Lowell v. Wright

                                      806

  Argued and submitted June 24, 2021; decision of Court of Appeals affirmed
   in part and reversed in part, judgment of circuit court reversed, and case
        remanded to circuit court for further proceedings June 23, 2022


                        Tom LOWELL,
               dba Piano Studios and Showcase,
                    Respondent on Review,
                               v.
                      Matthew WRIGHT
                      and Artistic Piano,
                    an Oregon corporation,
                     Petitioners on Review.
          (CC 13CV04582) (CA A162785) (SC S068129)
                                   

     Plaintiff, a piano store owner, brought a defamation action against defendants, a competing piano store and its employee, based on an allegedly libelous
Google review, which was deleted before litigation began and never recovered.
Defendants moved for summary judgment based on a First Amendment public
comment defense. The trial court granted the motion, concluding that without
the verbatim text of the review, it could not properly evaluate defendants’ First
Amendment claim. Plaintiff appealed, and the Court of Appeals reversed and
remanded, concluding that first, the absence of the text of the review was not
dispositive of the summary judgment motion; second, the Google review was on
a “matter of public concern,” satisfying one of the prongs of defendants’ asserted
First Amendment defense; third, a speaker’s motive or purpose in speaking is
relevant to whether speech is on a “matter of public concern”; and fourth, to overcome defendants’ First Amendment defense, plaintiff need not show that defendants acted with “actual malice” because defendants were nonmedia, following
Wheeler v. Green, 

, 

 (1979). Held: (1) The lack of the exact
wording of the review did not entitle defendants to summary judgment; (2) the
review was on a “matter of public concern” based on Neumann v. Liles, 

, 

 (2016); (3) a speaker’s motive or purpose in speaking is not
relevant to whether the speech is on a matter of public concern for the purposes
of the First Amendment public comment defense; and (4) a private-figure plaintiff
need not show “actual malice” to overcome a First Amendment public comment
defense when the defendant is nonmedia, adhering to Wheeler.
    The decision of the Court of Appeals is affirmed in part and reversed in part.
The judgment of the circuit court is reversed, and the case is remanded to the
circuit court for further proceedings.



    On review from the Court of Appeals.*
______________
   * On appeal from Jackson County Circuit Court, Dan Bunch, Judge. 

, 

 (2020).
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   Tracy M. McGovern, Frohnmayer, Deatherage, Jamieson,
Moore, Armosino & McGovern, P.C., Medford, argued the
cause and filed the briefs for petitioners on review. Also on
the briefs were Casey S. Murdock and Alicia M. Wilson.
   Linda K. Williams, Portland, argued the cause and filed
the brief for respondent on review.
   Eugene Volokh, UCLA School of Law, First Amendment
Clinic, Los Angeles, California, argued the cause and filed
the brief for amici curiae Institute for Free Speech; Electronic
Frontier Foundation; Professors William Funk, Ofer Raban,
and Kyu Ho Youm; Howard Bashman; Scotusblog, Inc.; and
Professors Glenn Harlan Reynolds and Eugene Volokh. Also
on the brief was Owen Yeates, Institute for Free Speech,
Washington, D.C.
   James Abernathy and Rebekah Millard, Freedom
Foundation, Olympia, Washington, filed the brief on behalf
of amicus curiae Freedom Foundation.
  Before Walters, Chief Justice, and Balmer, Flynn,
Duncan, Nelson, and Garrett, Justices, and Nakamoto,
Senior Judge, Justice pro tempore.…
    NAKAMOTO, S. J.
   The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgment of the circuit court is
reversed, and the case is remanded to the circuit court for
further proceedings.
  Balmer, J., concurred and filed an opinion in which
Garrett, J., joined.
    Flynn, J., concurred and filed an opinion.




______________
   … DeHoog, J., did not participate in the consideration or decision of this case.
808                                          Lowell v. Wright

        NAKAMOTO, S. J.
         Plaintiff’s libel per se claim is based on a Google
review, written by the manager of plaintiff’s business competitor, that subsequently was removed from the internet
without a trace. The Court of Appeals reversed a grant of
summary judgment to defendants. We resolve three disputed legal questions: (1) whether plaintiff may reach a
jury on his libel claim when the text is no longer available;
(2) whether the First Amendment’s public comment defense
is available in these circumstances and, relatedly, whether
a defendant speaker’s identity or motive is part of the court’s
inquiry on the defense’s availability; and (3) whether Oregon
should require a plaintiff claiming defamation to prove
that the defendant acted with a heightened culpable mental state, “actual malice,” in all cases when the speech is
on a “matter of public concern” protected under the First
Amendment, abolishing the distinction that requires such
proof only when the defendant is a member of the media.
         The Court of Appeals concluded that the trial court
had erred because plaintiff’s evidence of the allegedly defamatory statements sufficed to create a question of fact for trial
on his claim and the lack of the review’s printed text did not
affect the analysis of defendants’ First Amendment defense.
Lowell v. Wright, 

, 

(2020). Putting aside the First Amendment defense, we, like
the Court of Appeals, conclude that the lack of a copy of the
review is not fatal to plaintiff’s libel claim and that two of
the three allegedly defamatory statements in the review are
actionable.
          To decide whether defendants were entitled to summary judgment based on their First Amendment defense,
the threshold question is whether the review about plaintiff’s store is subject to First Amendment protection as containing statements on a matter of public concern. As the
Court of Appeals recognized, in Neumann v. Liles, 

, 

 (2016), this court held that a review of a
wedding venue contained speech on a matter of public concern protected by the First Amendment’s public comment
defense, and the review of plaintiff’s business in this case
is similar to the review in Neumann. Although plaintiff
Cite as 

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argues that a speaker’s motive may affect the availability of
the defense, an argument that we reject, neither party has
asked this court to overrule Neumann’s holding. Accordingly,
Neumann controls, and we are compelled to follow it in this
case.
          Finally, we decline to overrule our precedent recognizing the media/nonmedia distinction and to impose an
across-the-board heightened proof-of-fault requirement on
defamation plaintiffs in cases involving the First Amendment. Defendants and amici argue that we ought to abolish
the distinction, in part, they assert, because it is sometimes
difficult to discern whether a given speaker, such as a blogger, is a media or a nonmedia defendant. This case does not
offer an opportunity for careful examination of that issue,
considering that defendants are not “media” under any definition and acknowledge that they are “nonmedia” defendants, and defendants have not persuaded us to abandon
our precedent and to alter Oregon common law.
         Ultimately, we conclude that the trial court erred in
granting defendants’ summary judgment motion and entering a general judgment of dismissal. We affirm the decision
of the Court of Appeals in part and remand the case to the
trial court.
                          I. BACKGROUND
         We are reviewing the trial court’s ruling granting
defendants’ motion for summary judgment on plaintiff’s
claim for defamation. Accordingly, we recount the facts in
the light most favorable to plaintiff as the nonmoving party,
including reasonable inferences that may be drawn from the
facts adduced. ORCP 47 C.
         Plaintiff Lowell owns and operates Piano Studios
and Showcase (Piano Studios), a piano store in Medford. On
September 3, 2012, defendant Wright and his wife visited
plaintiff’s store. At that time, Wright was employed as a
general manager by defendant Artistic Piano, another piano
store in Medford.1 On the day of the visit, Wright was off
     1
       Defendants Wright and Artistic Piano make no arguments independent of
each other. This opinion will distinguish between them only when needed to clarify the facts.
810                                                     Lowell v. Wright

work. Wright testified that he did not tell his boss, Werner,
the owner and operator of Artistic Piano, about his plans
to visit Piano Studios. Soon after the visit, Wright posted a
Google review about Piano Studios.
         In December 2012, while browsing internet pages
mentioning his business, plaintiff found Wright’s review and
became upset. The review was not posted under Wright’s
name, but instead under “Amazing Impressions” (Wright’s
unrelated photography business). Plaintiff eventually found
a phone number associated with Amazing Impressions and
called it, instructing his employee, Norling, to listen to the
phone call and take notes. Wright answered and eventually
hung up on plaintiff.
         After the phone call, Wright spoke with Werner
and showed him the review. According to Wright, he had
told Werner previously about his visit to Piano Studios but
had not mentioned his review. Once Werner looked over
the review, he suggested that Wright take it down. Wright
removed it without saving a copy. Plaintiff also did not save
a copy of the review before it was removed. Wright composed
the review on a home laptop, which he disposed of, explaining that it had become old and inoperable. Despite a diligent
search and a request to Google, the parties were unable to
recover a copy of the review during litigation.
         Although the actual text of the review is unavailable, four people read the review and testified in depositions
regarding its contents: Lowell, Norling, Wright, and Werner.
Although they could not remember the review verbatim,
they largely agreed that it contained the following paraphrased content and that the quoted language (or something
extremely close to it) appeared in the review itself: Wright
walked around the store for 45 minutes before a salesperson
spoke to him, and the store “smelled like grandma’s attic.”
When he eventually spoke with Wright, the salesman told
Wright that a Yamaha C-7 piano displayed on the showroom
floor was about five years old. The salesman also told Wright
that plaintiff can sell new Steinway pianos.2 However,
    2
      The witnesses remember the exact wording of the Steinway comment differently. Plaintiff and Norling remembered the review stating that plaintiff’s
salesman said that the store “can sell new Steinway pianos”; Wright recalled
Cite as 

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plaintiff cannot sell new Steinway pianos, and “[there] were
no new Steinways in the showroom,” which is “like a Chevy
dealer not having any Chevrolets on the lot.” Finally, Wright
had been warned about plaintiff’s store and now knew that
it was true that “this guy can’t be trusted.”
        According to plaintiff, Wright not only made false
statements—he made up the entire conversation at Piano
Studios. Plaintiff’s theory is that defendants’ purpose in
having Wright go to Piano Studios and write the review was
to “cybersmear,” a practice whereby one business pseudonymously writes about a competitor on the internet to
lower the competitor’s reputation and thereby attract more
business for itself. In support, plaintiff provided testimony
from the salesman on duty the day Wright was in Piano
Studios. Plaintiff’s sales force kept time logs in which they
recorded interactions with potential customers. The salesman’s time log from that day does not reflect a conversation with Wright. And, the salesman testified, Wright never
conversed with him about Steinways or the Yamaha piano
on display. In further support of his theory, plaintiff emphasizes that Wright was the manager of Artistic Piano when
he wrote the review, that the review was written under the
name “Amazing Impressions” rather than under Wright’s
own name, and that the review included no details that
would suggest that its writer had specialized knowledge or
a potential ulterior motive.
         In 2013, plaintiff filed a defamation action against
Wright and Artistic Piano.3 He alleged that Wright acted as
Artistic Piano’s agent in writing the Google review. Plaintiff
asserted that the review “purported to describe the personal
experience of an actual customer” but that “Wright was not
a bona fide potential customer.” Plaintiff alleged that three

the wording as “is a Steinway dealer.” The former comment would indicate that
plaintiff is capable of selling while the latter would indicate that the plaintiff is
allowed to sell because he had a dealership agreement with Steinway, authorizing him to sell new Steinway pianos. The significance of this difference, plaintiff
explained, is that if the salesman said that the store “can sell new Steinway
pianos,” that would be true, but if the salesman said that the store “is a Steinway
dealer,” that would be false.
    3
      The action also included an unfair trade practices claim, which is not at
issue on review.
812                                             Lowell v. Wright

statements in the review were false and defamatory assertions of fact:
       “a. That a Yamaha C-7 piano serial number F4910127
   on the showroom floor was misrepresented to Wright as
   being about 5 years old, when in fact said piano was at least
   15 years older and less valuable, and this misrepresentation of the age of the instrument was purposely made in an
   effort to cheat Wright;
      “b. That [plaintiff] misrepresents that he sells new
   Steinway Pianos, when he actually doesn’t; and
       “c. That the above misrepresentations are proof that
   ‘this guy can’t be trusted.’ ”
In their answer, among other defenses, defendants asserted
that the First Amendment precluded liability for libel.
         In 2016, defendants filed a motion for summary
judgment on the libel claim. They argued that (1) plaintiff could not prevail because he could not prove that the
statements were defamatory; (2) any statements made were
protected by the First Amendment public comment defense
(under which statements on a matter of public concern that
are not susceptible to being proved true or false are not
actionable); and (3) plaintiff could not prove that defendants
acted with actual malice.
         Plaintiff opposed the motion, providing the deposition testimony about the review’s content. He also submitted
evidence regarding the falsity of the Yamaha and Steinway
statements. Plaintiff submitted a copy of the Yamaha piano’s tag, which indicated that it was manufactured in 1990,
to support the salesman’s testimony that he never falsely
told Wright that the piano was five years old. Plaintiff also
introduced evidence that he can and does sell new Steinway
pianos even though plaintiff was not a Steinway dealer,
including documents that he contended related to the store’s
sales of Steinway pianos.
         The trial court granted summary judgment to
defendants. In a letter opinion, the court addressed the significance of the missing verbatim text for plaintiff’s claim
that he was defamed by the can’t-sell-new-Steinways remark
in the review. The court indicated that, as to that statement,
Cite as 

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plaintiff lacked sufficient evidence for a trial on what the
review had said and whether it was false. The trial court
did not fault the sufficiency of plaintiff’s evidence that the
review stated that the salesman had lied to Wright about
the age of the Yamaha piano in the showroom. And the “this
guy can’t be trusted” statement, the court concluded, was so
clearly one of subjective opinion that it was not actionable in
a defamation claim.
        The trial court went on to conclude that, because
defendants had asserted a First Amendment defense, it was
required to determine whether the allegedly false statements about the pianos were constitutionally protected
expressions of opinion. Without a copy of the review, the trial
court concluded, it was not possible to determine whether
the Yamaha and Steinway statements were constitutionally protected or instead actionable statements implying
an assertion of objective fact and that, under those circumstances, judgment for defendants was appropriate.
        The trial court did not address other issues that
the parties had raised in connection with defendants’ First
Amendment defense. The court then entered a general judgment dismissing the action. Plaintiff appealed, and the
Court of Appeals reversed and remanded.
         The Court of Appeals first held that the absence of
the text of the review was not dispositive with respect to the
defamatory remarks. Lowell, 

. Next, the
court considered whether defendants were entitled to summary judgment based on their First Amendment defense.
To be protected, the court stated, the speech must be on a
matter of public concern that does not imply an assertion of
objective fact about plaintiff. 

. The court concluded that defendants’ speech was on a matter of public
concern, but only after concluding that, although “a speaker’s motive or purpose in speaking is relevant to whether
speech is protected by the First Amendment,” 

(emphasis in original), plaintiff had failed to meet his burden to establish proof of defendants’ motive to denigrate his
business for private financial advantage. 

. The
court then addressed whether the review implied objective
facts about plaintiff and held that the Yamaha and Steinway
814                                         Lowell v. Wright

statements could be sufficiently factual to be actionable,
but that the statement “this guy can’t be trusted” was not.

.
        Finally, the Court of Appeals addressed defendants’
argument that plaintiff was not entitled to a trial because
he had not made a sufficient showing of their actual malice.
Following this court’s holding in Wheeler v. Green, 

, 

 (1979), the court held that plaintiff need
not establish that defendants acted with actual malice to
overcome the First Amendment defense because that standard applied only to media defendants, a status defendants
lacked, and that, in any case, plaintiff supplied sufficient
evidence to establish actual malice for the purposes of summary judgment. Lowell, 

. We allowed
defendants’ petition for review.
                      II. ANALYSIS
A.    Libel Actions in Oregon and the First Amendment
      Defense, Generally
         To put the issues we decide in perspective, we provide some basic law governing libel actions in Oregon. As this
court explained in Neumann, 

, defamation has
long been recognized as tortious in Oregon. Indeed, the remedy clause, Article I, section 10, of the Oregon Constitution,
has specified from its adoption that Oregonians shall have a
remedy for injury to reputation, providing that “every man
shall have remedy by due course of law for injury done him
in his person, property, or reputation.” In Horton v. OHSU,

, 

 (2016), the court explained
that, textually, the “clause’s focus on providing remedies for
specified types of injuries implies that it was intended to
guarantee some remedy for those injuries, and not merely be
a guarantee of procedural regularity for whatever injuries
may, at the moment, enjoy legal protection.”
          A statement that “would subject the plaintiff to
hatred, contempt or ridicule,” that tends to “diminish the
esteem, respect, goodwill or confidence in which [the plaintiff] is held,” or that brings about “adverse, derogatory or
unpleasant feelings or opinions against” the plaintiff can be
the basis for a defamation claim. Neumann, 

Cite as 

 (2022)                                  815

(quotation and citation omitted, brackets in original). And,
as relevant to this case, a statement also is defamatory if
it falsely “ascribes to another conduct, characteristics or a
condition incompatible with the proper conduct of his lawful
business[.]” Id. at 711-12. A court decides whether a statement is capable of a defamatory meaning, and, if so, the jury
decides whether the statement did have a defamatory meaning. Brown v. Gatti, 

, 

 (2006).
          Alleged defamatory statements that the plaintiff
engaged in misconduct or dishonesty in conducting the
plaintiff’s business are actionable per se. Neumann, 

. Under Oregon law, to establish a prima facie claim
of libel per se, subject to defenses, plaintiff must prove that
defendants made a defamatory statement about him and
published the statement to a third party. 

. Because
the claim is libel per se, plaintiff is not obliged to prove a
third element: that the defamatory statement caused pecuniary loss or special harm. Brown, 

.
         But it is now well established that state law defamation actions can be affected by the First Amendment
rights of speakers. The Supreme Court first extended constitutional protections in a libel case over 50 years ago in New
York Times Co. v. Sullivan, 

, 

, 

 (1964). Before that decision, the Court had recognized libel as one of the “well-defined and narrowly limited
classes of speech, the prevention and punishment of which
have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire, 

, 

, 

 (1942).
         Since New York Times was decided, the Supreme
Court has repeatedly revisited the intersection between
defamation claims and the First Amendment freedoms of
speech and of the press and articulated additional constitutional principles that may apply in common-law defamation
cases, sometimes focusing on the identity of the speaker, the
identity of the plaintiff, or the nature of the speech involved.
At the same time, the Court has noted that competing
interests are involved. For example, the Court in Milkovich
v. Lorain Journal Co., 

, 

, 

 (1990), as it had in earlier cases, recognized not only
816                                                          Lowell v. Wright

the First Amendment’s protection “of free and uninhibited
discussion of public issues,” but also the “ ‘important social
values’ ” undergirding common-law defamation and strong
societal interests “ ‘in preventing and redressing attacks
upon reputation.’ ” 

 at 22 (quoting Rosenblatt v. Baer, 

, 

, 

 (1966)). In Gertz v.
Robert Welch, Inc., 

, 

, 

(1974), the Court also recognized the value of reputation in
several ways, noting that states have a legitimate interest
in compensating “individuals for the harm inflicted on them
by defamatory falsehood” and that “the individual’s right to
the protection of his own good name ‘reflects no more than
our basic concept of the essential dignity and worth of every
human being—a concept at the root of any decent system of
ordered liberty.’ ” 

 at 341 (quoting Rosenblatt, 

 (Stewart, J., concurring)).4
        As relevant here, the First Amendment interacts
with plaintiff’s claim in two distinct ways. First, defendants raise the First Amendment public comment defense,
which places federal constitutional constraints on whether
a state must require that a plaintiff in a defamation action
show that the defamatory statements are provably false.
Second, defendants argue that plaintiff must show that they
acted with actual malice, a standard that comes from First
Amendment doctrine and that some state courts have chosen to apply broadly across defamation actions. We discuss
each aspect of First Amendment doctrine in detail.
        The Supreme Court explained the falsity requirement in Philadelphia Newspapers, Inc. v. Hepps, 

,

, 

 (1986), and Milkovich. In
Hepps, the Supreme Court considered a libel claim brought
by a convenience store franchise stockholder against a
newspaper over an article alleging that the stockholder had

     4
       Recently, Justice Thomas has called into question whether, in New York
Times and the cases that followed, the “constitutional libel rules” adopted by the
Court by virtue of the First and Fourteenth Amendments properly displaced the
common law of libel developed by the states. McKee v. Cosby, ___ US ___, ___,

, 

 (2019) (Thomas, J., concurring in denial of
certiorari). In his view, the states “are perfectly capable of striking an acceptable
balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm.” 

.
Cite as 

 (2022)                                 817

mob ties. 

. At issue was whether the plaintiff
could recover without a showing that the statements were
false. 

 The Court held “that, at least where a newspaper
publishes speech of public concern, a private-figure plaintiff cannot recover damages without also showing that the
statements at issue are false.” 

. The Hepps
Court reserved the question of whether a private-figure
plaintiff could recover against a nonmedia defendant without making a showing of falsity. 

 at 779 n 4. In Milkovich,
the Court reaffirmed its holding in Hepps, explaining,
“Foremost, we think Hepps stands for the proposition that
a statement on matters of public concern must be provable
as false before there can be liability under state defamation
law, at least in situations, like the present, where a media
defendant is involved.” 

. Milkovich held that
a media defendant’s speech was protected under the First
Amendment as public comment when two criteria were met:
(1) the speech was on a matter of public concern and (2) the
speech could not reasonably be interpreted as stating facts
or was not susceptible to being proved true or false. 

 The
Court again reserved whether a nonmedia defendant could
raise the public comment defense. 

 at 20 n 6.
         Separately, the Supreme Court has held that states
cannot allow a private-figure plaintiff to prevail in a defamation claim against a media defendant without making
a showing of some level of fault. Gertz, 

. The
states are left to define for themselves the appropriate standard of fault. 

 Defendants in this case urge us to hold not
only that plaintiff must prove defendants’ fault, even though
they are not media defendants, but also that the standard
of fault should be “actual malice,” or reckless disregard for
the truth, which the Court has required only for defamation
actions brought by public officials and public figures against
media defendants. See New York Times, 

;
Curtis Publishing Co. v. Butts, 

, 

, 

 (1967).
        In sum, without the overlay of any state law, federal constitutional law currently recognizes two different
areas of defamation law in which a state may make rules
that distinguish between media and nonmedia defendants within an acceptable range. With respect to falsity,
818                                          Lowell v. Wright

federal constitutional law announced by the Supreme Court
demands that a state require a private-figure plaintiff to
show falsity when a media defendant’s speech is protected
by the public comment defense. The Court’s decisions do not
speak to whether that requirement applies when the defendant is nonmedia. With respect to fault, a private-figure
plaintiff may not collect damages from a media defendant
without some showing of fault. But Gertz does not announce
a federal rule for fault in a defamation case brought by a
private-figure plaintiff against nonmedia defendants.
         This court has also issued decisions involving
proof of falsity and of fault in cases involving both the First
Amendment and Oregon defamation law. In Neumann, the
court established for the first time that a private-figure
plaintiff bears the burden of proving falsity of statements
in defamation cases involving the First Amendment public
comment defense, even when the action is brought against
nonmedia defendants. See 

 (announcing
framework for applying Milkovich against factual backdrop with no media defendant). And, in a series of cases
decided in the 1970s, this court held that the Gertz fault
requirement for private-figure plaintiffs applies only to
media defendants. Harley-Davidson v. Markley, 

, 

 (1977); Adams v. State Farm Mutual
Auto. Ins. Co., 

, 

 (1978); Wheeler,

.
B.    Sufficiency of Evidence in Absence of Text
         On review, defendants rely primarily on Neumann
to argue that the trial court correctly granted their motion
for summary judgment. In challenging the reversal by the
Court of Appeals, defendants ask this court to address three
issues, the first of which is whether a plaintiff may reach
a jury in a libel claim based on a writing posted on a publicly available site when the writing itself is no longer available. Defendants urge that, without the actual text of the
review, plaintiff cannot establish the content of the defamatory statements or, at least, cannot establish enough content
to permit a court to competently analyze defendants’ First
Amendment public comment defense. We conclude that the
lack of the text is not fatal to plaintiff’s libel claim.
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         Since Wright removed his Google review, it is no
longer available. In lieu of the unavailable writing, plaintiff
relies on the testimony of four people who read the review to
supply the content of the statements that he contends were
defamatory. We reject defendants’ contention that plaintiff
cannot proceed to trial on his libel claim without a copy of
the review.
          Defendants argue that the loss of the text means
that a court cannot competently apply the constitutionally mandated test to discern whether the public comment
defense is available. In Neumann, this court held that, to
determine whether speech was capable of defamatory meaning (and thus whether it satisfied one of the prongs of the
public comment defense), a court had to look to three factors:
(1) the “general tenor of the entire work”; (2) the specific context and content of the statements including figurative and
hyperbolic language; and (3) whether the statement itself is
sufficiently factual to be proved true or false. 

.
In defendants’ view, because the review is lost, a court lacks
sufficient information to apply the test and properly perform
its gatekeeping role. For instance, defendants doubt whether
a court can discern the “general tenor” of the work without
the text.
         Having a copy of the review would certainly simplify matters, but factfinders have long been asked to weigh
competing or incomplete evidence and to make credibility
determinations. The task is no different here. It is an artifact of how libel cases are typically litigated that we might
be tempted to think that a copy of the at-issue writing would
be required. Because, definitionally, libel has been put into
writing, the parties are typically able to supply the court
with the writing. But we can easily find similar defamation
cases in which no such exact record was available, and the
case was nonetheless able to be tried to conclusion.
        The Court of Appeals aptly compared this libel case
to slander cases. Lowell, 

. Slander cases
can be litigated without the benefit of verbatim records of
what words were spoken. See, e.g., Worley v. OPS, 

, 

, rev den, 

 (1984) (relating the factual background, including that the allegedly
820                                             Lowell v. Wright

defamatory statements were spoken in a staff meeting, without verbatim quotes of the statements). In slander cases, a
plaintiff need not prove that the defendant spoke exactly the
words alleged in the complaint, but only that the words are
in substance the same, i.e., “so many of the words alleged in
the declaration as constitute the sting of the charge.” Swift
& Co. v. Gray, 101 F2d 976, 981-82 (9th Cir 1939) (internal
quotation marks omitted). There is no reason that such a
standard should be categorically inapplicable to libel cases
because the medium of the speech is different.

         Here, four people—plaintiff, Norling, Wright, and
Werner—read the review and testified as to its contents.
Their accounts largely agree, and they all seem to agree that
they have not collectively forgotten a substantial component
of the review (e.g., an additional customer service complaint
or remark about the store’s instruments). The point of disagreement concerns the exact wording of the statement in
the review about Steinway piano sales. Defendants’ witnesses recall its wording in one way, and plaintiff’s witnesses recall it in another.

        But, at summary judgment, the trial court must
view the evidence in the light most favorable to plaintiff,
leaving it to the eventual factfinder to make credibility
determinations. ORCP 47 C. And the testimony of the four
witnesses is sufficient for a factfinder to find the facts, including whether the review conveyed that plaintiff’s salesman
had misrepresented to Wright that plaintiff was a Steinway
dealer or that plaintiff could sell Steinway pianos.

         We turn to defendants’ additional argument that
the text of the review is necessary to apply First Amendment
protections properly. Although it certainly is easier to discern the “general tenor” of a piece or the use of hyperbolic
or figurative language with the text in hand, and those are
important factors to determine whether a statement implies
an assertion of fact, nothing in Neumann or the case law
from which it derives suggests that the fact that exact wording is disputed means that a trial court must throw up its
hands, declare defeat, and grant summary judgment to the
defendants. 

. Competent evidence going to
Cite as 

 (2022)                                 821

the general tenor of the review, its use of language, and the
nature of the allegedly actionable statements was available.
Thus, a constitutional inquiry was certainly possible, albeit
not as straightforward as it would be if the trial court could
assure itself that it had all the information that ever existed
about the allegedly defamatory writing.
        Accordingly, we reject defendants’ argument that
they were entitled to summary judgment because plaintiff
could not produce the exact wording of the review.
C. The First Amendment Defense
         We turn to the second issue on review: whether
defendants are entitled to assert their public comment First
Amendment defense. As explained above, under Milkovich,
for a statement to be protected under the First Amendment,
it must (1) be on a matter of public concern and (2) not be
susceptible to being proved true or false. 

. The
parties’ dispute here centers on the public concern prong
and, in particular, whether the identity of the speaker or the
speaker’s motive can affect whether speech is on a matter of
public concern.
         We begin by describing the parties’ arguments in
some detail, as they circumscribe our analysis here. First,
plaintiff does not ask us to overrule Neumann. Plaintiff
briefly discusses Neumann but argues that it is distinguishable from the present case. He argues that, because of the
procedural posture in which the question about the nature
of the statements in Neumann arose, the decision had little
to do with whether the speech was on a matter of public concern in a constitutional sense. The defendant in Neumann
had asserted protection under the Oregon Anti-Strategic
Lawsuits Against Public Participation (anti-SLAPP) statute, ORS 31.150. In plaintiff’s view, the court’s comments
about the statements at issue being on a matter of public
interest concerned the statutory standard under the anti-SLAPP statute, which shifts a modest burden of production
to the plaintiff when the allegedly actionable communications are made “in a place open to the public or a public forum in connection with an issue of public interest[.]”
ORS 31.150(2)(c).
822                                          Lowell v. Wright

         Plaintiff also offers reasons to doubt the result of
Neumann’s application to the present matter. Plaintiff would
have us conclude that speaker identity and motive can affect
the public concern analysis and that, under the circumstances of this case, Wright’s identity as an employee for a
competitor and his alleged motive of sinking plaintiff’s business renders his review not on a matter of public concern.
Plaintiff submits that the “attacks by a competing business
are not issues of public interest” and argues that the Court
of Appeals correctly concluded that the speaker’s motivation
is relevant to whether the speech is on a matter of public concern. Plaintiff also argues that the Court of Appeals incorrectly concluded that the record was insufficient to establish
a factual issue for trial on motivation; he highlights the fact
that Wright concealed who he was when he composed the
review as a basis to find that defendants were not speaking on a matter of public concern. In response, defendants
advance a simple argument: The identity or motive of the
speaker is irrelevant to the determination of whether the
speech is on a matter of public concern, and Neumann controls the outcome here.
         To address whether the public concern prong of the
public comment defense applies under the circumstances of
this case, we address both interrelated aspects of the parties’ arguments: (1) the degree to which Neumann controls
and (2) whether a speaker’s identity and motive affect the
public concern analysis. We conclude that Neumann controls in the absence of plaintiff’s request that we overrule
it, although we have doubts about its approach, and that a
speaker’s identity and motive do not affect whether a matter
is of public concern.
      1.   Neumann v. Liles
         Neumann was a libel action involving a wedding
guest’s negative online consumer review of a wedding venue
posted on Google Reviews. 

. As discussed,
the defendant filed a special motion to strike the plaintiffs’
claim under Oregon’s anti-SLAPP statute, which applies to
cases involving written statements presented “in a place
open to the public or a public forum in connection with an
issue of public interest,” among others. 

; see
Cite as 

 (2022)                                    823

also ORS 31.150(2)(c). The trial court granted the motion
and dismissed the claim, and the Court of Appeals reversed.
Neumann, 

. Rejecting the defendant’s contention that his review was hyperbolic and mere opinion, the
Court of Appeals concluded that some statements in the
review were capable of a defamatory meaning and that the
plaintiffs had adduced sufficient evidence, if credited, to
permit a factfinder to determine that the defendant’s statements were defamatory. 

; see also ORS 31.150(3)
(providing that, if a defendant establishes grounds for the
motion under subsection (2), the burden shifts to the plaintiff to establish the probability that “the plaintiff will prevail
on the claim by presenting substantial evidence to support a
prima facie case”). This court allowed review “to determine
how an actionable statement of fact is distinguished from a
constitutionally protected expression of opinion in a defamation claim and whether the context in which a statement is
made affects that analysis.” Neumann, 

.
        This court began by reviewing the Supreme Court’s
decision in Milkovich. 

. Neumann described
Milkovich as having two prongs for First Amendment protection to apply: first, whether the statements were on a
matter of public concern and, second, whether the statements were susceptible to true-false analysis. 

 (citing Milkovich, 

).
         Notably, Neumann did not mention that the Court
had reserved judgment in Milkovich as to whether its First
Amendment limitations applied to nonmedia defendants in
defamation cases. See Milkovich, 

 n 6 (“In Hepps
the Court reserved judgment on cases involving nonmedia
defendants, and accordingly we do the same.” (Internal
citation omitted.)). Additionally, Neumann’s discussion of
whether the wedding review was on a matter of public concern was limited to the following:
   “[Plaintiff] has not disputed that [the defendant’s] statements involve matters of public concern, and we readily
   conclude that they do. [The defendant’s] review was posted
   on a publicly accessible website, and the content of his
   review related to matters of general interest to the public,
   particularly those members of the public who are in the
   market for a wedding venue.”
824                                          Lowell v. Wright

 (citing Unelko Corp. v. Rooney, 912 F2d 1049,
1056 (9th Cir 1990), cert den, 

 (1991)).
         The court then turned to the legal question before it:
How should a court determine whether an allegedly defamatory statement is susceptible to a true-false analysis, the
second prong of the test in Milkovich? The court in Neumann
adopted the approach the Ninth Circuit had crafted in
Unelko Corp., 912 F2d at 1053, soon after the Supreme
Court decided Milkovich. Neumann, 

. That
approach involves a three-part inquiry, which we described
as “(1) whether the general tenor of the entire publication
negates the impression that the defendant was asserting
an objective fact; (2) whether the defendant used figurative
or hyperbolic language that negates that impression; and
(3) whether the statement in question is susceptible of being
proved true or false.” 

. Through that framework, a
court considers the work as a whole, the context of the statements, and the statements themselves to determine whether
a factfinder could conclude that the statements imply a false
assertion of objective fact. 

         The Neumann court explained in detail the choice
to adopt the Unelko approach, but it did not address a factual difference between the two cases: The Neumann defendant was nonmedia (a wedding guest who wrote an online
review), 

, and the Unelko defendants were
media (CBS and Andy Rooney, a broadcaster best known
for his appearances on 60 Minutes), 912 F2d at 1050. In
Unelko, the Ninth Circuit mentioned but did not dwell on
the Supreme Court’s language in Milkovich reserving the
question of whether the First Amendment defense applied
to nonmedia defendants. See 

 at 1056 (quoting Milkovich’s
announcement of the rule as applying “at least in situations,
like the present, where a media defendant is involved,”
Milkovich, 

, and applying the test without
acknowledging CBS and Rooney as media defendants). In
short, the Neumann court did not note that whether the
defendant is media or not could affect the analysis, even to
reject the idea.
         The court went on to apply Unelko to the wedding
guest’s online review, agreeing with the Court of Appeals
Cite as 

 (2022)                               825

that some of the statements were capable of a defamatory
meaning, but stating that the question remained “whether
they are nevertheless protected under the First Amendment.”
Neumann, 

. The court addressed each prong
of the Milkovich test, and, concluding that the statements
were protected expressions of opinion, it reversed the Court
of Appeals. 

.

          In short, while the main issue in, and the clear
holding of, Neumann was that courts in Oregon would use
the Unelko three-part inquiry to determine whether speech
was capable of defamatory meaning under Milkovich, the
Neumann court decided two other issues with comparatively little to no discussion: (1) that the First Amendment
falsity requirement applied when a private-figure plaintiff
made claims against nonmedia defendants and (2) that a
scathing internet review was on a matter of “public concern.” Neumann allowed the defendant to raise the First
Amendment public comment defense because his speech
was on a matter of public concern and his review could not
reasonably be interpreted as asserting fact. 

.
It appears that the parties did not dispute that the review
of the wedding venue was of public concern, a term of art in
First Amendment defamation doctrine.

         In Dun & Bradstreet, Inc. v. Greenmoss Builders,

, 

, 

 (1985), the Court
had the first occasion to consider how the First Amendment
applies to a defamation suit between private-figure plaintiffs and nonmedia defendants and used “public concern” as
a term of art in the defamation context. A building company sued a credit reporting service for defamation for misreporting to five subscribers that the company had filed for
bankruptcy. 

. The Court considered how best to
balance the state’s interests in protecting its law of defamation and First Amendment values given the context. It
noted that the First Amendment interest at issue was “less
important than the one weighed in Gertz. We have long recognized that not all speech is of equal First Amendment
importance. It is speech on matters of public concern that is
at the heart of the First Amendment’s protection.” 

(internal quotations omitted). The Court explained that the
826                                                        Lowell v. Wright

First Amendment was created to protect the interchange of
ideas to effectuate the political and social will of the people
and that speech concerning public affairs was the “essence
of self-government.” 

. Accordingly, that speech was
worthy of the First Amendment’s greatest protection. 

           On the other hand, speech of only private concern
deserved less protection. 

 The Court quoted this court’s
decision in Harley-Davidson, 

, extensively and
favorably to support that point. See Dun & Bradstreet, 

 (“ ‘[There] is no threat to the free and robust debate
of public issues; there is no potential interference with a
meaningful dialogue of ideas concerning self-government;
and there is no threat of liability causing a reaction of selfcensorship by the press. The facts of the present case are
wholly without the First Amendment concerns with which
the Supreme Court of the United States has been struggling.’ ”). When balanced against a much weaker First
Amendment interest, the state’s interest in protecting its
citizens from defamation was much stronger. 

         The Court in Dun & Bradstreet readily concluded
that the speech at issue was of private, not public, concern.

 (Burger, J., concurring), 774 (White, J., concurring).5 It applied the “public concern” test (examining the
content, form, and context of the speech) originally developed in public employment cases. 

. The Court noted
that the speech was wholly false, clearly injurious, and made
available to only five subscribers. 

. Additionally,
there was “simply no credible argument that this type of
credit reporting require[d] special protection to ensure that
‘debate on public issues [remained] uninhibited, robust and
wide-open.’ ” 

 (quoting and citing New York Times, 

). The Court also noted that the speech at issue was
unlikely to be chilled based on the rule announced because

    5
      Dun & Bradstreet was a plurality decision, but five members of the Court
(three signing on to the lead opinion and Justices Burger and White concurring
separately) agreed that the speech at issue was on a matter of private rather
than public concern and saw that as dispositive in distinguishing the case from
Gertz. Justices Burger and White wrote separately to express disagreement with
the trend in the case law of “constitutionalizing the entire law of libel and slander” but agreed that the lead opinion was correct given that case law. Id. at 764
(Burger, J., concurring), 766, 774 (White, J., concurring).
Cite as 

 (2022)                                 827

its motivation was profit, which would be best served with
accurate information. Dun & Bradstreet, 

.
         We draw two lessons from the Supreme Court’s discussion of public concern. First and foremost, the legal rule
is that a reviewing court discerns whether speech is on a
matter of public concern by looking to its content, form, and
context. 

. Second, Dun & Bradstreet discusses matters of public concern as the “heart of the First Amendment’s
protection” because they protect the interchange of ideas
required for effective self-government. 

.
         Defendants essentially contend that a negative review
of a business posted on the internet is categorically speech
on a matter of public concern and that we should follow
Neumann. Defendants seem to assume that the internet can
breathe constitutional importance into speech posted in a
way that makes it publicly available. We doubt that sweeping proposition. The internet is revolutionary. Scholars, legal
practitioners, and laypeople alike have urged that its revolutionary nature requires an entirely different set of rules,
urging that speech on the internet enjoys unusual protection from influence or restraint. But many innovations were
once revolutionary. The telegram allowed messages to travel
in a matter of minutes or hours, instead of the days it took
for letters to reach their destinations. But a statement communicated by telegram is no different from the same one
communicated by letter. So too with the internet. In practice, there is no difference between a statement being posted
on social media, Google reviews, on a sign carried around
outside the plaintiff’s home, or written in the sky: The statement is the same no matter how it reaches the public.
        The touchstone principle in evaluating whether
speech is on a matter of public concern is whether the speech
must be protected to ensure the continuance of vigorous
debate on public issues and, by extension, self-governance.
Dun & Bradstreet, 

. The idea that negative
remarks about a business’s practices are always (or almost
always) necessary to ensure vigorous debate on public issues
or are part of self-governance is doubtful. Although such
remarks may be made in public or be on a subject that a
member of the public finds interesting, those circumstances
828                                          Lowell v. Wright

do not automatically render them of constitutional importance. None of this is to say that a customer’s review of a
business cannot be on a matter of public concern while hewing closely to Dun & Bradstreet. Rather, instead of assuming that a customer review of a business is on a matter of
public concern, a careful and more nuanced approach would
likely be to examine the “content, form, and context … as
revealed by the whole record.” 

.
      2. Application of Neumann
         We now turn to whether Neumann applies to the
present case. Although the court’s analysis on public concern
consists of little more than a citation to Unelko, Neumann,

 (citing Unelko, 912 F2d at 1056), we cannot
agree with plaintiff’s characterization of Neumann as holding that, for purposes of the anti-SLAPP statute as opposed
to the First Amendment, the wedding review was on a matter
of public concern. The court’s focus on the First Amendment
belies that characterization. The court explained at the
outset of its analysis that the “determination of the legal
sufficiency of Neumann’s defamation claim hinges on
whether Liles’s statements are protected under the First
Amendment[.]” 

. After reviewing state common
law and some of the Supreme Court’s First Amendment decisions concerning defamation actions, especially Milkovich,
the court stated that, “to determine whether a defamatory
statement is protected under the First Amendment, the
first question is whether the statement involves a matter of
public concern.” 

. If so, “then the dispositive question is whether a reasonable factfinder could conclude that
the statement implies an assertion of objective fact.” 

.
         Accordingly, considering that plaintiff has not asked
us to overrule Neumann, the court’s determination that the
online wedding review in Neumann was on a matter of public concern that triggered the First Amendment is relevant.
That negative online review of a wedding venue is in many
respects like the negative online review of plaintiff’s piano
store in this case, and both cases involved private-figure
plaintiffs and nonmedia defendants. In view of plaintiff’s
arguments, we apply Neumann and conclude that, under
Cite as 

 (2022)                                   829

that case, the online review in this case was on a matter of
public concern.
    3. The impact of speaker motive and identity on public
       concern
         We now turn to the impact of the speaker’s motive
or identity on the public concern analysis. Although the
Court of Appeals did not treat it as dispositive in this case,
it declared that “a speaker’s motive or purpose in speaking is relevant to whether speech is protected by the First
Amendment.” Lowell, 

 (emphasis in original). To support its conclusion, it cited public employment
cases from which Dun & Bradstreet derived its public concern test, including the following:
   “[W]hen a public employee speaks not as a citizen upon
   matters of public concern, but instead as an employee upon
   matters only of personal interest, absent the most unusual
   circumstances, a federal court is not the appropriate forum
   in which to review the wisdom of a personnel decision taken
   by a public agency allegedly in reaction to the employee’s
   behavior.”

Connick v. Myers, 

, 

, 

 (1983). The Court of Appeals further reasoned that the
motive of the speaker was properly part of the content, form,
and context analysis, as part of the context of a statement,
in public employment cases in Oregon. Lowell, 

 (citing one of its earlier cases). The Court of Appeals
also cited Harley-Davidson, 

, as support.
In that case, this court held that a fake customer complaint
written by a competitor and sent directly to a mutual distributor was not speech on a matter of public concern. The
Court of Appeals acknowledged that this court “gave little
explanation of its specific reasoning” but concluded that
the court derived its result from the touchstone principle
that to be speech on a matter of public concern, the speech
must be in the interest of democratic dialogue and this court
determined that “the interest in democratic dialogue [was]
non-existent.” Lowell, 

.
        The parties disagree on whether the Court of Appeals
was correct. Plaintiff argues that the Court of Appeals was
830                                           Lowell v. Wright

correct, particularly in treating public employment cases as
instructive, and defendants argue the opposite.
         In the public employment cases, the relationship
between whether the topic is one of public concern and the
motive of the speaker is as follows: When the topic truly
is one of public concern, it is likely that the employee is
speaking in her capacity as a citizen, which is protected
by the First Amendment irrespective of the fact that the
government is also the speaker’s employer. But, when the
topic is narrow or one of private concern, it is likely that
the employee is speaking in her capacity as an employee,
which any employer, regardless of whether that employer
happens to be the government, may have a legitimate interest in controlling. Plaintiff interprets Dun & Bradstreet as
the Supreme Court’s endorsement of a similar approach
in the defamation context because it applied the content,
form, and context approach crafted for public employment
cases. Plaintiff argues that, when a writer makes negative comments about a business (the content), the writer’s
status—business competitor or disgruntled customer (the
context)—and whether she masks her status in her delivery
of those comments (the form) are instructive as to whether
the comments truly are on matters of public concern. When
the writer is a competitor, the logic goes, it is likely, no matter how the comments are presented, that the subject is one
of private concern. When the writer is a disgruntled customer, it is likely that the matter is one of public concern
(albeit not one of overwhelming public concern).
         That reasoning is mistaken because the logic is not
parallel in public employment cases and defamation cases.
The public employment cases reason from the topic of the
speech to determine which relationship between the parties (the citizen-government relationship or the employee-employer relationship) ought to control the outcome. In other
words, whether speech is on a matter of public concern is a
tool of a larger inquiry in public employment cases. In the
context of defamation, whether speech is on a matter of public concern is the object of the inquiry. Plaintiff asks us to
reason from the status of the speaker to determine whether
the topic is of public concern, going so far as to suggest
that, whenever a competitor or its employee speaks about
Cite as 

 (2022)                                831

another business, the speech is of purely private concern.
That is mistaken. Defendants correctly note that the rules
arising from the public employment context are intended to
balance interests where the two players at issue each have
two statuses, citizen-employee and government-employer.
In deciding whether the topic of the speech was of public
or private concern, the court decides which status controls
(the citizen-government or employee-employer) and thereby
which interests ought to control (a citizen’s interest in her
free speech rights or an employer’s interest in appropriately
regulating the workplace). Here, the object of the inquiry is
to determine whether the speech is on a topic of public or
private concern.
         The Supreme Court’s decision in Garcetti v. Ceballos,

, 

, 

 (2006), supports
that analysis. In that case, a public employee wrote a memo
on what he believed to be serious internal misconduct pursuant to his job duties. 

. He was reassigned and
denied a promotion soon after. 

. He sued, citing
First Amendment protections for speech relating to matters of public concern because whether the department was
corrupt was a matter of public concern. 

 The Supreme
Court held that the memo was not protected by the First
Amendment because it was written pursuant to his official
duties, i.e., the topic of the speech was part of his duty as
an employee, so he wrote it as an employee, not as a citizen.

. Thus, the government’s interests as an employer
regulating a workplace controlled. Whether the employee, in
addition to having a job duty, was motivated to act because
he believed that he was addressing an issue of public concern was not relevant in determining whether the speech
was First Amendment-protected. 

         Focusing on the motive of the speaker also distracts
from the question central to the inquiry: Does the speech
bear on public discourse, self-governance, or the ordering of
society? There is no reason to suppose that the exact same
words delivered in the exact same way have different ramifications for those areas of constitutional concern because
the speaker’s motive is different in the two cases. A useful
example of that comes from a Connecticut case, Gleason v.
Smolinski, 319 Conn 394, 125 A3d 920 (2015). In that case,
832                                            Lowell v. Wright

the defendants, family members to a missing person, posted
missing person signs around the plaintiff’s neighborhood.
Id. at 396-97, 125 A3d at 927. The defendants believed that
the plaintiff, the missing person’s girlfriend, was involved
in his being missing or dead. Id. at 396, 125 A3d at 927.
Although there was substantial evidence that some of the
defendants’ motive in posting the signs was to harass the
plaintiff so that she would divulge information about the
missing person, the Connecticut Supreme Court concluded
that the matter was of public concern because it related to a
police investigation and finding a missing person. Id. at 433
& n 33, 125 A3d at 949 & n 33. The fact that the defendants
were partially motivated by a desire to harm the plaintiff
did not detract from the speech being on a matter of public
concern, a police investigation of a missing person.
         Additionally, adoption of the Court of Appeals’ analysis would be inconsistent with First Amendment values,
which include “secur[ing] the widest possible dissemination of information from diverse and antagonistic sources.”
New York Times, 

 (internal quotation omitted).
Motives like competition, hatred, and ridicule may underlie speech vital to the public discourse, which the First
Amendment is intended to protect. Allowing the government to scrutinize the motive of a speaker to determine the
scope of that speaker’s protection from government enforcement against her under the First Amendment invites the
government to define the contours of the public discourse
according to the motives it finds the worthiest. Rather than
giving expression the “breathing space” it needs to survive,

, we would suffocate it.
      4. Whether the speech is susceptible to true-false analysis
         Having concluded that Neumann applies to this
case such that the speech is on a matter of public concern
and that motive and speaker identity do not alter that
outcome, we turn to the last step in applying the First
Amendment public comment defense, in view of defendants’
position that we are unable to make that determination
on this record. That last step is whether the speech is susceptible to being proved true or false under Milkovich. The
First Amendment precludes liability for statements that a
Cite as 

 (2022)                                 833

reasonable factfinder could not find to imply an assertion of
objective fact. The Court of Appeals applied the Unelko test
adopted in Neumann to resolve that question, and we agree
with its conclusions.

         As discussed above, the three-part inquiry for discerning whether speech is susceptible to a true-false
analysis is as follows: “(1) whether the general tenor of the
entire publication negates the impression that the defendant was asserting an objective fact; (2) whether the defendant used figurative or hyperbolic language that negates
that impression; and (3) whether the statement in question
is susceptible of being proved true or false.” Neumann, 

. In the present matter, we examine how the three-part inquiry applies to three different statements: (1) the
remark that plaintiff misrepresented whether his business
could sell new Steinway pianos, (2) the statement that the
salesman misrepresented the age of the Yamaha C-7 piano,
and (3) “this guy can’t be trusted.”

         We agree with the Court of Appeals that the
Steinway and Yamaha statements are sufficiently factual
to be actionable but that “this guy can’t be trusted” is not.
Lowell, 

. Starting with the last prong
of the Unelko test, whether plaintiff’s business misrepresented its ability to sell new Steinway pianos and whether
the salesman misrepresented the age of the Yamaha piano
are factual matters with truth values. Straightforward
sets of facts would make Wright’s statements in the review
either true or false. Applying the two other prongs of the
Neumann inquiry does not alter that result with respect to
those two statements. Based on the record of the contents
of the review, nothing in the review’s “general tenor” would
negate the impression that the writer really was asserting
that the business and its employees were misrepresenting
facts about pianos to customers. Although there is some evidence that the review used evocative language, such as the
store “smelled like grandma’s attic,” that language is not so
figurative or hyperbolic as to undermine a reader’s impression that the review is alleging that plaintiff’s business lied
to the writer about selling new Steinway pianos and the age
of the Yamaha piano on display. See Milkovich, 

834                                          Lowell v. Wright

(considering whether the writer’s use of “loose, figurative,
or hyperbolic language” or the “general tenor of the article”
negated the impression that the writer “was seriously maintaining that petitioner committed the crime of perjury”).
          The analysis differs with respect to the “this guy
can’t be trusted” remark. In isolation, the statement is subjective and not susceptible to being proved true or false.
And, viewing the remark in the context of the whole review
does not alter that result. As the Court of Appeals explained
in its opinion, Lowell, 

, the remark can be
best understood as a conclusion that the writer drew from
the “facts” presented in the review: The business misrepresented whether it could sell new Steinway pianos and the
age of a piano on display, and therefore its owner “can’t be
trusted.” The writer’s conclusion implies no facts beyond
those already offered in the review and is not actionable.
      5. Whether to alter defamation law in Oregon by following Obsidian Finance
         Because the public comment First Amendment
defense is available to defendants and applies to two statements, we address what plaintiff’s burden is to show defendants’ fault and the media/nonmedia distinction that applies
when a private figure plaintiff sues a nonmedia defendant.
Defendants ask that, if Neumann did not already abolish
the distinction between media and nonmedia defendants
in defamation claims brought by private figures, we now
should do so and follow the Ninth Circuit’s approach in
Obsidian Finance Group, LLC v. Cox, 

(9th Cir 2014). We decline to abolish the media/nonmedia
distinction. The principles of stare decisis counsel that result
for a few reasons. First, the facts of the case before us are
far from an ideal vehicle for considering the nuances of the
question with which we are confronted, and amici’s hypotheticals are no substitute. Second, we are not persuaded
by the strength of Obsidian Finance’s logic and support to
overrule our existing precedent.
         At the outset, we note that “the party seeking to
change a precedent must assume responsibility for affirmatively persuading us that we should abandon that precedent,”
and we assume, grounded in the principle of stare decisis,
Cite as 

 (2022)                                 835

that “fully considered prior cases are correctly decided.”
State v. Ciancanelli, 

, 

 (2005).
Stare decisis is “a prudential doctrine that is defined by the
competing needs for stability and flexibility in Oregon law.”
Farmers Ins. Co. v. Mowry, 

, 

(2011). Importantly, “[s]tare decisis does not permit this
court to revisit a prior decision merely because the court’s
current members may hold a different view than its predecessors about a particular issue. At the same time, stare
decisis is not absolute.” Couey v. Atkins, 

, 

 (2015).
         This court held in Wheeler that plaintiffs must
prove that a defendant acted with actual malice to obtain
presumed damages only if the defendant is a media defendant. 

. That has been an established rule of
the law of defamation in Oregon for decades. Wheeler and
its related cases do not suffer from some of the faults that
have compelled us to overrule precedent in the past. The
rule was not adopted in what amounted to dicta or without
explanation. See Couey, 

 (identifying the above
as a reason to overcome the application of stare decisis).
Wheeler discussed its decision in detail, relying on Gertz’s
own emphasis on the fact that it dealt with media defendants. See 

-10 (quoting Gertz extensively). Nor
was Wheeler’s analysis clearly incorrect, see Couey, 

 (identifying that as an additional reason to overcome
the application of stare decisis): Gertz did not itself resolve
whether it applied to nonmedia defendants.
         Defendants and amici urge that the time has come
to overturn Wheeler and to abolish the media/nonmedia distinction because it has become incompatible with modern
times and technology. First, they argue that the distinction
creates a “double standard” at odds with the Supreme Court’s
current approach. They note that the Supreme Court has
said that the press has no special speech privileges distinct
from those of other speakers, see Citizens United v. Federal
Election Comm’n, 

, 

, 

 (2010), and that all speakers, whether or not members
of traditional media, should have the same standards of liability. Second, defendants and amici argue that Wheeler is
at odds with the majority approach of most federal appellate
836                                           Lowell v. Wright

courts, including the Ninth Circuit. Given the split between
Oregon state law and the law binding the Ninth Circuit,
defendants and amici argue that Oregon defamation defendants will be less protected than their out-of-state counterparts facing similar suits in diversity cases in federal
court. Amici further argue that Wheeler conflicts with the
approach of the majority of states that have addressed the
question. Defendants urge, in summary, that “[t]here should
be no different constitutional analysis for a news reporter[ ]
(media defendant), a food-critic blogger (arguably mediadefendant or non-media defendant), a private citizen review
on Google or Yelp (non-media defendant), and any other person who posts a consumer review that is accessible to the
public.”
         We begin with defendants’ concerns about the
changing times and later address their arguments based
on case law. Notably, defendants’ arguments have little to
say about the facts of this case, with good reason: Wright is
not a blogger or a food critic. He is an individual who wrote
a review of a retailer and posted it to the internet, just as
millions of other Americans do. Artistic Piano is just a store
that sells musical instruments and accessories. At bottom,
defendants argue that the media/nonmedia distinction
should be abandoned as clearly wrong because it presents
a difficult line-drawing problem, but they make that argument in a case in which the line is entirely clear: Defendants
are not media under any workable definition. We also note
that the resolution of the issue may make little practical
difference under the circumstances of this case: Plaintiff is
correct that he could make the required showing of actual
malice to overcome summary judgment. Plaintiff’s theory of
the case is not that the review’s statements are just false; it
is that the conversation described in the review was entirely
made up, and plaintiff adduced evidence in support of that
theory. Because at summary judgment all reasonable inferences are drawn in the light most favorable to the nonmoving party, a factfinder may very well conclude that the
conversation reported in the review never took place. And,
if defendants described an entirely made-up conversation,
anything they claim was “said” in it would be made knowing
that it was false or with reckless disregard for the truth, i.e.,
Cite as 

 (2022)                                                    837

with actual malice, the very fault standard for which defendants advocate.
        In short, we have before us a case in which the
defendants are admittedly not media and may very well
have acted with actual malice. Defendants do not engage
with those facts in their efforts to persuade us to overrule
the media/nonmedia distinction for purposes of determining what showing of defendants’ fault plaintiff must make.
Stare decisis is not mechanistic, Mowry, 

, but it
is demanding. And it does not permit us to destabilize over
40 years of precedent on the strength of a few hypotheticals
and some abstract concerns about modernity. We acknowledge the competing need for flexibility in a modern world
and recognize that old rules can become outmoded with
the passage of time, see 

, but this case simply
does not present an example of how the rule has become
outmoded. It instead presents facts to which the rule can be
straightforwardly applied.6
         In the absence of an argument that the facts illustrate why the existing media/nonmedia distinction ought
to be overruled, defendants attempt to meet their burden
to show why precedent should be abandoned by appealing
to case law from other jurisdictions, particularly Obsidian
Finance. We are not persuaded that defendants’ argument
meets that burden, nor do we find Obsidian Finance’s logic
persuasive enough to convince us that our longstanding
approach ought to be abandoned.
        In Obsidian Finance, the Ninth Circuit acknowledged that the Supreme Court has not directly addressed
whether its First Amendment defamation rules apply
equally to the institutional press and to private, non-media defendants. 

. However, the Ninth
Circuit held that a defendant blogger’s allegations that a

     6
       Our colleagues criticize us for not announcing a test to distinguish media
from nonmedia. 369 Or at 842 (Balmer, J., concurring). The rationale for not
offering a test follows from the discussion above: The facts of this case do not
lend themselves to the nuances that we would need to consider to craft one, and
amici’s hypotheticals are no substitute. We have no difficulty applying the distinction to the facts of this case: Wright and Artistic Piano are clearly not media
defendants, and therefore the plaintiff need not show actual malice to obtain
relief.
838                                         Lowell v. Wright

bankruptcy trustee was corrupt were protected by the First
Amendment, though the defendant was not a trained journalist and “apparently ha[d] a history of making similar
allegations and seeking payoff in exchange for retraction.”
Id. at 1287, 1291. The court’s rationale, like defendants’
and amici’s argument before this court, was largely based
on decisions by the Supreme Court—in contexts other than
defamation claims—rejecting constitutional privileges for
the institutional press greater than those available to individuals engaged in the same activities. See id. at 1290 (citing cases). Citing decisions from other circuits, the Ninth
Circuit concluded that the First Amendment defamation
rules “apply equally to the institutional press and individual speakers.” Id. at 1291.
         We stand by our previous reasoning, that the legal
context here, a defamation claim, matters for the purposes
of whether and how the First Amendment must alter state
common law. Defamation law in Oregon has developed over
time mainly in the common-law tradition (the anti-SLAPP
statute is a notable exception). The common-law libel cause
of action exists to provide remedies in individual cases of
harm caused by false speech, and liability is by no means
a foregone conclusion, even in cases of libel per se, as a
result of common-law privileges and defenses recognized
in Oregon. We have already discussed in detail how the
Supreme Court approaches defamation cases. In our view,
the Supreme Court’s approach in state common-law defamation cases is different from cases that involve a jurisdiction
that enacts and seeks to enforce laws against speakers that
are not content-neutral or suffer from similar constitutional
defects. See Hepps, 

 (acknowledging that “a
suit by a private party is obviously quite different from the
government’s direct enforcement of its own laws”).
        And, the Court has recognized that the common-law
speech-based torts are varied and call for an appreciation of
the specific context at issue. See, e.g., Zacchini v. Scripps-Howard Broadcasting Co., 

, 

, 

 (1977). In Zacchini, the Ohio Supreme Court
had held that a television news broadcast of the plaintiff’s
“human cannonball” act in its entirety without the performer’s permission was protected as reporting on a matter of
Cite as 

 (2022)                                839

public interest, relying on the Court’s decision in a false
light case, Time, Inc. v. Hill, 

, 

, 

 (1967). The Supreme Court reversed, noting
that the tort in Time “involved an entirely different tort”
from the plaintiff’s cause of action for appropriation of his
right of publicity under Ohio law, Zacchini, 

,
and explained that the “differences between these two torts
are important,” 

. The Court also recognized that
its line of cases involving the First Amendment and defamation, including Gertz, were inapplicable. 

.
         As a result, we are not persuaded that the Supreme
Court’s First Amendment cases involving other legal contexts are or should be determinative as to state law defamation cases. For example, in Bartnicki v. Vopper, 

, 

, 

 (2001), a case cited
in Obsidian Finance, 

, the plaintiffs’ mobile
phone conversation was unlawfully intercepted and recorded
by an unknown third party during a labor dispute, and
one defendant gave the recording to the media defendants.
After the recording was broadcast over radio and published
in newspapers, the plaintiffs brought claims for damages
based on federal and Pennsylvania wiretap acts that prohibited disclosure of content of communications that a party
has reason to know were obtained unlawfully. The defendants asserted that, if they violated the wiretap laws, their
disclosures of the conversation between the plaintiffs were
protected by the First Amendment. Id. at 518-21.
         The Third Circuit Court of Appeals evaluated the
statutes and concluded that they deterred more speech than
necessary to protect the privacy interests involved and therefore reversed the district court’s denial of the defendants’
motion for summary judgment. Id. at 521-22. Applying its
framework for reviewing statutes challenged under the
First Amendment, the Supreme Court agreed that the statutes were content-neutral. Id. at 526-27. However, the Court
noted that it repeatedly had held that, if the press has lawfully obtained truthful information, state action punishing
publication of information of public concern will generally
be unconstitutional. Id. at 527-28. The Court concluded that
the call between the union president and the union’s chief
negotiator, in which the president threatened use of physical
840                                                           Lowell v. Wright

harm during ongoing negotiations over the terms of compensation for teachers at the public high school, was on a
matter of public concern. Id. at 535. Thus, the question in
the case was whether the First Amendment protected the
defendants when they had reason to know that the interception of the phone call was unlawful. The Court in Bartnicki
acknowledged the communication privacy interest that the
statutes protected but concluded that, based on the facts of
the case—particularly the kind of speech that was publicized and the fact that none of the defendants had performed
the interception—all the defendants were protected from
liability for the publication. Id.7 Similarly, Cohen v. Cowles
Media Co., 

, 

, 

(1991) (contract claim for breach of confidentiality), and First
National Bank of Boston v. Bellotti, 

, 

, 

 (1978) (freedom of speech challenge to
a Massachusetts criminal statute forbidding banks and corporations from making campaign contributions or expenditures to influence public votes on referenda other than those
affecting their property, business, or assets), arise in contexts that are dissimilar to common-law defamation claims.
        Finally, we have reviewed the other circuit court
decisions that the Ninth Circuit also treated as persuasive in concluding that the First Amendment defamation
rules apply both to the institutional press and nonmedia
defendants. Three of the cases are not on point, because
they do not involve private figure plaintiffs and nonmedia
defendants, thus obviating the need to decide the question
of how the First Amendment applies in a defamation claim
between two wholly private, nonmedia parties. See Garcia
v. Bd. of Ed. of Socorro Consol. Sch. Dist., 777 F2d 1403,
1408 (10th Cir 1985) (the plaintiffs, school board members
     7
       It is unclear why the Court relieved all defendants of liability. See 

 at 525
n 8 (stating only that “we draw no distinction between the media respondents
and Yocum[, the individual who gave the recording to the media]. See, e.g., New
York Times Co. v. Sullivan, 

, 

, 

(1964); First Nat. Bank of Boston v. Bellotti, 

, 

, 

 (1978)”). But, as in New York Times and the Court’s other cases
involving publication by the press of information it obtains on matters of public
concern, it is apparent that the Court was concerned with freedom of the press.
That concern, rather than an interest in treating all defendants alike in defamation and other cases with a First Amendment dimension, would be a likely basis
for the Court’s treatment of Yocum.
Cite as 

 (2022)                                  841

in a defamation cross-claim against a fired school superintendent, were public officials); Avins v. White, 627 F2d 637,
648 (3rd Cir 1980) (the plaintiff was a public figure); Davis
v. Schuchat, 510 F2d 731, 734 n 3 (DC Cir 1975) (the defendant was a reporter). Although another case stated that,
whether the defendant is media or nonmedia is “irrelevant
to the question of what level of constitutional protection
that right is to receive,” In re IBP Confidential Business
Documents Litigation, 797 F2d 632, 642 (8th Cir 1986), that
case concerned the degree to which the First Amendment
right to petition was implicated and should be protected. It
is unsurprising that the Eighth Circuit concluded that the
media/nonmedia distinction should be irrelevant when the
context is the defendant’s exercise of the right to petition the
government.
         And we are not persuaded by the two remaining
cases, which emphasize the difficulties in defining media.
See Snyder v. Phelps, 

, 219 n 13 (4th Cir 2009),
rev’d on other grounds, 

, 

, 

 (2011) (stating—as to an intentional infliction
of emotional distress claim—that “[a]ny effort to justify a
media/nonmedia distinction rests on unstable ground, given
the difficulty of defining with precision who belongs to the
‘media’ ”); Flamm v. American Ass’n of University Women,

 (2d Cir 2000) (“We agree that a distinction drawn according to whether the defendant is a member
of the media or not is untenable.”). Thus far, the Supreme
Court itself has recognized that distinction in defamation
cases.
          The values underlying defamation claims have been
recognized by this court for over 150 years, see Neumann,

 (citing Hurd v. Moore, 

 (1863)), and in
the common law for much longer, see Milkovich, 

 (noting that the common-law cause of action has existed
since “the latter half of the 16th century”). As discussed earlier, the Supreme Court has repeatedly recognized the strong
interests of the states in providing remedies for harms to
reputation and the individual and societal benefit in preventing and remedying invidious false speech. Considering
the Court’s precedents in defamation cases and its overall
approach to assessing the interests of speakers in light of
842                                         Lowell v. Wright

the legal context (and concomitant competing interests), we
are not persuaded that the Supreme Court requires states
to alter their common law by applying First Amendment
protections in defamation cases brought by private figures
against nonmedia defendants. We therefore decline to overrule existing precedent based on Obsidian Finance.
        In sum, we affirm the decision of the Court of
Appeals in part on different grounds. On remand to the
trial court, plaintiff’s libel claim is subject to the First
Amendment defense, but plaintiff will not be subject to a
heightened proof-of-fault requirement based on the Supreme
Court’s First Amendment cases that apply to media defendants in defamation cases.
         The decision of the Court of Appeals is affirmed in
part and reversed in part. The judgment of the circuit court
is reversed, and the case is remanded to the circuit court for
further proceedings.
        BALMER, J., concurring.
         The majority holds that Oregonians who publish
a review of a local business may be liable for defamation
without any showing of fault on their part. In so doing, the
opinion upholds an untenable distinction between “media”
and “nonmedia” defendants without clearly articulating the
differences between the two. In my view, any approach that
retains that distinction must be supported by a workable
test to delineate media from nonmedia, and the majority
makes no attempt to provide that test. I would follow the
federal and state courts that have rejected that distinction
for purposes of defamation claims by a private figure and
would hold that the First Amendment equally protects the
media and private individuals.
          The majority also casts doubt on this court’s decision in Neumann v. Liles, 

, 

 (2016),
based on arguments that are not made by the parties and
are unrelated to the case before us. I would not reach beyond
the facts of this case to call into question a recent decision
of this court that no party here has challenged and that was
correctly decided.
Cite as 

 (2022)                                  843

         Thus, although I agree with much of what the majority opinion holds—including its discussion of the missing
text of the review, its conclusion regarding the role of motive
in identifying speech of public concern, and its ultimate
disposition—I disagree with key parts of the majority’s First
Amendment analysis. I therefore respectfully concur in the
judgment, but not in all of the analysis.

         At issue in this case are two First Amendment protections that apply in defamation cases, which I address in
turn. The first is that a plaintiff must show that a defendant
acted with some level of fault, with the specific level of fault
depending on the identities of the parties. The second is that
a statement must be provably false to be actionable if the
statement involves matters of public concern.

         As to the first protection, the Supreme Court has
indicated that the level of fault that a plaintiff must show
varies with the circumstances. If the plaintiff is a public figure, for example, the plaintiff must show that the allegedly
defamatory statement was made with “actual malice.” See
New York Times Co. v. Sullivan, 

, 

, 

 (1964); Curtis Publishing Co. v. Butts,

, 

, 

 (1967). A
plaintiff who is not a public figure must show that a defendant acted with negligence (or some higher level of fault) to
recover, at least in cases involving media defendants. See
Gertz v. Robert Welch, Inc., 

, 

,

 (1974). Gertz further held that, to recover
presumed or punitive damages, a plaintiff who is not a public figure must show that the defendant acted with actual
malice. 

.

         Following Gertz, state and federal courts have split
on whether Gertz’s fault requirements apply in cases involving nonmedia defendants, as described below. For its part,
this court held several decades ago that Gertz did not apply
to nonmedia defendants, as the majority explains. 369 Or at
818 (citing Harley-Davidson v. Markley, 

, 

 (1977); Adams v. State Farm Mutual Auto. Ins. Co.,

, 

 (1978); Wheeler v. Green, 

, 

 (1979)).
844                                              Lowell v. Wright

         That approach to Gertz, however, fails to engage
with the increasingly difficult question of how to distinguish clearly between media and nonmedia defendants
and, for that reason, places this court at odds with recent
decisions from other state and federal courts. Those cases,
and the rapidly changing nature of media, communications,
and public discourse, counsel that reevaluating the media/
nonmedia distinction may lead to a sounder approach to protecting our “profound national commitment to the principle
that debate on public issues should be uninhibited, robust,
and wide-open.” New York Times, 

. In short, I
would reject the media/nonmedia distinction to which the
majority adheres and would reconsider this court’s limitation of Gertz to media defendants in Harley-Davidson,
Wheeler, and Adams, in light of more recent case law and
the changing media landscape.
        As identified by the majority, one helpful recent federal case is Obsidian Finance Group, LLC v. Cox, 

 (9th Cir), cert den, 

 (2014), where the
Ninth Circuit held that the Gertz fault rules should apply
equally to media and nonmedia defendants. 369 Or at 834.
Obsidian Finance noted that, of the six federal circuit courts
that had then reached the issue, all had extended the First
Amendment protections of “[New York Times v.] Sullivan
and its progeny,” including Gertz, to media and nonmedia
defendants. 

. The Ninth Circuit agreed with
that approach, observing:
   “The protections of the First Amendment do not turn
   on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in
   conflict-of-interest disclosure, went beyond just assembling
   others’ writings, or tried to get both sides of a story. As the
   Supreme Court has accurately warned, a First Amendment
   distinction between the institutional press and other speakers is unworkable ….”

 The Court therefore applied the Gertz negligence requirement for private defamation actions in that case involving a
nonmedia defendant.
         The majority rejects Obsidian Finance and the cases
it cites as variously inapposite or unpersuasive. 369 Or at
Cite as 

 (2022)                                845

840-41. The majority is correct that some of those cases
are not precisely on point here, because they considered
only whether the New York Times fault rule for defamation
actions by public figures extended to nonmedia defendants
(as it already does in Oregon, see Wheeler, 

(“We conclude that all defendants, not only those associated
with the media, continue to be protected by the New York
Times rule in cases involving comment upon public officials
and public figures.”)) rather than the Gertz fault rule for
plaintiffs that are not public figures. E.g., Garcia v. Bd. of
Ed. of Socorro Consol. Sch. Dist., 777 F2d 1403, 1410 (10th
Cir 1985), cert den, 

 (1986); Avins v. White, 627
F2d 637, 649 (3rd Cir), cert den, 

 (1980).
         At the same time, however, the majority disregards
the significance of the cases cited by Obsidian Finance
as a set as well as the persuasive reasoning of the Ninth
Circuit. Together with Obsidian Finance, those cases show
that recent federal court decisions have uniformly rejected
the media/nonmedia distinction in the First Amendment
context and have done so for two primary reasons. First,
in the context of the evolving communications and media
landscape, with the boundary between traditional media
and new or social media disappearing, that distinction is
“unworkable,” Obsidian Finance, 

, “rests on
unstable ground,” Snyder v. Phelps, 

, 219 n 13
(4th Cir 2009), aff’d, 

, 

, 

 (2011), or is “untenable,” Flamm v. American Ass’n of
University Women, 

 (2d Cir 2000). Second,
that distinction is at odds with the fundamental First
Amendment principle that the value of speech “ ‘does not
depend upon the identity of its source, whether corporation,
association, union, or individual.’ ” In re IBP Confidential
Bus. Documents Litigation, 797 F2d 632, 642 (8th Cir 1986),
cert den, 

 (1987) (quoting First National Bank of
Boston v. Bellotti, 

, 

, 

 (1978)).
        The federal courts are not alone. Several state
courts have taken a similar tack, either by explicitly applying Gertz to nonmedia defendants or applying a functionally equivalent fault-based rule under state law. See, e.g.,
Antwerp Diamond Exch. v. Better Bus. Bur., 130 Ariz 523,
846                                            Lowell v. Wright

528, 

 (1981) (applying Gertz to nonmedia
defendant); Bierman v. Weier, 

 (Iowa
2013) (Hecht, J., concurring in part and dissenting in part)
(listing cases and noting that 22 state and federal jurisdictions apply Gertz to nonmedia defendants, while only eight
states, including Oregon, have held that Gertz does not
apply to nonmedia defendants); Lester v. Powers, 

 (Me 1991) (holding that Maine common law requires
a showing of “fault amounting at least to negligence” in defamation suits against nonmedia defendants); Jacron Sales
Co., Inc. v. Sindorf, 276 Md 580, 592, 

 (1976)
(“[W]e conclude as a matter of state law that the Gertz holding should apply to media and non-media defendants alike
….”); Maethner v. Someplace Safe, Inc., 

 (Minn 2019) (concluding that the limitation on presumed damages in Gertz applies equally to media and non-media defendants in suits by private plaintiffs); Bender v.
City of Seattle, 99 Wash 2d 582, 599, 

 (1983)
(citing Gertz and requiring a showing of fault in actions by
private individuals against nonmedia defendants). At least
one state has gone even farther and extended the New York
Times actual malice requirement to cases involving private
plaintiffs and nonmedia defendants based on statements
involving matters of public concern. See Durando v. Nutley
Sun, 209 NJ 235, 250, 37 A3d 449, 458 (2012) (“Today, in
New Jersey the actual-malice standard protects both media
and non-media defendants who make statements involving
matters of public concern, regardless of whether the targets
of the statements are public figures or private persons.”).
         The Restatement (Second) of Torts takes the same
approach as many of those cases, stating that, although the
precise holding of Gertz was limited to media defendants,
“the principle of the Gertz decision would appear to be broad
enough to cover” situations involving only private, nonmedia
individuals. Restatement (Second) of Torts § 580B comment e
(1977). As the Restatement explains,
   “It would seem strange to hold that the press, composed of
   professionals and causing much greater damage because
   of the wider distribution of the communication, can constitutionally be held liable only for negligence, but that a
   private person, engaged in a casual private conversation
Cite as 

 (2022)                                    847

   with a single person, can be held liable at his peril if the
   statement turns out to be false, without any regard to his
   lack of fault.”

 The Restatement goes on to explain that, even if Gertz
itself is limited to media defendants, “the common law of
the states is almost certain to apply the same standard” of
requiring a fault showing for private defamation actions. 

         The majority responds by emphasizing that the defamation context is unique among First Amendment applications, and states, “Thus far, the Supreme Court itself has
recognized that [media/nonmedia] distinction in defamation
cases.” 369 Or at 841. But the Court itself has never taken
up the question of whether Gertz applies to nonmedia defendants. To the contrary, when the Court has considered the
media/nonmedia distinction, even in the context of defamation, the Court has consistently declined to embrace that
distinction and just as often has strongly cautioned against
employing it.
         For example, in Dun & Bradstreet, Inc. v. Greenmoss
Builders, 

, 

, 

 (1985),
the Court considered a defamation action by a private figure
(a construction contractor) against a nonmedia defendant (a
credit reporting agency). In resolving that case, the Court
did not rely on a media/nonmedia distinction, but instead
concluded that the speech at issue was not of public concern.
See 

 (White, J., concurring in the judgment).
         The majority discusses Dun & Bradstreet, 369 Or
at 825-27, but it does not mention that, although the plurality opinion did not decide the issue, a majority of the
Court in that case nevertheless explicitly rejected the
media/nonmedia distinction in the defamation context.
At least five justices agreed that, “in the context of defamation law, the rights of the institutional media are no
greater and no less than those enjoyed by other individuals
or organizations engaged in the same activities.” Id. at 784
(Brennan, J., dissenting, joined by Marshall, Blackmun, and
Stevens, JJ.); see also id. at 773 (White, J., concurring in the
judgment) (“I agree with Justice BRENNAN that the First
Amendment gives no more protection to the press in defamation suits than it does to others exercising their freedom
848                                          Lowell v. Wright

of speech. None of our cases affords such a distinction; to the
contrary, the Court has rejected it at every turn.” (Uppercase
in original; emphasis added.)).
         The Court reaffirmed that principle more recently
in Citizens United v. Federal Election Comm’n, 

, 

, 

 (2010), where the Court
noted that treating media differently from nonmedia in the
First Amendment context is particularly fraught. “With the
advent of the Internet and the decline of print and broadcast
media,” the Court observed, “the line between the media and
others who wish to comment on political and social issues
becomes far more blurred.” 

. As a result, the Court
has “consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of
other speakers.” 

 (emphasis added). Thus, although the
Court has never specifically held that Gertz applies to a non-media defendant, the majority’s brief assessment that “the
Supreme Court has recognized that distinction in defamation cases,” 369 Or at 841, is belied by the Court’s own statements emphasizing that it has drawn no such line.
         Few would disagree that, as the Court observed in
Citizens United in 2010, the line between the media and non-media is indeed “blurred” and that it has only become more
so in the last decade. Even if the Court had endorsed such
a distinction in the abstract, we would be left with the difficult task of crafting a workable test to distinguish between
types of defendants. It is no secret that, in today’s world of
internet-based communication and social media, private
individuals and groups who are not part of any kind of “traditional media” can share similarly powerful platforms for
the dissemination of speech on matters of public concern.
         The difficulty in drawing the media/nonmedia
distinction has also been highlighted by other courts and
scholars. See, e.g., Snyder, 

 n 13; Flamm,

; Ryan M. Walters, When Can You Shoot the
Messenger? Understanding the Legal Protections for Entities
Providing Information on Business Products and Services
in the Digital Age, 96 Or L Rev 185, 191 (2017) (“The barrier between a news organization and an individual has
never been lower.”); Clay Calvert, Emma Morehart & Sarah
Cite as 

 (2022)                                 849

Papadelias, Plausible Pleading & Media Defendant Status:
Fulfilled Promises, Unfinished Business in Libel Law on
the Golden Anniversary of Sullivan, 49 Wake Forest L Rev
47, 73-83 (2014) (describing three reasons why the media/
nonmedia distinction “should be obliterated”: difficulties in
defining “media” in a digital world, the democratization of
media empowering private individuals to respond to defamation, and notions of speaker equality espoused in Citizens
United, as discussed above).
         Even if a workable distinction between media and
nonmedia might be possible, the majority makes no attempt
to explain how that distinction would be made. The majority asserts that defendants are “not ‘media’ under any definition.” 369 Or at 809. But in making that assertion, the
majority does not provide any definition of media. Although
dictionary definitions are of limited use in discerning the
meaning of Supreme Court opinions, a few examples nevertheless illustrate that defendants are “media” under at
least some definitions of the term. For example, Black’s
Law Dictionary defines media as certain means of communication: “Collectively, the means of mass communication;
specif., television, radio, newspapers, magazines, and the
Internet regarded together.” Black’s Law Dictionary 1175
(11th ed 2019). Here, the allegedly defamatory statements
were made through the internet, which is one of those listed
“media.” More importantly, the statements were posted as
a review on Google. A central purpose of posting an online
review is to make the writer’s views regarding a product
or service available to the broader public—including potentially any person in the world with an internet connection and a browser. The extent of that potential reach is
exactly the “means of mass communication” we think of as
“media.”
          Under the above definition, defendants here could
be deemed to have been acting as “media” insofar as they
created content about a local business for broad online publication. Defendants, of course, might not fit the mold of traditional “media,” as the majority seems to understand that
term, such as major newspapers or television broadcasters.
But the very fact that defendants fit the terms of a definition
of “media,” but do not seem to fit the unexpressed terms of
850                                          Lowell v. Wright

the majority’s definition of “media,” highlights the difficulty
and ambiguity in clearly distinguishing between media and
nonmedia, particularly where user-generated internet content is involved.

        Without an explanation of how to distinguish
between media and nonmedia, the remainder of the opinion
relying on that distinction is unpersuasive. Various federal
and state courts have rejected that distinction, and I find
Obsidian Finance’s explanation of why to do so persuasive.
As a result, I conclude that that distinction should not hold
in defamation cases.

          If the Gertz rule were applied here, plaintiff would
have to allege and prove at least negligence on defendants’
part to be able to recover for defamation at all, and he would
have to show actual malice to recover for his defamation
per se claim, which may proceed “without proof of specific
harm.” Brown v. Gatti, 

, 

 (2006);
see Gertz, 

 (“In short, the private defamation
plaintiff who establishes liability under a less demanding
standard than that stated by New York Times[, i.e., actual
malice,] may recover only such damages as are sufficient
to compensate him for actual injury.”). The majority asserts
that applying that actual malice standard “may make little
practical difference under the circumstances of this case,”
because “Plaintiff is correct that he could make the required
showing of actual malice to overcome summary judgment.”
369 Or at 836. I disagree that requiring that showing would
be of “little practical difference” to defendants. A heightened
burden of proof for plaintiff could change whether defendants are liable for their alleged defamation—which is why
defendants raised the actual malice argument. I agree, however, that plaintiff has raised a triable issue of fact as to
whether he may be able to make what would be the required
showing of actual malice in this case. Thus, although I disagree with the majority’s analysis on this point, I concur in
the judgment.

        The second type of constitutional protection for
speech that applies in defamation cases is the requirement
that an allegedly defamatory statement be provably false
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to be actionable. That requirement stems from Supreme
Court decisions that were recently relied on by this court in
Neumann. 

-16 (citing Philadelphia Newspapers,
Inc. v. Hepps, 

, 

, 

(1986); Milkovich v. Lorain Journal Co., 

, 

, 

 (1990)). In Neumann, we applied the
requirement that statements be provably false to statements
involving matters of public concern made by a nonmedia
defendant. Id. at 722 (holding that the defendant’s online
review was “an expression of opinion on matters of public
concern that is protected under the First Amendment”).
Neumann also adopted a test for whether a statement is
provably false that was articulated by the Ninth Circuit in
Unelko Corp. v. Rooney, 912 F2d 1049, 1053 (9th Cir 1990),
cert den, 

 (1991). 

. I agree with
the majority’s ultimate conclusion that Neumann controls
this case in part and that some, but not all, of defendant’s
statements are actionable under the Unelko test. I disagree,
however, with other aspects of the majority’s discussion of
Neumann.

          The majority upholds Neumann begrudgingly, and
seemingly only because plaintiff failed to ask us to overrule it. See 369 Or at 822 (“We conclude that Neumann controls in the absence of plaintiff’s request that we overrule
it, although we have doubts about its approach ….”). As
part of that discussion, the majority explains at length some
effects of the internet on modern communication and the
extent to which the advent and development of the internet has changed, or not changed, defamation law in Oregon.
369 Or at 827-28. The majority also questions whether
Neumann properly considered whether a media/nonmedia
distinction might affect the analysis in that case, and it
casts doubt on Neumann’s conclusion that the online review
in that case was on a matter of public concern. 369 Or at
823-24, 824, 827-28.

         But because the majority upholds Neumann and
applies it to this case, the extended critique of that case’s reasoning does not bear on the result here and is dicta. Whether
online reviews should be automatically considered matters
of public concern, or whether the internet can “breathe
852                                         Lowell v. Wright

constitutional importance” into a potentially defamatory
statement, are questions that are neither presented by this
case nor relevant to its outcome. 369 Or at 827. I would not
express an opinion on matters so far removed from the situation at hand.

         Nevertheless, in response to the majority’s discussion, I would observe that Neumann is far more defensible
than the majority suggests. In Neumann, this court “readily
conclude[d]” that the statements in that case involved matters of public concern. 

. That ready conclusion was not due to a lack of consideration by this court,
but rather due to the clarity with which the court understood that the character and reputation of a local business
can be of great importance to members of the surrounding community, regardless of whether they are consumers
of that business’s services or products. Indeed, it appears
that it did not even occur to the litigants in that case to
argue otherwise. In Unelko, the Ninth Circuit similarly
held that a statement made on 60 Minutes that the product Rain-X “didn’t work” involved a matter of public concern,
because the statement was “of general interest and was
made available to the general public,” and because “protection of statements about product effectiveness will ‘ensure
that debate on public issues will be uninhibited, robust and
wide-open.’ ” 912 F2d at 1056 (quoting Dun & Bradstreet,

 (internal quotation marks and brackets omitted)). There should be no doubt that the “content, form,
and context” of the statements here indicate that they too
involve matters of public concern. Dun & Bradstreet, 

 (indicating that “ ‘whether speech addresses a
matter of public concern must be determined by the expression’s content, form, and context as revealed by the whole
record’ ” (quoting Connick v. Myers, 

, 

, 

 (1983) (alterations and brackets
omitted))).

         The majority also casts doubt on Neumann’s holding that the First Amendment’s provably-false rule should
apply to nonmedia defendants. See 369 Or at 824 (“In short,
the Neumann court did not note that whether the defendant is media or not could affect the analysis, even to reject
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the idea.”). As the majority recognizes, that question has
not been decided by the Supreme Court, but, instead, has
been expressly reserved. 369 Or at 817; id. (citing Hepps,

 n 4; Milkovich, 

 n 6). But even if
Neumann had not resolved the issue for purposes of Oregon
law, which it did, this court should have come to the same
conclusion in this case and applied the provably-false rule
to defendants without regard to their media or nonmedia
status. In the absence of such a rule, Oregonians who post
online reviews of businesses would have to be prepared to
defend the truth of their statements in court or face liability
for defamation—even where their statements are not susceptible to being proven either truth or false.
         The same arguments that weigh in favor of rejecting the media/nonmedia distinction in the Gertz context,
articulated above, also support Neumann’s rejection of that
distinction. The majority offers no example of another state
that allows its citizens to be sued for defamation on matters
of public concern where the statement at issue does not satisfy Milkovich’s provably-false standard, and several state
courts have taken the opposite approach and agree with
Neumann. See, e.g., Dodson v. Dicker, 

, 

 (1991) (applying Milkovich in a case with a non-media defendant); Kahn v. Bower, 232 Cal App 3d 1599, 1606-07,
284 Cal Rptr 244, 248-49 (1991) (same).
        Because Neumann is settled law, no party challenges its underlying reasoning (whereas they do challenge the media/nonmedia distinction in Harley-Davidson,
Wheeler, and Adams), and its First Amendment conclusions
remain sound, I would not cast doubt on Neumann’s reasoning and its application in this case.
         In sum, the majority adheres to a distinction
between media and nonmedia defendants, for purposes of
defamation claims by private figures, that has not been
embraced by the Supreme Court and that has been rejected
by multiple federal and state courts, numerous scholars, and
the Restatement. Although the majority is correct that the
Court has not yet applied Gertz to nonmedia defendants, the
Court has also consistently rejected the media/nonmedia
distinction, and, in its own words, refused to offer the media
854                                         Lowell v. Wright

“any constitutional privilege beyond that of other speakers.”
Citizens United, 

. I would not continue to hold
that Gertz applies only to media defendants in the absence
of a workable method for distinguishing between media and
nonmedia, and the majority makes no attempt to provide
one.
         As to Neumann, I would not cast doubt on a case
that goes unchallenged by the parties, and I would not
express an opinion on matters unrelated to the facts and
legal arguments presented by this case.
        For the foregoing reasons, I disagree with parts of
the majority’s First Amendment analysis and concur in the
judgment.
        Garrett, J., joins in this concurring opinion.
        FLYNN, J., concurring.
         I agree with the concurrence that Neumann is not
only controlling but correct, and that the critique of that
case’s reasoning in the majority opinion is dicta. And I am
persuaded by the argument in the concurrence that a media/
nonmedia distinction is in tension with the Supreme Court’s
more recent First Amendment decisions. But we are not
writing on a clean slate. Rather, we are being asked to overrule our own controlling precedent on the strength of predictions about how the Supreme Court ultimately will rule on
the question of whether the First Amendment requires proof
of fault in cases like this. In my opinion, it is both premature and potentially unnecessary to declare our precedent
overruled.