Flamm v. American Association of University Women

Brief Fact Summary.

American Association of University Women had a referral service for women in higher education to bring gender discrimination actions. Its directory included participating attorneys and other professionals and was distributed to its membership and anyone who requested a copy. Flamm’s entry was the only one out of approximately 275 that contained a negative comment, claiming Flamm was an ambulance chaser with interest only in slam dunk cases.

Synopsis of Rule of Law.

Whether a publication addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.

Facts.

American Association of University Women (“AAUW”) maintained a referral service for women in higher education who brought or considered bringing gender discrimination actions. The AAUW distributed copies of its directory, which included participating attorneys and other professionals, to its membership and anyone who requested a copy. Flamm’s entry was the only one out of approximately 275 that contained a negative comment, claiming Flamm was an ambulance chaser with interest only in slam dunk cases.

Flamm sued in state court for compensatory damages and punitive damages, alleging libel per se.

Issue.

Was the statement challenged by Flamm protected by either the United States Constitution or the New York Constitution?

Held.

Reversed.

No, the statement challenged by Flamm is not protected by either the United States Constitution or the New York Constitution because the description of Flamm as an “ambulance chaser” might imply to the reader of the directory that Flamm engages in unethical solicitation of clients.

Discussion.

In defamation suits against media defendants, a statement that involves a matter of public concern must be provable as false before liability can be established. Hepps. However, the Milkovich court did not decide if the same rules apply to non-media defendants.

Trying to distinguish whether a defendant is a member of the media or not is impractical. Instead, the Court has held that a private plaintiff’s suit involving a matter of public concern requires the plaintiff to prove that the allegedly defamatory statements were false as directed toward a public audience with an interest in that concern. Similar to a “common interest” privilege, this test balances the competing values of the state’s interest in compensating private individuals for wrongful injury to reputation and the First Amendment freedom fo expression.

Here, gender discrimination is a matter of public concern. The allegation that Flamm is an attorney specializing in the field yet engages in unethical solicitation of victims of gender discrimination is also a matter for public concern because common law recognizes that persons who present themselves or their services or goods to the public are matters of public concern. The directory was sent to hundreds of Flamm’s peers and could be reasonably viewed as an attempt to influence public discourse and affect the public response to incidents of gender discrimination.

Therefore, Flamm has successfully shown that a reasonable person could find that the challenged statement alleges or implies a provably false fact.

The directory in all other respects stated facts (e.g., names, addresses, phone numbers, notes on different professionals) and has the stated purpose of providing referrals to qualified attorneys and professionals. A reader would notice the note about Flamm, as highlighted in italics, suggesting that it warrants special attention and consideration. Though rhetorical hyperbole may not be actionable, there is no requirement that the defamatory meaning of a challenged statement correspond to its literal dictionary definition.

Under the New York Constitution, three factors are considered in the overall context regardless if the defendant is from the media or not: (1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal readers or listeners that what is being read or heard is likely to be opinion, not fact.

Here, the challenged language appears in a national directory compiled and distributed by a reputable professional organization. Given the fact-laden nature of the directory, the reasonable reader would be less skeptical and more willing to conclude that the directory stated or implied facts.