- Court: Oregon Court of Appeals
- Area(s) of Law: First Amendment
- Date Filed: 09-02-2020
- Case #: A162785
- Judge(s)/Court Below: Aoyagi, J. for the Court; DeHoog, P.J.; & DeVore, J.
- Full Text Opinion
Lowell brought this defamation lawsuit after Wright posted a critical Google review about Lowell’s piano store. Lowell asserted that the review stated (1) that a 20 year-old piano was shown as 5 years-old, (2) that a salesperson misled that the store had new Steinway pianos, and (3) therefore “this guy can’t be trusted.” The trial court ordered summary judgement for Wright because no copy of the Google review was in evidence, to which Lowell assigned error on appeal. Lowell argued that testimony from four people who read the review established its existence. Wright argued that the First Amendment foreclosed the claim. “The constitutional guarantees require . . . a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). Under the First Amendment, false speech is protected if it is of public concern unless it is a statement of objective fact made with actual malice. See Herbert v. Lando, 441 U.S. 153, 171-72 (1979); see also Connick v. Myers, 461 U.S. 138, 147-48 (1983). Here, the Court found that the review was of public concern because of the public’s concern in honest merchants. Next, the Court found that statements 1 and 2 are factual statements, but statement 3 is not factual. Finally, the Court found that a reasonable trier-of-fact could ascertain that Wright was motivated by actual malice. Therefore, the Court held that summary judgement was granted in error. Reversed.