurance with that company, and even then the company would only have learned that an abnormal blood study had occurred. We sympathize with and support your efforts with current federal and state legislative proposals regarding notification of HIV test results. However, your false and defamatory statements do not add to the debate or lend credence to your cause. When lawyers for Mrs. Deramus sought declaratory relief to resolve the factual disputes between the parties, Jackson Life argued that the

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factual disagreement is inadequate to satisfy the requirement for federal courts to exercise jurisdiction over the claim. In the context of declaratory judgments, the plaintiff needs to show that adverse legal interests are of sufficient immediacy and reality to warrant issuing a declaratory judgment. Mrs. Deramus’ attorneys believed that such immediacy existed, based on the aforementioned letter. They believed that the letter was intended to silence her with a threat of a lawsuit. At that point I was asked by counsel for Mrs. Deramus to determine whether the language used in the aforementioned letter created a reasonable apprehension that Jackson National Life Insurance Company showed an intention to bring a lawsuit against Mrs. Deramus. To address this issue I carried out three different linguistic analyses of the letter: topic analysis, speech act analysis, and contextual meaning analysis.

Discourse structure: topic analysis Topic analysis provides a skeletal view of the most salient aspects of the message. When the topic gist is noted, the underlying thrust of the message can be discovered. In order to objectively demonstrate reasonable apprehension of a pending lawsuit, a plaintiff must indicate conduct by the defendant that gave rise to such apprehension. This letter contained seven topics, ordered sequentially as follows: 1. 2. 3. 4. 5.

We got a report of news conference with Congressman Coburn Your false and defamatory statements must stop It’s false that the test results came after a threatened lawsuit It’s false that Jackson intentionally concealed the test results It’s false that Jackson released test results to 650 companies

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6. 7.

We sympathize with your efforts in the legislative process Your false and defamatory statements do not add to the debate

It is apparent from the seven topic chunks here that five of the letter’s seven topics focus on the allegedly false and defamatory statements made by Mrs. Deramus. In doing so, the writer constructed a text that is very much like ones used to try to ward off alleged copyright or trademark infringements. In addition, the topics raised in this letter, the majority of which are charges of false representation, are couched in legalistic language and the document was signed by an attorney, the General Counsel of Jackson National. In the context of an ongoing dispute between the parties and with the publicity surrounding the controversy, it seemed reasonable to Mrs. Deramus that Jackson intended this letter to induce Mrs. Deramus to fear being sued. The Court agreed with this assessment.

Speech acts Speech acts are functional categories that represent the action specified by the language. They are the way people use language to get things done, such as warning, reporting, giving opinions, denying, accusing, requesting, offering, etc. The twelve sentences in this letter contain the following speech acts: 1. 2. 3. 4. 5. 6. 7. 8.

reports a fact accuses, threatens accuses reports a fact reports a fact accuses, reports a fact reports a fact reports a fact

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9. 10. 11. 12.

accuses, reports a fact reports a fact sympathizes accuses

Sentences 2 and 12 are general accusations of both alleged falsity and defamation while accusations in sentences 3, 6, and 9 are accusations of specific alleged falsehoods. The reports of fact in sentences 4, 5, 6, 7, 8, 9, and 10 contain information in support of the accusations. This speech act analysis shows that 10 of the 12 sentences in this letter focus on accusations and support for such accusations. In terms of total words, 210 of the 244 words in the letter deal with accusations and support of them. It is useful here to distinguish between the speech act of advising and the speech act of threatening. Advising has the reader’s benefit in mind and is written from the reader’s perspective (i.e., “If I were you, I would do X”). When given advice, readers still have control to make whatever decision they wish. In contrast, the writer of the threat does not take the reader’s perspective. The threat is controlled by the writer, not by the reader, and a threat, by definition, points to the reader’s eventual detriment. There is no decision to be made by the recipient of a threat other than to comply or take the consequences. Threats, by definition, have negative consequences for the reader if there is no compliance. Threats are facethreatening acts. If the letter had intended to provide advice, the writer could have selected from among several alternative wordings instead of “these must stop” in the second sentence, such as: “If I were you, I’d stop.” “It would be a good idea to stop.” “In my opinion, you should stop.” “Everyone would be better off if you’d stop.”

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If the letter was intended to be a request, the sentence could have selected from among several possible wordings, such as: “Please stop.” “We implore you to stop.” “We ask you to stop.” “It is our sincere request that you stop.” In the above alternatives for advising and requesting, the power remains with the reader to decide what to do. In a threat, however, the power is with the writer of the threat, not with the reader. Threats, like most speech acts, can be made directly or indirectly. The most direct (performative) threat is one in which the word, “threaten,” often occurs, along with an explicit statement of the consequences of not complying with it, as in: “I hereby threaten you that X will happen if you do not comply with my wishes.” In fact, such direct threats are usually avoided, since rules of politeness dictate the moderation and mitigation of face-threatening acts. More commonly used are threats that avoid using the word, “threaten,” and even omit the consequences of non-compliance, encouraging consequences to be inferred by the reader, as in “We will turn the matter over to our lawyers.” Contextual factors, such as the status or occupation of the sender and even the letterhead itself, make it quite possible for readers to infer such consequences.

Contextual meaning Language provides two sources of meaning. One source is the dictionary meaning of words in and of themselves. Since most discourse does not occur with words in isolation, a second source of meaning is the contextual meaning that is derived not merely from referential dictionary definitions of the words but also from the overall linguistic and social context in which the words appear.

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The letter’s predominant focus on accusation provides contextual meaning for the threatening words, “these must stop,” in sentence two. For one thing, the message comes from an attorney who is the highest-ranking legal officer in the company. Additionally, he has business status as a corporate vice-president. When most people get an accusatory letter containing the words, “these must stop,” they have every reason to understand it to have the meaning: “something bad will happen to me if I don’t stop.” It also would be clear that the bad thing that will happen is they will be sued in court by a huge company with great resources, very experienced in litigation, for that is the role that such attorneys are known to play. Mrs. Deramus’ late husband was an attorney, so she was likely familiar with what these words could mean. The clause, “these must stop,” is expressed in a way that encourages the understanding that an immediately following “or else” is implied, especially since it came from the vice-president and highest legal officer of the large company. This is an example of the perlocutionary effect of language use—the particular effect that the writer’s words can have on a reader. Such an effect can stem from the reader’s background knowledge of the subject as well as the reader’s knowledge of the writer of the message, among other things. The word, “must,” in addition, clearly refers to the future and is much more directive than would be various alternatives such as “ought to,” “has to,” or “should.” In this sentence, “must” (a word commonly found in statutes and legal writing) conveys that it is the writer who has the power to threaten or warn, and that the reader had better listen. Coming from an attorney who is General Counsel of a large insurance company, read by a person who knows about legal matters, and containing the directive word, “must,” this sentence can be reasonably understood as a threat for some future legal action if compliance does not ensue. It also contains other words associated closely with legal action, including “therein,” “defamatory,” “lawsuit,” “patently false,”

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“authorization” and “precluded,” making it reasonably clear that a law suit is likely forthcoming. At a hearing before trial, the Court concluded that the letter, in the context of the ongoing dispute along with the publicity surrounding the controversy, could reasonably induce apprehension of a forthcoming lawsuit.

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12

An Employee Sues Her Employer The attorneys and others in this case have asked that the names and other identifiers be anonymized to protect the privacy of the participants. This case description is also different from the others in this book because, after I had done my analysis for the plaintiff, I felt obliged to indicate that it could not fully support the side for which I was working. Sometimes this happens, and when it does, the only fair and ethical thing to do is to report this as early as possible. As I made my analysis for the plaintiff, I tried to follow the advice given by good intelligence analysts—testing more than one hypothesis (Shuy 1990, 117–147; 2006, 29). That is, I tried to anticipate how the language might indicate the best case that could be made for the other side. As it turns out, the best case the data allowed me to make for the lawyers for the plaintiff, Ms. Narango, was not as good as the best case I could make for the defendant, Nature’sHope. Not surprisingly, at that point my relationship with this case ended. Even so, the attorneys with whom I was working were appreciative, for my analysis exposed some of the weaknesses of their case that needed attention. 201

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Rita Narango had been employed in the national division of Nature’sHope, a nonprofit corporation, for approximately six years, most recently as the director of development. Her fund-raising and supervision accomplishments were highly regarded, and she received high positive ratings in her annual evaluations. During her tenure, Nature’sHope increased its combined fund-raising yield by about 600 percent. In 1986, there was an unexpected diminution of revenues, during which time Ms. Narango suffered an intensified level of emotional stress and deterioration of her physical health. In May 1987, she tendered her resignation and reached an amicable severance arrangement with Nature’sHope. Her employer provided two months of paid leave and six months of severance pay upon her departure from the organization. The director wrote her, “I will help you with whatever reference requests come my way,” and he promised to maintain her health insurance through the end of the severance period, unless Ms. Narango got another job outside of Nature’sHope. He also guaranteed to provide severance pay, even if she should begin a new job with the international wing of Nature’sHope and was removed from the payroll of the company’s national division. During the following six months, Ms. Narango took time off and tried to limit her work at Nature’sHope to completing her term as a member of the Board of Directors. During this time she received overtures from various officials of Nature’sHope for her to continue to undertake various fund-raising activities. Consequently, she began to work on a proposal that, if accepted, would have resulted in her employment as a consultant in a new major fund-raising effort. Her pay level was to be substantially greater than the salary she had received in the past. For unrevealed reasons, Nature’sHope declined to go forward with this proposal. Instead, it entered into a three-month renewable contingency contract with her to help expedite the proposal, specify-

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An Employee Sues Her Employer

ing that Ms. Narango would be employed as a consultant at a rate much lower than her former salary. She agreed to this and began this work in March 1988. Her task was to prepare a work plan, to contact search firms, to review fund-raising proposals, and some other things. She first prepared a basic draft of an implementation plan to carry out the fund-raising activities. Nature’sHope then circulated this implementation plan among its national and international affiliates, soliciting their comments. These comments about the plan were memorialized in a memorandum written on February 26, 1989, and forwarded throughout the world by the Nature’sHope communication network. Among other things, this memorandum, submitted by the acting director of fund-raising, made a number of critical comments and expressed concerns about her implementation plan and, almost secondarily, about the contemplated use of Ms. Narango as consultant during the program’s start-up phase. The pertinent parts of the memorandum are as follows: Given the sensitivity of some of the issues involved, we feel it is not appropriate to comment in writing. A better approach would have been to contact the fundraising managers and asked for our comment over the phone rather than asking us to comment on an individual in writing. What we can say is that before you reach a decision on Rita as to a consultant for the international program, we insist that you have a solid understanding of what did and didn’t go well during her tenure as Development Director in the U.S. There were a number of problems which we would be more comfortable discussing with you personally. Since two important areas of the proposal are better integration of fundraising programs and major gifts, we do not feel that these are Rita’s strong suit

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Defamation Disputes in the Field of Business

We feel there is a better approach than hiring Rita to oversee the head-hunting for the Director and will be happy to provide you with the names of at least 3 non-profit fundraising recruiting firms. These people are professionally trained, have objectivity and are well-connected in the fundraising world. . . . Although Rita has valuable fundraising experience, as you know, there were also problems with the fundraising program under her direction. She left a legacy of adversarial relationships throughout the organization and in particular in her own department. Therefore it would be impossible for Rita to play any role in assessing or developing a program that involved the U.S. While this may be unfortunate, this is a reality that we cannot ignore. Another communication that plaintiff ’s lawyers believed to be defamatory, although it was a bit more circumspect, gave much of the same information. It was written on March 5, 1989, and was signed by the director of the national division. Its main focus was on the need to hire a new fund-raising director, and it included the names of a number of potential headhunters. With regard to Ms. Narango, the letter states: “We also have strong opinions about your recommendation that Rita Narango be hired as a consultant for program start-up as described in your implementation plan.” After raising rhetorical questions relating to the nature of the decision-making process used by Nature’sHope, the pertinent part of the letter says: As you know Rita contributed much to the growth and expansion of NH nationally and around the world. That contribution has never been questioned here in the U.S. . . . However, you can’t ignore the fact that there is another part to Rita’s legacy. There were management problems in her department, most of her senior staff were alienated, systems analysis of programs and tracking performance were non-

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An Employee Sues Her Employer

existent, and the relationship with others wasn’t being managed with enough scrutiny or detachment. For us, her track record raises serious questions about whether she’s the best person to perform the consultancy that you describe. Someone with some objectivity and good international fundraising connections should coordinate headhunting. . . . Further we don’t believe that Rita can advise you objectively on anything to do with the U.S. program. In fact, having Rita in this role would be a step backward for the U.S. division. Having Rita in this role would present serious and unacceptable management problems. We urge you to spend some time with the national development staff to understand why this is the case and to get a sense of the progress that has been made in that department in last year. Attorneys for Ms. Narango charged that as a direct result of these widely distributed memoranda, she was unable to find employment or work as a consultant in the field of fund-raising, despite numerous applications and several interviews that took place when she was one of the few candidates receiving serious consideration. These lawyers further alleged that her superiors at Nature’sHope previously had never criticized her competency, character, and professionalism, but nevertheless they willfully, recklessly, and negligently disseminated the content of the memoranda. Her attorneys also claimed that the information in the memoranda was false, misleading, and defamatory in nature, based on its content and implications of her alleged failings in its explicit statements in those memoranda. The attorneys believed that Nature’sHope, in doing this, had “acted in bad faith and/or with malice,” with no grounds to believe that the criticisms were true. Her reputation as a professional fund-raiser was said to be intentionally and severely damaged by these memoranda that cast her in a poor light and “exposed her to scorn, hatred, contempt, ridicule and embarrassment.”

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Defamation Disputes in the Field of Business

I was called by the lawyers for Ms. Narango to address two questions likely to be relevant at a hearing on summary judgment: (1) Can linguistic analysis help establish the existence of malice in one or both communications? (2) Can linguistic analysis help in establishing the intended and/or likely effect of the communications on Ms. Narango’s professional and personal reputation? The analytical procedures that seemed most useful were topic analysis, speech act analysis, inference analysis, and an analysis of what might be considered malicious language.

Discourse Structure: Topic Analysis The skeletal outline provided by the topics raised in the two memoranda are as follows: Topics in the February memorandum: 1. Here are our comments 2. Our general concerns 3. We should hire a new director before we engage Ms. Narango 4–8. Reasons for not hiring a consultant first 9–10. Reasons for not hiring Ms. Narango 11. Reasons for not hiring a consultant first (recycling topics 4–8) 12. The role of the national office in this 13. Her proposal says nothing about merchandise and special projects 14. Strong objections to the plan to hire consultants One use of topic analysis in such cases is to determine the quantitative focus of the topics raised in the texts. In this February memorandum, representing the views of the national and international associates,

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An Employee Sues Her Employer

only 2 of the 14 topics (topics 9 and 10) concerned the qualifications of Ms. Narango. The major thrust (8 of the 14 topics) was to object to the use of consultants in general, while 2 topics objected to the proposed implementation plan. The other 2 topics were formulaically introductory and general. A similar pattern of topic initiation occurred in the March 5 memo, written by the national director in response to the February 26 memorandum that represented the ideas of the national and international affiliates. Topics in the March 5 memorandum: 1. 2.

Our personal concerns Agree that it was wrong to hire that company to write the implementation plan 3. The need to hire a new director first 4. The new director should develop the plan 5. Ms. Narango is not the right person to lead the project 6. Agree that your interests should not be ignored 7–15. Agree about criticisms of the idea of hiring consultants 16–18. Criticisms of Ms. Narango 19–23. The needs of the job description in question 24. Closing In this memorandum, 4 of the 24 topics concern criticisms of Ms. Narango (topics 5, 16, 17, and 18). Fourteen topics concern the problems of using consultants of any kind. One topic agreed that the choice of the company hired to write the implementation plan was unfortunate. Two topics were the general formulaic introduction and closing. It appeared to be clear that the two memoranda were primarily intended for broader purposes than to criticize Ms. Narango. This

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does not mean, of course, that in the process they did not defame Ms. Narango, but only that this was not their primary goal, at least as revealed by the bulk of topics they introduced. Further, it also appeared that the writers of the memoranda couched at least some of their criticisms of Ms. Narango as opinions:

“We don’t feel . . . that integrating fund raising and major gifts is . . .”

“we do not feel that these are Rita’s strong suit.”

“We feel that there should be another approach.”

Nevertheless, the writers state as fact that there were problems under her direction and that she left a legacy of adversarial relationships. These will be dealt with later.

Speech Acts A second way to view the memoranda is through the analysis of the speech acts used in the texts. Building on the structure of the topics noted above, the speech acts found in the topics relating to Ms. Narango are shown separately from the topics relating to the use of consultants in general and to objections to the proposed implementation plan (tables 12.1 and 12.2). 208

An Employee Sues Her Employer Table 12.1 Speech Acts in the February 16 Memorandum topics 1–8 and 11–14 (about consultants and the implementation plan)

topics 9–10 (about Ms. Narango)

opinions report facts directives offers accusations request info. objecting

18 16 0 4 1 6 1

7 4 1 1 0 0 0

Table 12.2 Speech Acts in the March 5 Memorandum topics 1–15 and 19–24 (about consultants and hiring)

topics 16–18 (about Ms.Narango)

opinions report facts directives offers request info. warning agreeing request action evaluating

11 33 2 2 7 2 2 3 2

8 3 0 0 3 0 0 1 1

This breakdown of speech acts was an effort to determine whether or not the memoranda writers reported opinions or reported facts in different ratios in their topics relating to Ms. Narango as opposed to the other topics. Although some differences can be found, no important findings emerge. The writers did indeed refer to 209

Defamation Disputes in the Field of Business

Ms. Narango with opinions in some instances. The alleged fact statements will be dealt with later. This analysis also shows that negative speech acts (accusing, giving directives, warning) occur more frequently in the topics of the memoranda that do not focus on Ms. Narango (five) than in the topics relating to Ms. Narango (one). This, of course, does not mean that Ms. Narango was not defamed, but it shows that the majority of the negative speech primarily concerned matters not relating directly to Ms. Narango.

Conveyed Meaning: Inference Much of the text suggests potential inferences that can be made from otherwise fact or fact-like statements. The following is a list of such inferences found in the two memoranda (tables 12.3 and 12.4). Language can be either completely explicit or, commonly, it can leave room for readers to infer other meanings. Explicit criticisms, accusations, threats, or warnings are inherently negative, but being less explicit leaves wiggle room for different interpretations or inferences, whether intended or not. When writing inexplicitly, writers are at least somewhat protected, simply because their statements do not explicitly say what readers might be able to infer. The February 26 memorandum from the affiliates offers the opportunity to infer many criticisms of the director’s actions (or lack thereof ), of the consultants, and of Ms. Narango. The March 5 memorandum from the director to the affiliates also offers the opportunity to infer many criticisms of the affiliates as well as of Ms. Narango. As it turns out, however, most of the dispute is between the affiliates and the director. Interestingly, the director ignores the fund-raisers’ major issue of using consultants, over which he apparently had sole discretion.

210

Table 12.3 February 26 Topic 6 6 9

9

9

10 10

Statement It’s not clear to us why you’ve chosen to pick consultants We would be happy to provide the names of other firms Before you reach a decision on Rita . . . we insist that you have a solid understanding of what did and did not go well There were a number of problems which we would be comfortable discussing with you personally; you’re wrong to ask us to commit them in writing These people [our suggested recruiting firms] are professionally trained, have objectivity, and are connected in the fundraising world There were problems with the fundraising program under her direction She left a legacy of adversarial relationships

Potential Inference You did this deliberately. You don’t know them. Your understanding is not solid and you didn’t know that things did not go well. These problems were created by Rita.

The recruiting firm you suggested is less professionally well trained and less well connected. She was responsible for these problems. She caused them.

Table 12.4 March 5 2 5 6

17 17 17

17 18

We would like to believe that request . . . was sincere There are real issues here which you need to know about and grapple with If you can get beyond all the Nature’s Hope and consultant finger-pointing to what really happened… [Rita’s] contribution has never been questioned here For us, her track record raises serious questions Someone with objectivity and good international fundraising connections should coordinate the head-hunting Where is the objectivity? Object to the insider dealing inherent in this contract

I’m not sure that you were sincere. You don’t know about them and haven’t grappled with them. You haven’t gotten beyond this.

It should have been questioned by the national office. You should have raised them. Rita does not have good connections and coordination skills. She is not objective. Rita is involved in insider dealing.

An Employee Sues Her Employer

In terms of Ms. Narango’s cause, it would have been more helpful if the negative inferences in these memoranda were focused mostly on her or were limited to her alone, but this was not the case. Apparently there was a good deal of simmering conflict within the organization, and the issue of Ms. Narango was only a part of it. Like the topic and speech act analyses, inference analysis suggests that she was not the central focus of the battle. Malicious language As noted in other chapters of this book, malicious language can be characterized as having an increased emotional drive that makes alternatives either difficult or impossible to consider. Such issues can become black vs. white, right vs. wrong, and good vs. bad, with no continuum of alternatives. Emotionally charged written language contains some, but not all, of the characteristics of emotionally charged spoken language. In speech, emotional charging often leads to fewer syllables per word and fewer words per sentence. Sentences tend to be simple rather than complex. Speech errors increase, including such things as false starts, repetition, repairs, pauses, and grammatical errors. Emotionally charged written language has fewer of these, but sometimes it does contain strong evaluations (complaints and negative opinion ratios as well as pejorative statements), sarcasm, figures of speech, and rhetorical questions. In order to address the issue of whether or not the language of the memoranda was malicious, these written language features were considered. Figures of speech A text containing emotionally charged language can often contain an increased use of figures of speech in the parts of a text where the emotion rises. These manipulate, stretch, or alter the forms of language from one domain to another. There were very few of these in the two memoranda (tables 12.5a and 12.5b).

213

Defamation Disputes in the Field of Business Table 12.5a Figures of Speech in the February 26 Memorandum in topics not about Ms. Narango

in topics about Ms. Narango

none

10 legacy of

Table 12.5b Figures of Speech in the March 5 Memorandum in topics not about Ms. Narango

in topics about Ms. Narango

2 writing them off 3 pried away 4 set the tone 5 grapple with 6 finger-pointing

17 legacy of 18 step backward 18 insider dealing

Comparison of the use of figures of speech in the passages relating to Ms. Narango with those not relating to her indicates that there is little quantitative difference between them. The analysis of malicious language does not work exclusively in her case. Pejorative terms Pejorative terms are ones in which the most negative semantic status of a word is used. There were also very few of these in the memoranda. They are listed below in relation to the topics in which they occur (tables 12.6a and 12.6b). Comparison of the quantity of pejorative terms in the passages relating to Ms. Narango with those not relating to her shows that there is no quantitative difference. If the writers were emotionally charged when they used pejorative words, they appeared to use them no more when referring to Ms. Narango than they did on other topics unrelated to her.

214

An Employee Sues Her Employer Table 12.6a Pejorative Terms in the February 26 Memorandum in topics not about Ms. Narango

in topics about Ms. Narango

none

10 legacy of

Table 12.6b Pejorative Terms in the March 5 Memorandum in topics not about Ms. Narango

in topics about Ms. Narango

2 writing them off 6 finger pointing

17 legacy of 18 insider dealing

Sarcasm Sharply mocking or contemptuously ironic remarks that intend to wound indicate a heightened emotional state and are sometimes found in malicious language. But they too are not frequent in these memoranda (tables 12.7a and 12.7b). The use of quotation marks around a word is one indication that the writer is being sarcastic. As noted in other cases discussed earlier, similar expressions might include “so-called,” or “would-be.” Here we see that the use of sarcasm was more common in references to the topics of consultants and the implementation plan than to Ms. Narango. Rhetorical questions Questions to which the answers are obvious are also sometimes found in emotionally charged language. There were only two of these in the two memoranda, both on March 5:

215

Defamation Disputes in the Field of Business Table 12.7a Sarcasm in the February 26 Memorandum in topics not about Ms. Narango

in topics about Ms. Narango

none

10 legacy of adversarial relationships

Table 12.7b Sarcasm in the March 5 Memorandum in topics not about Ms. Narango

in topics about Ms. Narango

2 “political” 5 “appropriate” 5 “political” 16 “appropriate candidate” 22 “executive”

none

Topic 8: Aren’t these some of the very areas that the comprehensive assessment would cover? Topic 17: Where’s the objectivity? The question in topic 8 is about the implementation plan, not about Ms. Narango. The question in topic 17 relates directly to Ms. Narango’s objectivity, or lack thereof, but it is critical rather than defamatory. The comparison of passages not about Ms. Narango with passages relating to her shows little to support a charge of defamation. This feature of emotionally charged language is no more indicative of a focus on her personally than are the other characteristics of potential defamation noted above. Although there is some emotionally charged language about Ms. Narango in these two memoranda, there is at least an almost equal amount of such language relating to other topics not directly related to her, such as the implementation plans

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and the consultants. Ms. Narango does not appear to be particularly singled out. I concluded that topic analysis and speech act analysis seemed to favor the defense, not the plaintiff, Ms. Narango. Inferential criticism and malicious language (as revealed by emotional language) seemed equally unhelpful to her case. At this point in my analysis I had no choice but to tell the attorneys for Ms. Narango that I did not feel that my linguistic analysis could support their claim that she was being defamed. A better case might be made for her by comparing the very positive evaluations in her employee file with the charges made, however indirectly, in the two memoranda. Whether or not it would have been useful was moot, since this data was not given to me for analysis.

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13

A Corporation Files a Lawsuit against Its Union Grinnell Fire Protection Systems Company is one of the largest employers in the United States engaged in the manufacturing, installation, and maintenance of automatic fire protection systems. A legal duel between Grinnell and the Road Sprinkler Fitters Union 669 began in April 1994, when the previous labor agreement between Grinnell and the union expired. Grinnell’s final negotiated offer for a new contract included wage cuts of about 20 percent and cancellation of certain benefits programs. Naturally, the union was not pleased, and a strike soon followed. The union claimed that during the period when its union workers were out, Grinnell immediately began hiring replacement workers who were unskilled. The union then contracted with Direct Response, Inc., a public relations firm, to produce letters, handbills, and direct-mail pieces describing and exposing this situation. The union also produced a paid commercial announcement, aired on radio stations throughout the country, declaring: “Grinnell’s skilled 219

Defamation Disputes in the Field of Business

fire protection workers have walked off sites in your area leaving systems designed to save your life in the hands of workers with little or no experience. The question for you is does that sprinkler above your head even work?” These documents, along with others, were sent to competitors, fire departments, general contractors, residents of buildings, architects, engineers, and others in many states. Grinnell responded to these widely published attacks with a lawsuit, part of which claimed that the union had made false and malicious defamatory statements about Grinnell. Lawyers for Grinnell called on me to examine six documents produced and disseminated by the union to see if I could determine whether linguistic analysis could assist with the issues of opinion vs. fact and the potential negative impact on Grinnell that the documents were likely to have created. One document was a one-page handbill placed at locations where Grinnell had installed fire protection equipment. The relevant part of it follows: To Occupants at These Premises The automatic fire protection system at this location, which you depend upon for your life and safety, was installed and/ or is being maintained by Grinnell Fire Protection Systems, Inc., a subsidiary of Tyco International. Grinnell, one of the oldest and largest companies in the fire protection industry, once enjoyed an excellent reputation for quality installation primarily because of its highly skilled, experienced and well-trained workforce. Since April of this year, Grinnell lost its skilled workforce due to a labor dispute which Grinnell caused by its violation of federal labor law and its attempt to destroy the existing health care system for employees in the fire protection industry. Grinnell has attempted to substitute untrained and inexperienced

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A Corporation Files a Lawsuit against Its Union

strikebreakers for its previously skilled workforce and hopes to increase its profits by doing so. Although its profits may go up in the shortrun, the quality and reliability of the fire sprinkler system at this location, which you and your family rely upon, will be adversely affected. Grinnell and its parent company, Tyco, made a calculated (and cold-blooded) decision to trade off the health care of its workers and the quality of its installations and repair in return for increasing its already ample profits. Those who live in buildings protected by a Grinnell fire protection system may also be victim of this decision by suffering loss of property or even life. Demand that your building owner replace Grinnell with another fire protection contractor that employs a skilled and experienced workforce. Do it now before it’s too late. We are not seeking to induce any person to cease work or refuse to make deliveries. ROAD SPRINKLER FITTERS LOCAL 669 At approximately the same time, the union distributed another handbill, this one addressed to workers in buildings protected by Grinnell Systems. It contained all of the same language as the previously quoted handbill, except for the following substitution: “Those who work in buildings protected by a Grinnell fire protection system may also be a victim of this decision by suffering loss of property or even life.” The following large-print direct mail piece was also widely distributed at that time: Something you may not know may have made your job a lot more dangerous Grinnell is sending replacement workers to buildings in YOUR area, many of whom have little or no experience in

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Defamation Disputes in the Field of Business

fire sprinkler installation or repair. It takes only one bad installation of a sprinkler system to spell the difference between life and death . . . On April 14, 1994 Grinnell imposed its so-called “final offer,” which entailed wage cuts of over 20% and the cancellation of all existing national benefits programs, and then refused to negotiate further with the union. A nationwide strike and unfair labor practice charges against Grinnell followed. Grinnell immediately began hiring permanent replacements and proceeded to continue work originally scheduled to be performed by skilled union sprinkler fitters. This direct-mail piece then described four separate instances in which replacement workers in the past had failed to prevent accidents: at Occidental Oil and Gas Corporation in Tulsa, at J.C. Penny’s in Oklahoma City, at Venture Store in Edmond, Oklahoma, and at the Boomer Lake Power Station. The text then continues: If buildings in your area are using Grinnell for fire protection, it’s important you take a closer look at just who is doing the work. What happens when the company hired to prevent fires causes them? Grinnell may be putting you and people you have been sworn to protect in danger. And you have a right and an obligation to put a stop to it. The union also sent out another large-print direct mail piece to contractors, saying: If you’re a contractor using Grinnell and expecting the same quality as when Grinnell employed skilled union sprinkler fitters, it’s time to take another look at Grinnell and find out whose hands your project and your customer’s safety are in. If Grinnell is still charging you the same as when it had skilled union sprinkler fitters, and you’re expecting the same degree of workmanship, YOU’VE BEEN HAD! 222

A Corporation Files a Lawsuit against Its Union

This direct-mail piece then briefly reviews this history of the strike, followed by: “Grinnell is sending strike replacement workers to your job site many of whom have little or no experience in fire sprinkler installation or repair.” Next, this direct-mail piece cites three of the same “cases in point” concerning replacement workers who were said to have caused serious problems (Occidental Oil and Gas, J.C. Penny, and Venture Store), followed by:

“Grinnell is determined to change the face of the fire sprinkler industry FOR THE WORSE …”

“Forcing experienced union fitters out of jobs—resulting in substandard installations …”

“Creating a monopoly—resulting in no competition AND HIGHER PRICES TO CONTRACTORS”

The union also distributed widely a postcard saying: If you think Grinnell is the same company as when it had skilled union sprinkler fitters—Grinnell is determined to change the face of the fire sprinkler industry FOR THE WORSE, forcing experienced union fitters out of jobs, resulting in sub-standard installations, creating a monopoly resulting in no competition AND HIGHER PRICES TO CONTRACTORS. 223

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A one-minute radio broadcast heard on September 24, 1994, in the Oklahoma City, Oklahoma area, said the following: If you live or work in a highrise building in Oklahoma the following information could save your life. Next time you’re there, look up. If you find a sprinkler head above you and it makes you feel more secure, you may be dealing with a false sense of security. Because on April 13th Grinnell Fire Protection Company, the largest manufacturer, installer and maintainer of automatic fire protection systems, refused to negotiate in good faith with their union, Road Sprinkler Fitters 669. What does that mean to you? Skilled fire protection workers have walked off sites in your area, leaving systems designed to save your life in the hands of workers with little or no experience. The question for you is does that sprinkler above your head even work. Contact your supervisor and find out if the sprinkler system in your building has been installed or serviced by Grinnell Fire Protection and request to have a qualified union sprinkler fitter check to see if the system even works. It could save your life. After reviewing these documents, I determined that an analysis of the discourse structure, speech acts, inflammatory language, and attributions of intent would be the most useful linguistic tools to use.

Discourse Structure: Themes These handbills, postcard, direct-mail pieces and radio broadcast contain three themes in common concerning Grinnell. First, the union states that Grinnell had hired inexperienced replacement workers in place of skilled union labor. Second, the union says the replacement workers are performing substandard installations. Third, the union states that current Grinnell workers are endangering the

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A Corporation Files a Lawsuit against Its Union

lives and property of the occupants of the buildings in which Grinnell has performed installations.

Speech Acts: Reporting Fact vs. Giving Opinion These three themes allegedly contain facts that are capable of being independently verified, but not, of course, by linguistic analysis. Concerning the theme of Grinnell’s use of non-union labor, for example, Grinnell’s lawyers discovered that in some areas of the county, settlements had been reached and union workers had returned to the job. In other strike areas, Grinnell continued to use union labor even after the strike began. Approximately 20 percent of the union members crossed over and continued to work for Grinnell during the strike. In other strike locations, many of the replacement workers were skilled and experienced workers. Factually, therefore, the generalizability of the first theme is questionable. Concerning the theme that the replacement workers were performing substandardly and endangering occupants, evidence other than linguistic analysis also would be needed. It is beyond the scope of linguistics to determine whether or not the installations and maintenance done by Grinnell’s replacement workers were substandard. Factual proof would have to come from other sources, such as affidavits of people knowledgeable about the union’s four illustrations concerning alleged damage caused by replacement workers. In each of these, Grinnell’s attorneys brought evidence to show that the union’s allegations were not true. Damage did occur in these sites, but it was caused by vandalism, by other mechanical problems in the buildings, or by the owners’ own errors, such as pointing out the wrong sprinkler systems to Grinnell’s repair workers.

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Linguistic analysis of the theme of endangerment to the lives and property of those who lived or worked in buildings now being maintained by Grinnell workers was shown to have been represented as fact by the union, not as opinions. It is a matter of constitutional law to determine whether a statement is a fact or an opinion, since most expressions of opinion are protected by the First Amendment. In its briefs, the union argued that the alleged defamatory statements in these documents represented its opinions, and were not represented as factual. I found that there is nothing in the specific words used by the union in its handbills, postcards, direct-mail pieces, or radio broadcasts that would give a reader or listener reason to believe that all the statements were the union’s representation of opinions. Facts relate to things that have actual existence, things that are done, that have objective reality. If they have already happened, they are usually represented in the past tense. If they are states of being, they are usually represented in the present tense. Opinions represent the views, judgments, or appraisals formed in the sender’s mind about a particular matter. They usually represent a belief stronger than an impression but less strong than positive knowledge, and are usually concerned with the present or future time. Obviously, opinions can also be expressed performatively, in terms that indicate as much, such as “it is our opinion that,” “it seems that,” or “it appears that.” The major statements of fact or alleged opinion of the text in these six documents can be represented as follows: The third and fourth columns of table 13.1 above indicate the statements that the union claimed to be opinions rather than facts. Some are couched as future possible events that could happen. Some are representations of the unverified mental state of the sender. Some represent both possible future events and the unverified mental state of the sender. What is clear, however, is that none of the future or

226

Table 13.1 1. Letter to occupants: event substituted strikebreakers hopes to increase profits you’ll be affected trade health for profits already has ample profits you may lose life

past

verifiable

X

X

X

future

unverifiable

X X X

X X X

X

X

future

unverifiable

X

X

X

X

X X

X X

X

2. Letter sent to owners: (same letter, same analysis as above) 3. Direct mail piece event job may be more dangerous workers, no experience bad installation, death imposed final offer wage cuts 20% canceled benefits refused to negotiate strike followed used unskilled workers company may cause fires may put you in danger

past

verifiable

X

X

X X X X X X

X X X X X X

(continued)

Table 13.1 (continued) event

past

verifiable

future

unverifiable

past

verifiable

future

unverifiable

X X X X

X X X X

past

verifiable

future

unverifiable

X

X X

X

X X

X X

X

X

4. Direct mail to contractors event still charging same you’ve been had sending replacements have no experience 5. Postcard event had unskilled workers will change face of industry 6. Radio could save your life have false sense of security refused to negotiate in hands of unskilled

X

X

A Corporation Files a Lawsuit against Its Union

present statements in these columns are accompanied by words that might indicate that these are opinions, such as “it appears that,” “it seems that,” or “it is our opinion that.” Even statements couched in conditionals, such as “the job may be more dangerous,” are not couched as opinions, such as “we think that the job may be more dangerous.” The union’s documents therefore, contained many statements of facts about the present or future mental state of Grinnell that are represented clearly as facts rather than opinions.

Malicious Language: Inflammatory Expressions Malice is the desire to harm others or to see others suffer. In law, it specifies the intent to injure others without just cause or reason. Malicious language includes words and expressions that arouse emotion or anger. In other words, they inflame. In the six documents, the following inflammatory words and expressions appear (emphasis added):

“Grinnell . . . made a cold blooded decision”

“attempt to destroy the existing health care system for employees”

“Those who live in buildings . . . may also be a victim”

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“by suffering loss of property or even life”

“Do it now before it’s too late”

“If Grinnell is still charging you the same, you’ve been had”

“Company hired to prevent fires causes them”

“does that sprinkler above your head even work?”

“Grinnell’s violation of federal labor law”

“hopes to increase its profits by doing so”

“quality and reliability will be adversely affected”

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“attempt to destroy the health care system”

“trades health care system for profits”

“Grinnell refused to negotiate in good faith with the union”

“creating a monopoly resulting in no competition”

These and other expressions depict Grinnell as a cold-blooded monopoly that violates labor laws and tries to destroy its own health care system. Its goals are only to make profits and cheat contractors (“you’ve been had” ). The company is now willing to risk making victims out of people who may die because they live or work in buildings with Grinnell systems that cause fires rather than prevent them. The quality of Grinnell’s fire prevention systems is no longer reliable since its equipment may not even work. The documents also use sarcasm that can inflame. One of the common visual methods of indicating sarcasm is through the use of quotation marks that can convey much the same venom that intonation communicates in spoken language. Such sarcasm can be seen in the expression “so called,” when referring to Grinnell’s final offer during negotiation with the union.

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Attributions of Intent People can get into trouble by attributing intentions to what other people say. Nobody can get into the minds of writers or speakers to the extent that they know what they intended. Because of this, such intentions can be either incorrectly or correctly inferred. Incorrectly implied intentions can be very inflammatory, and they can be found in disputes of most types. In these documents the union attributes the intentions of Grinnell, all negatively, as follows:

“Its attempt to destroy the existing health care system”

“hopes to increase its profits”

“trades health care system for profits”

“made a calculated (and cold-blooded) decision to trade off the health care of its workers and the quality of its installations in return for increasing its already ample profits”

“Grinnell is determined to change the face of the fire sprinkler industry . . . creating a monopoly”

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One issue in this case was whether the inflammatory language, sarcasm, and attribution of intention found in the union’s text rose to the level of actual malice. The attorneys for Grinnell argued that these statements made by the union lower Grinnell in the esteem of a substantial and respectable group of people, call into question Grinnell’s ability to perform in a safe and effective manner, and charge Grinnell with creating hazardous conditions, all defamatory acts.

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14

So Are We Making Any Progress? The details and practice of the ritualistic duel have changed dramatically over the centuries. The motivations, need for proof and verification, and final resolution are now very different. But today we still fight over some of the same offensive language, sometimes even over the same barbs that enraged our ancestors. The same types of notices, demands, apologies, negotiations, and retractions that satisfied their disputes still can work to ward off defamation lawsuits today, now accomplished by lawyers rather than by the seconds used in the days of dueling. But one factor remains constant—careful analysis of the language is still very central to the disputes. So today’s society has evolved, and we now conduct our duels verbally in the courtroom. New rules of honor have replaced the Code Duello with defamation laws. But have we made any progress? Some critics wonder: Maybe the Founding Fathers would be proud of us. Maybe they’d feel we’ve made great strides in honorable behavior. 235

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On the other hand, maybe they’d feel we’ve degenerated into a nation of greedy poltroons without spirit or conviction, unworthy to meet a true gentleman at ten paces. (Holland and De Sève, 1997, 4) The cultural values of our early elitist ancestors stressed personal honor over all else, including life itself, even though, strangely enough, their duels were sometimes motivated by little more than gross personal ambition. The cultural values of the modern egalitarian society are more about righting wrongs to a commercially or socially based reputation, with “satisfaction” of such courtroom dueling now found in financial awards. Comparison of bloody duels with legal action makes it pretty clear that defamation law brings more civilized and less brutal solutions to conflicts over honor, reputation, and resources. So maybe this is one indication that humanity is making at least some progress. Those whose defamation suits against the media finally reach trial often prevail, but many of these results are then overturned on appeal, suggesting that lawyers on both sides may need help in analyzing and presenting their cases, that jurors may be poor judges of justice, that the First Amendment overly protects the media, or some combination of all three. Perhaps more sobering is the fact that this process involves thousands of hours in lawyers’ offices and courtrooms and almost inestimable expenses to both sides, a factor suggesting the need for some streamlining or improvement. How can this improvement be accomplished? One answer might be to train lawyers in linguistics so that they can do the required linguistic analyses themselves. Immediately, however, a problem looms about the length of time that this would add to law school training and, as critics are quick to observe, this idea does not address the fact that thousands of lawyers are already in practice. A better answer is for the field of law to make more and better use of linguistic experts,

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both in their preparation for cases and in using those linguists as consultants or as expert witnesses. Trial courts have been cautious about admitting linguistics and other social sciences into the courtroom, perhaps because, as Doyle (1993, 244) observes, it “threatens to destabilize a portion of their caseload which might once have been thought to be pretty well under control.” In short, using linguistic experts can complicate a trial and add still one more thing that the court has to consider. But we are where we are. Defamation laws, imperfect or not, exist to help us right the wrongs brought by others against us. As the cases in this book indicate, people initiate legal action over damage to their reputation and character (chapter 6), over their lack of opportunity to rebut an attack on them (chapter 5), over the media’s accusation that they are guilty of a crime (chapter 4), over the territory considered legitimate and proper for their professional areas of work (chapters 8 and 9), and, perhaps most of all, over attacks that allegedly impede or ruin their opportunity to earn an income or to hold public office (chapters 3, 7, 9, 10, 12, and 13). And there are probably other reasons to sue for defamation as well. One thing remains constant from the earlier days when codes of honor prevailed—it is the language used that causes disputes, and often it is the language that can be analyzed and used to resolve them. Since language is so central in defamation cases, the advantage of additional use of linguistic analysis looms large. This book shows how linguistics played a role in the eleven cases of slander and libel where dueling over words is found in what was said, how it could be understood, and what consequences it might have. Nobody gets killed or maimed in the modern progress beyond the age of dueling, but reputations can be shattered and, more significant these days, large amounts of money can be won or lost. As noted earlier, dueling and defamation lawsuits are different in many ways. Aside from the moral and legal issues, dueling did not

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always lead to anything closely approximating justice. Sometimes the winner of a duel was actually the offending party, hardly a tribute to justice. And duels often resulted in the death or maiming of innocent persons, whether the accused or the accuser. Perhaps even worse, those eighteenth- and nineteenth-century duels prematurely cut down some of the country’s most promising and influential people, depriving their citizens of effective future leadership. The greatest difference, though, is that dueling was simply inefficient as a means of settling disputes. So is the legal arena now more efficient than dueling to settle defamation disputes? It certainly is, but even more so when lawyers call on the resources that are available to them. When they sense a need, lawyers usually have no problem calling on experts in various sciences, engineering, medicine, and other specializations. So why have they been slow to make use of specialists in language? Possibly because they haven’t thought of it or because linguists haven’t publicized their availability. Linguistics is an invisible field to most people, and even when lawyers and judges have actually heard of the field, they often either misunderstand it or have little or no idea what it really means. One problem may be that linguists haven’t done a good enough job of presenting their field to others, including defamation lawyers. And so I repeat that one of the purposes of this book is to show lawyers how the tools of linguistics can help them with their defamation cases—how this field can help untangle the language of alleged or real libel and slander evidence. Lawyers are very intelligent, well trained in law, and flexible enough to learn new things quickly, but they are not usually aware of the intricacies of language that might greatly help them. In most cases, they have little or no time to study linguistics themselves. So it would be efficient for them to call on linguists who specialize in these things. The eleven cases described in this book show how linguists can help them from the very beginning,

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from issues arising out of the accuracy of the representation of data, to the way language can be analyzed, all the way to the deposition and courtroom trial, where the analysis is presented. First, linguists can make sure that the language evidence, especially in slander cases, is accurately represented. Linguists are trained in phonetics and are good at listening to language and noting small features that can make huge differences in a case. Since much of written and spoken language in defamation cases is loosely (or poorly) expressed, linguists can be helpful in analyzing and explaining the grammatical references that sometimes get lost or confused in a maze of sentences or clauses. Everything can depend on whether noun plurals or verb third-person singulars are noticed and understood properly. The grammatical scope of certain expressions can make a huge difference if it is effectively and convincing revealed, presented, and understood. Many non-linguists have never even heard of speech acts or conveyed meaning, but these topics are central in current linguistic study and they provide a truly helpful way of looking at the language of defamation cases. As I’ve said over and over again, nobody, including linguists, can get into writers’ or speakers’ minds to know for sure what their intentions or understandings are, but certain analytical tools, such as speech acts and discourse structure, can help reveal important language clues that are virtually hidden from those who don’t know about speech acts, pragmatic meaning, and discourse analysis, all of which can be used successfully to analyze language evidence. Therefore, it seems crucial to add the professional vision of linguistics to the professional vision of law. As noted earlier, communication is made up of a sender, a message, and a receiver of that message. Here the advice that Tiersma (1987, 303–350) gives in his Texas Law Journal article, cited throughout this book, is central. We can always ask the defendants who sent the allegedly defamatory message what they thought they meant, but

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even if we believe them, they are not very likely to say anything intentionally that might cause them to lose their case, so asking them would not prove very helpful. At any rate, whatever they say would be self-report data, not the best evidence one could hope for. Alternatively, we can ask the receivers of that message, the plaintiffs who consider themselves defamed, what they thought the message meant. But we already know this, since they brought the defamation case in the first place. And they too might be expected to have a somewhat slanted, if not biased, view of the text’s meaning. Or we could survey a group of outsiders (surrogate receivers) to discover what they thought was the meaning of the text in question. This might be somewhat helpful if the survey was well planned, contained the proper questions, was well executed, and could be shown to represent the appropriate receivers. This leaves the message itself as the best evidence in a defamation case, one of Tiersma’s main points. The most obvious aspect of defamatory language is the message itself, the words and expressions used in allegedly defamatory documents and speech. But even this can be misleading if it is not contextualized in the entire framework of the language being used. Linguists have the resources and ability to apply their knowledge of the way language works in ways that can help lawyers in their defamation cases. To this point it may seem that the purpose of this book is only to help lawyers find linguists to assist them with their defamation cases, but that is not all there is. Readers will note that in these eleven cases I have made available a large amount of the actual language data used as evidence here. There is a purpose to this—that of providing actual data for teachers and students to work with themselves, along with my own analyses, either to use as a model or, more important, to improve upon or even disagree with. Students of linguistics around the world are currently developing a strong interest in how to apply their linguistic knowledge and tools to problems in the real world. Their interest in educational applications has been around a long

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time, including language learning, language teaching, and language testing. But today’s linguists are expanding their horizons to other fields that have been overlooked or ignored in the past, such as the crucial communication problems in medical settings, advertising, diplomacy, politics, and, as this book tries to show, defamation cases. The actual evidence in law cases is often hard for students and teachers to get hold of, so this book tries to help a bit with this problem. Our evolution from settling disputes of honor and reputation with bloody duels to resolving such conflicts with defamation law is not the only progress evident. Linguistics is also making progress with the realization that it has an obligation to share its expertise with other fields, including law. What may seem less clear is that this obligation is actually also a great opportunity for linguists. As noted earlier, analyzing the language evidence in defamation cases can provide an intellectual feast at the table of real-life events, where linguists can apply their tools and skills to fascinating types of data and, perhaps even more important, to move the field along and to discover even better tools and theories. And that would be progress indeed.

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References Cited

Austin, J. L. 1962. How to Do Things with Words. Cambridge, MA: Harvard University Press. Bach, K. and R. Harnish. 1979. Linguistic Communication and Speech Acts. Cambridge, MA: MIT Press. Doyle, James M. 1993. “Help for Innocent Ears.” The Journal of Criminal Law and Criminology, vol. 84, no. 1, 239–248. Durant, Alan. 1996. “Allusions and Other ‘Innuendo’ Meanings in Libel Actions: the Value of Semantic and Pragmatic Evidence. Forensic Linguistics, vol. 3, no. 2: 195–210. Fraser, Bruce. 2001. “An Account of Innuendo,” in Robert Harnish (ed.), Perpectives on Semantics, Pragmatics and Discourse: A Festschrift for Ferenc Kiefer. Amsterdam: John Benjamins. Freeman, Joanne B. 2002. Affairs of Honor. New Haven CT: Yale University Press. Garner, Bryan A. 1995. A Dictionary of Modern Legal Usage. New York: Oxford University Press. Gibbons, John. 2003. Forensic Linguistics: An Introduction to Language in the Justice System. Oxford: Blackwell.

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References Cited Goodwin, Charles. 1994. “Professional Vision.” American Anthropologist, vol. 96, no. 3: 606–633. Grice, H. P. 1967. “Logic and Conversation.” William James Lectures, Harvard University. Reprinted in Syntax and Semantics, vol. 3, Speech Acts (eds. Peter Cole and Jerry Morgan). New York: Cambridge University Press, 1975 (43–58). Haiman, F. 1970. Speech and Law in a Free Society. Chicago: University of Chicago Press (chapter 3, “Defamation”). Hancher, Michael. 1980. “Speech Acts and the Law,” in Roger W. Shuy and Anna Sckhnukkal (eds.), Language Use and the Uses of Language (245–256). Washington, DC: Georgetown University Press. Haugen, Einar. 1966. Language Conflict and Language Planning (27–61). Cambridge MA: Harvard University Press. Holland, Barbara. 2003. Gentlemen’s Blood: A History of Dueling. New York: Bloomsbury. Holland, Barbara, and Peter De Sève. 1997. “Bang! Bang! You’re Dead.” Smithsonian Magazine (October 1997): 1–4. Kniffka, Hannes. 2007. Working in Language and Law. Houndmills, Bassingstoke: Palgrave Macmillan. Landale, James. 2005. Duel: A True Story of Death and Honor. Edinburgh: Canongate. McNeill, David. 2005. Gesture and Thought. Chicago: University of Chicago Press. Mertz, Elizabeth. 2007. The Language of Law School. 2007. New York: Oxford University Press. Nunberg, Geoffrey. 1990. The Linguistics of Punctuation. Menlo Park, CA: Center for the Study of Language and Communication. Phelps, Robert H., and E. Douglas Hamilton. 1969. A Guide to Rights, Risks, Responsibilities. New York: Practicing Law Institute. Prosser, William L., and Robert E. Keeton. 1984. On the Law of Torts, 5th ed. St. Paul: West Publishing. Pullum, Geoffrey K. 1991. “The Linguistics of Defamation,” chapter 12 in his The Great Eskimo Vocabulary Hoax and Other Irreverent Essays on the Study of Language (92–99). Chicago: University of Chicago Press. Robertson, G. and A.G.L. Nichol. 1992. Media Law. 3rd ed. Harmondsworth, UK: Penguin Books. Rosen, Jeffrey. 2002. “Terms of Art.” Legal Affairs (May/June): 1–3.

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References Cited Sack, Robert D. 1999. Sack on Defamation: Libel, Slander and Related Problems, 3rd ed. New York: Practicing Law Institute. Schiffrin, Deborah. 1987. Discourse Markers. Cambridge: Cambridge University Press. Searle, John. 1969. Speech Acts: An Essay in the Philosophy of Language. Cambridge: Cambridge University Press. Shuy, Roger W. 1990. “Tape Recorded Conversations,” in Paul P. Andrews and Marlyn B. Peterson (eds.), Criminal Intelligence Analysis (117–147). Loomis, CA: Palmer Enterprises. Shuy, Roger W. 1993. “Language Evidence in Distinguishing Pilot Error from Product Liability. International Journal of the Sociology of Language, v01.100/101:101–114. Shuy, Roger W. 1998. Bureaucratic Language in Government and Business. Washington, DC: Georgetown University Press. Shuy, Roger W. 1998. The Language of Confession, Interrogation, and Deception. Thousand Oaks, CA: Sage Publications. Shuy, Roger W. 2002. Linguistic Battles in Trademark Disputes. Houndsmill: Palgrave Macmillan. Shuy, Roger W. 2005. Creating Language Crimes. New York: Oxford University Press. Shuy, Roger W. 2006. Linguistics in the Courtroom: A Practical Guide. New York: Oxford University Press. Shuy, Roger W. 2008. Fighting Over Words. New York: Oxford University Press. Tiersma, Peter M. 1987. “The Language of Defamation.” Texas Law Review, vol. 66, no. 2: 303–350. Tiersma, Peter M. 1999. Legal Language. Chicago: University of Chicago Press.

Case Citations Katherine Navarre v. South Washington Public School, Northwest Publications d/b/a Pioneer Press, Timothy Bess, Dan Hoke, Jim Gelbmann, and Stan Hooper Case No. C3–97–3964 State of Minnesota District Court, County of Washington Tenth Judicial District Terri Stokes v. CBS Inc. d/b/a WCCO Television, King World Productions, Gannet Minnesota Broadcasting, Inc. Tom Johnson and the

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References Cited County of Anoka, Minnesota U.S. District Court, District of Minnesota Civil No. 4–96–178 (DSD/JMM) Before the Federal Communications Committee In re: Reverend Sun Myung Moon and the Unification Church against the Public Broadcasting Service, WGBH Boston, WNET New York, KCTS Seattle, WTVS Detroit and WBPT Miami Carson Wayne Newton v. NBC CV-LV-81–180 MDC U.S. District Court Nevada Frank D. Celebreeze v. Plain Dealer Publishing Co., Gary Webb and Ray Osrin Case No. 137729 Court of Common Pleas, Cuyahoga County, Ohio Southern College of Optometry v. Tennessee Academy of Ophthalmology, Dr. Richard Drewry Jr., Dr. John Montgomery, Jr., Dr. Samuel E. Wallace, Dr. Roger L. Hiatt, and Dr. Harry M. Lawrence Jr. No. 02474–8, Circuit Court of Tennessee, Fifteenth Judicial Circuit, Memphis Jack R. Anderson, M.D.; the American Academy of Facial Plastic and Reconstructive Surgery; and the American Association of Cosmetic Surgeons v. the Georgia Society of Plastic Surgeons, Inc.; William E. Huger, M.D.; and John A. Rusca, M.D. Civil Action File No. C-93931 Superior Court of Fulton County, Georgia William D. Gray, W.D.G.-West, Inc. and W.D.B. & Co. Inc. v. Horst Rechelbacher No: 99-C-129-C U.S. District Court, Western District of Wisconsin Jody Deramus v. Jackson National Life Insurance Company Civil Action No. 97–840 (RMU) U.S. District Court of the District of Columbia Rita Narango v. Nature’sHope, Inc. (anonymized case) Grinnell Corporation v. Road Sprinkler Fitters Union No. 669 and United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitters Industry of the United States and Canada Civil Action File No. 80–0911 U.S. District Court, District of Columbia

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References Cited

Other Case Cited Morgan v. Oldhma’s Press Ltd. [1971] 1 WLR 1239 New York Times Co. v. Sullivan 376 U.S. 254 1964 Friedell v. Blakely Printing Co. 163 Minn. 226, N.W. 974, 976 Milkovich v. Lorain Journal Co. 497 U.S. 1, 18–21 Chaplinsky v. New Hampshire 313 U.S. 568 1942 Strada v. Connecticut Newspapers, Inc. 447 A.2d at 1012 Janklow v. Newsweek, Inc. 788 F.2d 1300 8th Cir. 1986 Contemporary Mission v. New York Times, 842 F.2d 612, 2nd Cir 1988

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Index

Accuracy of evidence, 31–32 Accusations, 25–26, 34, 74–76 Ambiguity, 33, 59–60, 166–67, 142–45 Ambush interview, 65, 87–88, 90 American Freedom Coalition, 72–74 American Journal, 56–68 Analogy, 59 Anderson, Jack, 152–68 Apologies, 20, 31, 52 Attribution of intent, 107–9, 231–32 Attribution of understanding, 109–11 Austin, J. L., 11, 33 Aveda Corporation, 171–74 Bach, K. and R. Harnish, 38 Beauty Mfg., 173, 182–84 Black’s law Dictionary, 11 Bork, Robert, 30 Boston Herald, 31–32 British defamation law, 10, 11 Burr, Aaron, 17 Celebrezze, Frank, 99–117 Centrality of language, 22 Chaplinsky v. New Hampshire, 26 Cianci, 16 Clear and convincing evidence, 14 Cloze procedure, 73 Code Duello, 17, 235 Contextual meaning, 60, 198–200 Conveyed meaning, 31, 34, 61–65, 76–79, 158–61, 210–13 Contamination strategy, 40

Cooperative principle, 59–60 Contemporary Mission v. New York Times, 116 Dateline, 192–93 Defamation defined, 11–16 Deremus, Jody, 191–200 Discourse analysis, 36 Discourse framing, 58–59 Discourse markers, 59 Discourse structure, 31, 38–39, 156–58, 178–81, 206–8, 224 Distress phrases, 186–87 Doyle, James, 237 Durant, Alan, 5, 35, 38 Exaggerated language, 14, 37, 140 Federal Communications Commission, 70 Fighting words, 19, 26 Figures of speech, 214 Foreign Agents Registration Act, 71 Fraser, Bruce, 38, 115 Freeman, Joanne, 18–20 Friedell v. Blakely Printing Co., 14 Frontline, 70 Garner, Bryan, 12, 13, 36, 148–50 German defamation law, 12 Gibbons, John, 5 Goodwin, Charles, 29–30

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Index Grammatical referencing, 32–33, 66–67 Grice, H. P., 59 Grinnell Fire Protection Systems Company, 219–33 Haiman, F., 5 Hamilton, Alexander, 17 Hancher, Michael, 5 Haugen, Einar, 9 Headlines, 116 Holland, Barbara, 17–27, 68 Hyperbolic statements, 14 Illocutionary force, 30, 33, 122, 175 Imperatives, 187 Inferences, 159–60, 210–13 Innuendo, 38, 115 Insults, 25–26 Intentionality, 31, 35, 107–9, 231–33 Intonation, 187 Jackson National Life Insurance Company, 191–200 Jankow v. Newsweek Inc., 58 Journal of the Medical Association of Georgia, 151 Kniffka, Hannes, 5, 12, 16 Landale, James, 17, 21, 25 Libel tourism, 10 Lincoln, Abraham, 17, 68 Los Angeles Times, 101 Malicious language, 31, 36–38, 79–82, 94–96, 163, 185–88, 213–17, 229–31 McNeil, David, 188 Menacing gestures, 188

Mertz, Elizabeth, 27 Milkovitch v. Lorain Journal Co., 15, 16 Moon, Sun Myung, 43, 69–83 Morgan v. Olham’s Press, 12 Name calling, 164 Narango, Rita, 45–53 Navarre, Katherine, 45–53 NBC Nightly News, 85–96 Negative prominence, 51 Negligent defamation, 12 Negotiation, 20, 23–24 Newton, Wayne, 43, 85–96 New York Times v. Sullivan, 13, 36, 49, 51 Non-native English ability, 175–78 Notification and demand, 23 Opinions versus facts, 14, 15, 65–67, 94–96, 145–48, 161–63, 208, 224–29 Overgeneralization, 141–42 Pejorative terms, 37, 136–37, 215 Perlocutionary effect, 30–31, 33, 175 Personal attack rule, 71 Personal libel, 166–67 Phelps, Robert and Douglas Hamilton, 5 Pioneer Press, 45–53 Plain Dealer (Cleveland), 43, 100–117 Proof of offense, 26 Prosser, William and Robert Keeton, 5, 14 Pullum, Geoffrey, 5 Rechelbacher, Horst, 171–89 Reckless abandon, 13, 36 Referential meaning, 34

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Index Relief expressions, 187 Representation, 24 Research reports, 131–35 Resolution, 27 Restatement (Second) of Torts, 10 Retraction, 52 Rhetorical questions, 37, 216–17 Road Sprinkler Fitters Union, 219–33 Robertson, G. and A. G. L. Nichol, 35 Rosen, Jeffrey, 26 Sack, Robert, 5 Sarcasm, 37, 137–40, 164–66, 215–16 Schiffrin, Deborah, 59 Scottish defamation law, 12 Searle, John, 11, 15, 33–34 Shields, James, 17 Shuy, Roger W., 4, 9, 40, 60, 82, 98, 201 South Washington School District, 47 South Washington County Bulletin, 50 Southern College of Optometry, 121–68

Speech acts, 33–34, 196–98, 208–10 Strada v. Connecticut, 38, 115 Swedish defamation law, 16 Syntax referencing, 181–85 Tennessee Academy of Ophthalmologists, 121–68 Testimony beyond expertise, 111 Themes, 39, 156–58, 224 Tiersma, Peter, 5, 11, 26, 29, 33, 34, 122, 150, 175, 239 Topic analysis, 38–39, 90–94, 124–29, 150, 156–58, 178–81, 195–96, 206–7, 214–15 Topic sequence, 178–81 Transcript accuracy, 57 Trial by combat, 17 Truth versus falsity, 40 Unification church, 69–83 Verification, 26 Visual framing, 39–40, 90 WashingtonTimes, 73–76 WCCO, 55–62

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