Defamation Based Solely on Tone of Voice
by CATHERINE A. VAN HORN AND STEVEN P. MANDELL
Catherine A. VanHorn and Steven P. Mandell are partners in the law firm of Davidson Mandell & Menkes in Chicago.
Should courts recognize an action for defamation by implication based solely on a broadcast reporter's tone of voice where the facts stated are admittedly true? Can tone of voice alone render an otherwise truthful statement defamatory?
Courts have long recognized a claim for defamation by implication in the print context, including, at least in theory, claims based solely on the tone of a publication.1 Broadcast technology, and especially television broadcasting, has raised new and different issues with respect to defamation by implication that result from the very nature of the technology. "Television touches more senses than does the print media, and the standards for finding defamation cannot be woodenly applied without taking into account the kind of medium by which the message was delivered."
Thus, for example, courts analyzing claims for defamation by implication based on television broadcasts must consider the accompanying graphics as well as the text.
[T]elevision news reporting is a different, more powerful genre than newsprint. With television, we must also take into account the impact of the visual effects as well as the text because the television medium offers the publisher the opportunity, through visual presentation, to emphasize certain segments in ways that cannot be ascertained from a mere reading of [a] transcript.3
Moreover, "only by considering the text in conjunction with the accompanying visual images can one understand the possible emotive impact of the story, as it is the juxtaposition of the audio and visual elements that conveys the meaning intended."4
Television also allows for the use of vocal inflections to add power to the message.5 As a result, courts are now facing, as a matter of first impression in most jurisdictions, the question of whether a defamation action can ever be based solely on a reporter's voice inflections.
Historical Background
Although the precise question of the defamatory impact of vocal intonation has not, by definition, arisen in the context of print media, courts and commentators have long posited that, in theory at least, a defamation action could be based solely on the tone of a written publication. For example, Prosser has argued that "the form of the language used is not controlling, and there may be defamation by means of a question, an indirect insinuation, an expression of belief or opinion, or sarcasm or irony."6 Similarly, as early as 1910, the Supreme Court of Missouri observed, in explaining the development of the innocent construction rule, that "libelous sense may be fairly deduced from the trend of the publication, indirectly by sarcasm, invective, and abuse, or by direct statement."7 That case, however, rejected such a claim and there are no known cases that have sustained a claim for defamation by implication based solely on the tone of a publication.
In a small number of cases, courts addressing claims for slander have also considered the impact of tone and vocal inflection, but those cases, too, have rejected claims based solely on tone. For example, a TennesSee appellate court recently rejected a claim brought by a former police officer against his superior based on statements the superior had admittedly made during a roll call.8 In Hunt v. Tangel, the plaintiff had resigned from the police force rather than take a polygraph test after being accused of theft.9 In explaining the plaintiff's absence during roll call, the defendant had truthfully stated that the plaintiff had resigned because of allegations of theft, and had added that he did not believe that the plaintiff was guilty.10 The plaintiff, however, asserted that the defendant had insinuated, by using a sarcastic tone, that the plaintiff was in fact guilty.11
In considering whether a statement that was admittedly true could be rendered defamatory solely by the speaker's tone of voice, the court considered Prosser's analysis, concluding that Prosser was referring to situations in which "sarcasm, insinuation, and the like" were used to twist the truth either by omitting relevant facts and circumstances, or by alluding to "facts" and circumstances that did not exist.12 The court refused to find that the plaintiff's claim met that test, recognizing that, under such a holding, "any plaintiff could state a cause of action by alleging that a statement was made in a sarcastic tone of voice, or that the speaker rolled his eyes while making the statement."13
Another ground for the sound rejection of nonbroadcast slander claims based solely on tone of voice is provided in Thomas v. E.J. Korvette, Inc.14 In Thomas, the Third Circuit rejected a slander claim based solely on the necessarily equivocal recollections of the plaintiff:
Before words are deemed to be defamatory per se, the proof of what was uttered should also be unequivocal. Proof of the spoken word involves not only an accurate recollection of what was said but accuracy in the auditor's perception (the physical sensation) of the word sounds. In addition, some words are frequently susceptible to variable meanings, depending upon the inflection, tone, and circumstance in which they were used. The danger of a misunderstanding is too great to permit equivocal proof in a case such as this.15
In other words, slander claims based solely on the testimony of witnesses as to their subjective perception of the speaker's tone of voice are simply too unreliable to support a defamation claim.
Broadcasting, however, renders that concern moot. Television stations routinely tape their broadcasts. Therefore, when a defamation claim is based on a broadcast, the trier of fact is able to hear first hand the allegedly defamatory statement. Indeed, at least one appellate court has held that "only highly unusual circumstances would explain a failure to view the television broadcast before ruling on a dispositive motion" because the judge "could miss subtle, or not so subtle, graphics, visuals, or vocal expressions in the absence of actually viewing a television broadcast."16 Thus, triers of fact now can be confident that they are hearing not only the precise words used in the allegedly defamatory statement, but also such context clues as the emphasis placed on the statement, the speaker's vocal inflections, and the speaker's tone of voice. As a result, the question of whether tone of voice alone is sufficient to support a claim for defamation by implication must now be squarely faced.
Cases Considering Tone of Voice
Each of the few courts that have to date faced claims based solely on tone of voice or vocal inflection has done so based on facts similar to those at issue in Hunt.17 In each case, the plaintiff has been accused of wrongdoing and has been offered an opportunity to tell his side of the story. In each case, the reporter has set forth the plaintiff's position fully and accurately. And, in each case, the plaintiff has asserted that the reporter used a tone of voice that implied that the plaintiff was lying.18 Ultimately, each of these cases rejected the claim, but with little or no analysis.19
A recent federal court decision corrected that deficiency in the context of an Illinois state law claim for defamation per quod. In Hanash v. WFLD Fox Television,20 a television station included in its evening news program a special report on liquor sales to minors. The report first depicted a sixteen-year-old girl placing telephone orders with a number of liquor stores for alcoholic beverages to be delivered to a certain address, then included a series of film clips of drivers for various liquor stores delivering alcoholic beverages to the minor without asking for identification or otherwise questioning her age.21 In the final segment of the report, the plaintiff is shown placing a keg of beer inside the vestibule at the minor's address, accepting cash from the minor, and walking back to his car, at which point the reporter and his cameraman confront the plaintiff.22 The reporter then summarizes the plaintiff's explanation of his actions: "[W]e interrupt the delivery after the keg's been dropped off and paid for, but the delivery man insist[s] that he carded the girl, he was just leaving to move his double-parked car so he could come back and wait for an adult to show up."23
No question was raised as to whether the reporter accurately reported the plaintiff's explanation-indeed, the plaintiff could be heard giving his explanation below the reporter's voice-over. However, the plaintiff claimed that the reporter used an "incredulous" and "skeptical" tone of voice to report the plaintiff's explanation, and thereby gave a false impression of what had actually occurred.24 The plaintiff's defamation action against the television station was based solely on the reporter's "incredulous" and "skeptical" tone of voice.25
The U.S. District Court for the Northern District of Illinois initially denied the television station's motion to dismiss on the ground that it was unclear if Illinois law would support a defamation action based solely on "an allegation of inflection, intonation or manner," and invited the parties to conduct and present additional research on the question of whether Illinois or any other state recognized a claim for defamation based solely on intonation.26 On reconsideration, the court granted the motion to dismiss, holding that a defamation action cannot be based on voice inflection alone.27 In so doing, the court noted that at least one Illinois court had expressed "the same concerns as the court in Hunt," i.e., that, if a claim based on tone alone were cognizable, "plaintiffs would only have to allege an incredulous or sarcastic tone of voice by the defendant to reach the jury."28 Instead, the court concluded that it must evaluate whether the broadcaster "has done something beyond the mere reporting of true facts . . . the tortious element is provided by the affirmative conduct of the author or broadcaster."29 By requiring the plaintiff "to plead one more step, i.e., any affirmative action that would accompany the statements (such as graphics on the television screen)," the court fashioned a test designed to "protect from frivolous claims reporters who are communicating factually accurate news."30
Although the court in Hanash analyzed the issue in the context of a claim for libel per quod, its holding is consistent with standards long used in the print context to analyze claims for defamation by implication based on factors other than tone.
Defamation by Implication
To sustain a claim for defamation by implication when the stated facts are true, the plaintiff must allege either that the omission of material facts rendered the statement defamatory,31 or that the defendant "juxtapose[d] a series of facts so as to imply a defamatory connection between them" where no such connection existed.32 Thus, the plaintiff must prove that the defendant took some affirmative action to render statements that were otherwise true, defamatory. This is so because a plaintiff's subjective interpretation of an allegedly defamatory statement "cannot enlarge or restrict the natural meaning of words, introduce new matter, or make certain that which is uncertain."33 Therefore, courts have, for example, rejected a claim based solely on the layout of a series of articles, because the layout cannot alter the meaning of the text.34
Similarly, as the few courts that have addressed the question have concluded, tone of voice alone cannot change the meaning of a true statement. In reaching that conclusion, these courts appear to have implicitly adopted the affirmative action requirement expressly adopted by the court in Hanash.
In White, which included claims based on both written and broadcast statements concerning certain drug tests taken by the policeman plaintiff, the D.C. Circuit concluded, after analyzing the law governing defamation by implication in the print context, that a statement which conveys true facts could be rendered defamatory if "the particular manner or language" used supplies "additional, affirmative evidence suggesting that the defendant intends or endorses" a defamatory inference.35 However, the court held that neither the language used there nor the television reporter's allegedly "dramatic" intonation, "standing alone or in combination with other factors," suggested that the reporter intended or endorsed an inference that the plaintiff used drugs.36 Thus, the holding in White implicitly requires some affirmative action by the reporter other than an allegedly improper tone of voice.
The court in Foretich, which did not discuss defamation by implication, also implicitly required some affirmative action other than tone of voice to render a true statement defamatory. In Foretich, the plaintiff was accused, in connection with a custody dispute, of sexually abusing his daughters.37 The television reporter covering the story accurately stated that the plaintiff "vehemently denies all charges and asserts that he has been cleared in both court cases."38 The plaintiff asserted that the reporter used a "harsh tone" that rendered the statement defamatory.39 The plaintiff also asserted that the reporter had omitted facts by failing to state that the allegations had been "extensively litigated and investigated" and that "the mothers had not prevailed."40
The court first addressed the plaintiff's allegation that the reporter had omitted certain information. However, rather than applying a defamation by implication analysis, the court, relying on White and other cases, held that the alleged omission was not defamatory because "the press is under no actionable duty to tell both sides of a story."41 The court then noted that the reporter did report the plaintiff's denial of wrongdoing and held that, even if the reporter had used "the harshest possible tone" to report that denial, the statement could not be defamatory because it was true.42 Thus, although the court did not explicitly analyze the tone of voice issue in terms of the law governing defamation by implication, it did implicitly find that the defendant took no affirmative action which would render the otherwise true statement defamatory.
Therefore, where the underlying facts are true, no material facts are omitted, and the reporter does not either juxtapose the facts in such a way as to create an unwarranted defamatory implication or imply the existence of "facts" which do not in fact exist- i.e., where the reporter has taken no affirm-ative action to render his statements defamatory-courts should reject any attempt by plaintiffs to assert a claim for defamation based solely on the reporter's tone of voice.
Protected Opinion
An alternative, and equally viable, view of the impact of tone of voice is that, even if it could be deemed defamatory, it constitutes a protected expression of opinion and therefore is not actionable.
Courts and commentators have long recognized that defamatory implications may qualify as protected opinion.43 As with claims for defamation by implication, defamation claims based on statements of opinion are not actionable where all of the facts underlying the opinion are disclosed and are true.44 These factors should apply with equal force where the opinion is stated solely through tone of voice.45
Although not based on the reporter's tone, an action based on a televised consumer report about appliance repair companies provides a framework for the courts' analyses of whether commentary contained in televised news reports, including "commentary" consisting solely of tone of voice, is protected opinion. In Action Repair, Inc. v. American Broadcasting Co.,46 the reporter disclosed the results of his investigation and all facts upon which his conclusions were based, and then stated that consumers should heed the caution "buyer beware" when considering dealing with the plaintiff. The Seventh Circuit held that the statement was an "honest opinion" that was not actionable apart from the underlying facts.47 "To rule otherwise would be to rule reporters are not allowed to comment even in the most elementary manner . . . Reporters must be given some breathing space and allowed to reach personal conclusions."48
A reporter's tone of voice is exactly the type of "elementary" comment which the Seventh Circuit sought to protect in Action Repair. "Facts do not cease to be facts because they are mixed with the fair and expectant comment of the storyteller, who adds to the recital a little touch by his piquant pen" or his tone of voice.49
Moreover, an analysis of tone of voice under Milkovich v. Lorain Journal, Co.,50 also compels the conclusion that tone of voice, if actionable at all, may be viewed as protected opinion.51 Under Milkovich, courts analyze the language used and the context and "general tenor" of the statement to determine whether an opinion can reasonably be interpreted to state or imply untrue facts.52 With respect to tone of voice, these factors support a conclusion that the reporter's tone conveys a protected opinion.
First, in each of the cases in which the question of the defamatory impact of vocal intonation has arisen, the plaintiff himself has described the tone as conveying the reporter's disbelief, sarcasm, or incredulity, i.e., the reporter's opinion. In that respect, an analysis of the tone of an oral statement is analogous to the analysis of the type of language used in a written statement under Milkovich-whether the language used was the type of "loose, figurative, or hyperbolic language which would negate the impression" that the writer was stating a verifiable fact.53 Second, as in Hanash, tone of voice is most likely to be an issue with respect to investigative reports, which by their "general tenor" are expected to include the reporter's opinions and conclusions.54 Finally, the context in which the tone of voice is used will typically reveal that the tone reflects the reporter's opinion:
Today's "tabloid" style investigative television reportage, conducted by networks desperate for viewers in an increasingly competitive television market . . . constitutes-although it is often shrill, one-sided, and offensive, and sometimes defamatory-an important part of that market. It is entitled to all the safeguards with which the Supreme Court has surrounded liability for defamation. And it is entitled to them regardless of the name of the tort.55
Thus, tone of voice can be deemed to constitute an expression of opinion that is not actionable so long as the underlying facts are fully and accurately disclosed.
Conclusion
Whether analyzed under the standards for defamation by implication or the standards for protected opinion, a defamation claim based solely on a reporter's vocal inflections or tone of voice should not be sustained, because, as the court in Hanash held, tone of voice does not constitute the type of affirmative conduct which is necessary to support a defamation claim. In the absence of undisclosed or misrepresented facts, "First Amendment considerations dictate" that a statement "composed of true or substantially true statements is not defamatory regardless of the tone" because "[t]he goal of nurturing a free and active press" mandates denial of recovery where the allegation of defamation "depends fundamentally on an interpretation of various aspects of the broadcast, not on anything directly said in it."56 To allow Prosser the last word: "No artificial and unreasonable construction placed upon innocent words by the evil-minded can add a defamatory meaning not fairly to be found in light of the circumstances."57
Therefore, no construction of a broadcast based solely on the reporter's tone of voice can add a defamatory meaning to an otherwise true statement. As long as the facts stated are true, no material facts are omitted, and the reporter does not imply the existence of "facts" or circumstances which do not, in fact, exist, courts should reject claims for defamation by implication based solely on a reporter's tone of voice or vocal inflections.
Endotes
1. See footnotes 6 and 7.
2. White v. Fraternal Order of Police, 909 F.2d 512, 526 (D.C. Cir. 1990).
3. Id. (citations omitted). See also Brown & Williamson Tobacco Corp. v. Jacobson, 827 F.2d 1119, 1142 (7th Cir. 1987) (television allows for the use of graphics to emphasize the material).
4. Lasky v. American Broadcasting Cos., 631 F. Supp. 962, 1015 (S.D.N.Y. 1986).
5. Brown & Williamson Tobacco Corp., 827 F.2d at 1142.
6. WILLIAM A. PROSSER, THE LAW OF TORTS § 111 at 746 (4th ed. 1971); See also W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 111 (5th ed. 1984).
7. Diener v. Star-Chronicle Pub. Co., 132 S.W. 1143, 1148 (Mo. 1910) (upholding demurrer to complaint).
8. Hunt v. Tangel, 1997 Tenn. App. LEXIS 914 (Tenn. App. 1997).
9. Id. at *2.
10. Id.
11. Id. at *3.
12. Id. at *5-*6.
13. Id. at *8.
14. 476 F.2d 471 (3d Cir. 1973).
15. Id. at 485 n.14 (Rosenn, J., concurring). See also Keohane v. Stewart, 882 P.2d 1293, 1308-09 (Colo. 1994) (Rovira, J., concurring in part) (rejecting slander claim based on statement by city councilman published in newspaper because "reading [the] remarks does not reveal the inflection with which they were spoken [and] the reasonable understanding of the remarks turns in part on that inflection").
16. Foretich v. CBS, Inc., 619 A.2d 48, 58 (D.C. 1993).
17. Hunt v. Tangel, 1997 Tenn. App. LEXIS 914 (Tenn. App. 1997).
18. White, 505 F.2d at 526 (reporter allegedly used "dramatic intonation"); Foretich, 619 A.2d at 63 (reporter allegedly used "harsh" tone).
19. White, 909 F.2d at 526 (reporter's "dramatic intonation" was not "sufficiently distinctive to convey a clear implication to the viewers"); Foretich, 619 A.2d at 63 (even assuming "the harshest possible tone" on the part of the reporter, "the statement remains true, and, therefore, it cannot be defamatory").
20. 1998 U.S. Dist. LEXIS 17738 (N.D. Ill. 1998).
21. Hanash v. WFLD Fox Television, 1998 U.S. Dist. LEXIS 14471, at *2 (N.D. Ill. 1998).
22. Id.
23. Id. at *3.
24. Id. at *3-*4.
25. Id.
26. Id. at *3-*4.
27. Id. at *8.
28. Id. at *7 (citing Harris Trust & Savings Bank v. Phillips, 506 N.E.2d 1370 (Ill. App. 1987)).
29. Id. at *5-*6 (quoting White v. Fraternal Order of Police, 909 F.2d 512, 520 (D.C. Cir. 1990)).
30. Id. at *7.
31. See, e.g., Memphis Publishing Co. v. Nichols, 569 S.W.2d 412, 420 (Tenn. 1978) (article stating that Mrs. Nichols had been shot "after the suspect arrived at the Nichols home and found her husband there with Mrs. Nichols" could be defamatory because it failed to mention that several others, including Mr. Nichols, were there at the time, thereby implying that Mrs. Nichols was having an adulterous affair with the suspect's husband).
32. PROSSER, supra note 7, § 116 (5th ed. Supp. 1988).
33. Hunt, 1997 Tenn. App. LEXIS 914, at *7 (citing 53 C.J.S. LIBEL AND SLANDER
§ 162(b), p. 250).
34. Strada v. Connecticut Newspapers, Inc., 477 A.2d 1005, 1012 (Conn. 1984) ("The media would be unduly burdened if, in addition to reporting facts about public officers and public affairs, it had to be vigilant for any possible defamatory implication arising from the report of those true facts.").
35. 909 F.2d at 520.
36. Id. at 526.
37. 619 A.2d at 52.
38. Id. at 63.
39. Id.
40. Id.
41. Id.
42. Id.
43. See, e.g., PROSSER, supra note 6; Cianci v. New Times Publ'g Co., 639 F.2d 54 (2d Cir. 1980) (evaluating whether "fair implications" which were held to be defamatory would be protected as opinion); Okun v. Superior Court of Los Angeles County, 629 P.2d 1369 (Cal. 1981) (finding that the "implications deprecatory to plaintiff" were "mere opinion").
44. See, e.g., Stevens v. Tillman, 855 F.2d 394, 400 (7th Cir. 1988) (statement in the form of an opinion which discloses the facts on which it is based is not actionable apart from those facts); O'Donnell v. Field Enterprises, Inc., 491 N.E.2d 1212, 1218 (Ill. App. 1986) (opinion in newspaper editorial was not actionable because "the ideas and opinions in the editorial do not imply undisclosed defamatory facts as their bases").
45. See Keohane, 882 P.2d at 1303 (acknowledging that manner in which statement is phrased may determine whether the speaker was stating fact or expressing an opinion, or whether the subject of the statement is open to dispute).
46. 776 F.2d 143 (7th Cir. 1985).
47. Id. at 147.
48. Id.
49. Strada, 477 A.2d at 1008 (citation omitted).
50. 487 U.S. 1 (1990).
51. Although the Supreme Court in Milkovich refused to recognize an automatic exemption for opinion under the U.S. Constitution, 497 U.S. at 14, a number of states have held that their state constitutions afford greater protection to opinion than that provided under the U.S. Constitution. E.g., Jewell v. NYP Holdings, Inc., 1998 U.S. Dist. LEXIS 15327 (S.D.N.Y. 1998).
52. Milkovich, 497 U.S. at 20.
53. Id. at 21.
54. See, for example, Spelson v. CBS, Inc., 581 F. Supp. 1195, 1203 (N.D. Ill. 1984), aff'd without op., 757 F.2d 1291 (7th Cir. 1985) (a series of investigative reports entitled "Cashing In On Cancer" was "no more than an expression of opinion and commentary gleaned from intensive investigation and stated facts").
55. J.H. Desnick v. American Broadcasting Cos., 44 F.3d 1345, 1355 (7th Cir. 1995) (citation omitted). Interestingly, here the negative perception of the press resulting primarily from the activities of the nontraditional tabloid press strengthens the constitutional protection for expressions of opinion by the press generally because a court would be justified in concluding that "everyone knows" that special or investigative reports contain the reporter's opinion.
56. Strada, 477 A.2d at 1010 (quoting Pierce v. Capital Cities Communications, Inc., 576 F.2d 495, 500 (3d Cir.), cert. denied, 439 U.S. 861 (1978)).
57. PROSSER, THE LAW OF TORTS § 111 at 747 (4th ed. 1971).