By Steven J. J. Weisman
BOSTON – The success of any talk show is based on lively, entertaining and sometimes offensive speech. This is guaranteed by the First Amendment. In the landmark 1964 United States Supreme Court case of New York Times v. Sullivan, Justice William Brennan wrote for the majority that we have a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks…”
The protection provided by the First Amendment is not unlimited however. When the speaker states mistruths with malice, that is he or she knows that what he is saying is a lie or makes statements with a reckless disregard for the truth or falsity of the statements, the speaker can be held responsible for libel or slander.
There is another source of protection, however, for those of us who make our living making sometimes controversial statements and that is “opinion.” Not all opinion is protected, but when it is made about a matter of public concern, the speaker is protected by the First Amendment and that was the recent ruling of the Appellate Division, Fourth Department of New York when it ruled in the case of Gisel v. Clear Channel Communications, Inc..
The plaintiff, John Gisel had been found not guilty of criminally negligent homicide in regard to his fatally shooting a man in a hunting accident. The day after his acquittal, Gisel’s sister, Jacqueline Inzinga, went on Bob Lonsberry’s talk show on WHAM, Rochester to discuss the case. During their on-air discussion, Lonsberry asked Inzinga how it felt to have a brother who was a “cold-blooded murderer” and whether he “put a notch in the stock of his gun as he kills people?” Lonsberry also stated “that the hunting incident could not have been an accident…”
As a result of those statements, Gisel sued for defamation.
However, the court dismissed the case as a matter of law without even an evidentiary trial by concluding that Lonsberry’s comments qualified as pure opinion. The court stated that reasonable listeners would not conclude that Lonsberry was making statements of fact, but rather of his opinion in regard to underlying facts that were well known to the general public through extensive media coverage of the incident and the judicial hearing. The court also emphasized Lonsberry’s talk show as a “forum for public debate on newsworthy topics, and his statements were made during an on-air debate with his listeners regarding plaintiff’s culpability and whether the jury had properly acquitted plaintiff.” The court noted that the “tone of Lonsberry’s statements were obviously intended to be caustic and confrontational rather than factual” and they found nothing wrong with that. The court concluded that his statements were constitutionally protected expressions of pure opinion and therefore protected by law.