Schnare v. Ziessow , 104 F. App'x 847 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DAVID W. SCHNARE, 
Plaintiff-Appellant,
v.
 No. 03-1879
BERNARD W. ZIESSOW; HARRIS
PUBLICATIONS, INCORPORATED,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-03-366-A)
Argued: May 6, 2004
Decided: July 13, 2004
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: David Walter Schnare, Fairfax Station, Virginia, for
Appellant. Robert Richardson Vieth, COOLEY GODWARD, L.L.P.,
Reston, Virginia, for Appellee Harris Publications, Incorporated;
Heather Kathleen Bardot, TRICHILO, BANCROFT, MCGAVIN,
HORVATH & JUDKINS, Fairfax, Virginia, for Appellee Ziessow.
ON BRIEF: George E. Marzloff, Stafford, Virginia, for Appellant.
Brian M. Koide, COOLEY GODWARD, L.L.P., Reston, Virginia, for
2 SCHNARE v. ZIESSOW
Appellee Harris Publications, Incorporated; Steven W. Bancroft, John
C. Nicols, TRICHILO, BANCROFT, MCGAVIN, HORVATH &
JUDKINS, Fairfax, Virginia, for Appellee Ziessow.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Labrador Retrievers, in order to compete as show dogs, must meet
specific breed standards such as height and weight requirements.
When changes to these standards were proposed, many Labrador
owners and breeders recognized that their dogs could become ineligi-
ble for competition. A group of those affected by the changes first
opposed their adoption and then sought to prevent their implementa-
tion through litigation that proved unsuccessful. After the litigation
was over, the weekly magazine Dog News published a three-part arti-
cle, "Revising A Standard," which chronicled the changes to the Lab-
rador breed standard and the ensuing controversy. The author, Dr.
Bernard W. Ziessow, was among the proponents of the revised stan-
dard, and throughout the article he criticized those who opposed the
revision, including Dr. David W. Schnare. After the article was pub-
lished, Schnare sued Ziessow and Harris Publications, Inc., the pub-
lisher of Dog News, alleging defamation and intentional infliction of
emotional distress. The district court determined that the challenged
statements in the article were not actionable as defamation and
granted the defendants’ motion to dismiss. Finding no error, we
affirm.
I.
Schnare and Ziessow are both long-time owners and breeders of
Labrador Retrievers, and both have served in official capacities in the
Labrador Retriever Club (LRC). Schnare and Ziessow positioned
SCHNARE v. ZIESSOW 3
themselves on opposite sides of the Labrador breed standard contro-
versy when Ziessow was appointed in 1987 to chair a committee
formed to propose changes to the standard. Under the LRC’s constitu-
tion a revision to the breed standard must be approved by LRC’s
members, and it becomes effective when the American Kennel Club
(AKC) approves it. Schnare organized a September 1989 meeting of
regional and local Labrador clubs in an effort to generate opposition
to the revised standard. At the meeting club representatives signed a
joint letter to the AKC indicating the clubs’ opposition to the change.
Shortly thereafter, in November 1989, the AKC returned the proposed
standard to the LRC for reconsideration.
In May 1992 Ziessow was reappointed by the LRC to chair the
committee to revise the Laborador standard. The LRC submitted its
second proposed standard to the AKC in November 1993. The AKC
approved the revised standard in February 1994, and it became effec-
tive the following month. The revised standard requires (among other
things) Labradors to be within a certain height range in order to com-
pete in AKC dog shows; thus, some dogs that previously competed
at shows became ineligible for competition. In May 1994 Schnare and
a group of owners, breeders, and sellers of Labrador Retrievers filed
an action to enjoin the AKC from implementing and enforcing the
new standard. Jessup v. American Kennel Club, Inc., 862 F. Supp.
1122 (S.D.N.Y. 1994). After that action was unsuccessful, several
Labrador breeders in 1997 filed a class action antitrust suit against the
AKC and the LRC for damages and injunctive relief. Jessup v. Ameri-
can Kennel Club, Inc., 1997 WL 525405 (S.D.N.Y. 1997). The sec-
ond action was also unsuccessful: the district court awarded summary
judgment to the defendants in 1999, Jessup v. American Kennel Club,
Inc., 61 F. Supp. 2d 5 (S.D.N.Y. 1999); the Second Circuit affirmed
without opinion in 2000, Jessup, 210 F.3d 111 (2d Cir. 2000); and the
Supreme Court denied certiorari in 2001, Jessup, 531 U.S. 1072(2001).
Ziessow published his three-part Dog News article, "Revising A
Standard," in January and February 2002. The article recounts the
controversy over the revised breed standard and the years of litigation
that followed. Ziessow proceeds to state that "[t]he intent of this com-
munication is to answer the half-truths, innuendoes and outright lies
perpetrated by certain parties to the suit, and their fellow travelers, to
4 SCHNARE v. ZIESSOW
bemuch [sic] the reputation and good name of some officers and
directors, and to tell the true story." J.A. 60. The ongoing tension
between Schnare and Ziessow figures prominently in the three-part
article. For instance, Ziessow writes that when he learned that
Schnare had called a meeting of the regional and local Labrador
clubs, Ziessow asked that he or John McAssey, the LRC president, be
allowed to attend. Ziessow writes that although Schnare told him their
presence would not be useful, Schnare later told those at the meeting
that the two men were invited but refused to attend. He also attacks
Schnare’s letter-writing campaign, which criticized the process of
revising the breed standard and ultimately squelched the first pro-
posed standard. Concluding Part I of his article, Ziessow states, "[i]t
is a sad commentary that a member club’s reputation and loyalty of
over fifty years could be questioned on the basis of falsehoods, half-
truths, and fabricated charges instigated by a self-promoting patriarch
and his disciples." J.A. 65.
The second installment (or Part II) of Ziessow’s article primarily
chronicles the subsequent effort to revise the standard, which culmi-
nated in approval by the AKC, but which prompted years of litigation.
Part II also discusses the charge a certain individual filed with the
AKC against the LRC, Ziessow, and others for (among other things)
failure to follow stated procedures for revising the breed standard.
The charge, which sought disciplinary action against its targets, relied
in part on an affidavit from Schnare that was originally submitted in
the antitrust litigation. After criticizing certain accusations in the affi-
davit, Ziessow concludes Part II as follows:
As a matter of interest, I looked up the meaning of "affida-
vit" in Webster’s Dictionary, it is defined as follows. "A
written declaration upon oath; A statement of facts in writing
signed by the party and sworn to or confirmed by declara-
tion before an authorized magistrate. It says nothing about
nor does it include fabrications, distortions, half-truth, innu-
endo or hearsay.
Rather it should be a statement of facts.
J.A. 76 (emphasis in original). As if to highlight the injury caused by
his adversaries, Ziessow then appends a quotation from the Book of
Luke, "Father, forgive them, for they know not what they do." Id.SCHNARE v. ZIESSOW 5
The final installment (Part III) of "Revising A Standard" resumes
its criticism of Schnare’s affidavit, though in increasingly excited lan-
guage. Indeed, Part III begins with one of the Ten Commandments,
"Thou shalt not give false testimony against thy neighbor." J.A. 79.
The first two paragraphs of the article then read as follows:
The evidence the plaintiffs presented to the United States
District Court . . . of alleged irregularities in the LRC stan-
dard setting processes consisted of an affidavit from David
Schnare and a portion of the deposition testimony of Ber-
nard Ziessow. As stated previously, an affidavit is defined
as "A written declaration upon oath, a statement of facts in
writing signed by the party and sworn to or confirmed by
declaration before an approved magistrate". Dr. Schnare’s
affidavit, which was presented to the court contains some
sixty pages of fact and fiction, innuendo, half-truths, exag-
gerations and fabrications. He also uses his role as a witness
as an opportunity to besmirch the reputation of individuals
for who [sic] he has a personal vendetta.
"Do not go about spreading slander about your people."
Leviticus 19:16.
J.A. 79.
Ziessow states that he will "not attempt to repute [sic] or rectify all
misstatements of fact, untruths or distortions contained in the affida-
vit," but rather will "respond to those believe [sic] most harmful to the
LRC." J.A. 80. He then proceeds to quote various statements from the
affidavit and challenge them factually, while punctuating his discus-
sion with colorful maxims. Wrapping up one critique of Schnare’s
assertions, Ziessow insists: "Many of Dr. Schnare’s statements, in
addition to being untrue are outright ridiculous and purely of his own
making—he would have been well to heed the old Hebrew proverb:
‘Many things sound better with your mouth shut’." J.A. 83. Eventu-
ally, he brings Part III to a close with the following:
It is unfortunate that a few have to drag the breed through
the mud as they wallow in the slime of their own corruption.
"Those who would corrupt the mind are just as evil as those
6 SCHNARE v. ZIESSOW
who steal." I believe I have provided enough evidence to
respond to Dr. Schnare’s so called Affidavit. Where he
obtained his information, only he knows, what he is attempt-
ing to accomplish is obvious—"Either dazzle the reader
with brilliance or befuddle them with bullcrap." In either
case, the affidavit contains more than enough lies, fabrica-
tions and inaccuracies to cast a serious doubt on the value
of the entire document.
J.A. 85.
Schnare sued Ziessow and Harris Publications for defamation and
intentional infliction of emotional distress in Virginia state court, and
the defendants removed the case, based on diversity jurisdiction, to
the United States District Court for the Eastern District of Virginia.
Harris Publications moved to dismiss under Rule 12(b)(6), claiming
the statements were not actionable as defamation under Virginia law.
A hearing followed, at which Ziessow orally joined Harris Publica-
tions’ motion. The district judge granted Harris Publications’ motion
to dismiss at the hearing on May 2, 2003, and granted Ziessow’s
motion on June 11, 2003. Schnare appeals only the dismissal of his
defamation claim.
II.
Schnare contends that Ziessow’s article is libelous because it
accuses him of perjury in the litigation related to revising the breed
standard. Schnare relies particularly on statements made in Part III of
the article, such as the characterization of his affidavit as containing
"some 60 pages of fact and fiction, innuendo, half-truths, exaggera-
tions and fabrications." J.A. 79. Pointing to this and seventeen addi-
tional statements that he claims assert or imply perjury, Schnare
maintains that Ziessow’s article is defamatory per se. The district
court disagreed, holding that the statements were expressions of opin-
ion and inactionable as a matter of law.
In Virginia the elements of common law defamation are the "(1)
publication of (2) an actionable statement with (3) the requisite
intent." Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1092 (4th Cir.
1993) (applying Virginia law). A statement is actionable if it contains
SCHNARE v. ZIESSOW 7
a false assertion of fact that "tend[s] so to harm the reputation of
another as to lower him in the estimation of the community or to deter
third persons from associating or dealing with him." Id. There are, of
course, "constitutional limits on the type of speech" that is subject to
a defamation action. Milkovich v. Lorain Journal Co., 497 U.S. 1, 16
(1990)(emphasis in original). If a statement "cannot reasonably be
interpreted as stating actual facts about an individual," it cannot be the
subject of a defamation suit. Id. at 20 (internal quotation marks and
citations omitted). See also Yeagle v. Collegiate Times, 497 S.E.2d
136 (Va. 1998); WJLA-TV v. Levin, 564 S.E.2d 383 (Va. 2002).
Typically, the types of speech that will enjoy the Milkovich protec-
tion are pure expressions of opinion and rhetorical hyperbole. Though
the Milkovich Court explicitly declined to provide an "exemption
[from liability] for anything that might be labeled ‘opinion,’" it
emphasized that a statement must state or imply a defamatory fact to
be actionable. 497 U.S. at 19 (emphasis added). This means that
although someone cannot preface an otherwise defamatory statement
with "in my opinion" and claim immunity from liability, a pure
expression of opinion is protected because it fails to assert an actual
fact. Rhetorical hyperbole, in contrast, might appear to make an asser-
tion, but a reasonable reader or listener would not construe that asser-
tion seriously. For instance, in Greenbelt Coop. Publ’g Assoc., Inc. v.
Bressler, 398 U.S. 6 (1970), a local newspaper published certain arti-
cles characterizing a real estate developer’s negotiation position as
"blackmail." The Supreme Court stated that a reader of the article
would recognize that the word "was no more than rhetorical hyper-
bole, a vigorous epithet used by those who considered [the develop-
er’s] position extremely unreasonable." Id. at 14. Protection for this
type of speech, the Court explained, "provides assurance that public
debate will not suffer for lack of imaginative expression . . . which
has traditionally added much to the discourse of our Nation."
Milkovich, 497 U.S. at 20 (internal quotation marks omitted).
In determining whether a statement can be reasonably interpreted
as stating actual facts about an individual, we look to the circum-
stances in which the statement is made. Biospherics, Inc. v. Forbes,
Inc., 151 F.3d 180, 184 (4th Cir. 1998). Ziessow readily uses labels
such as "lie," "fabrication," and "falsehood," but the defamatory capa-
bility of these terms cannot be determined on a per se basis. See Dil-
8 SCHNARE v. ZIESSOW
worth v. Dudley, 75 F.3d 307, 310 (7th Cir. 1996). Specifically, we
consider whether the language used is "‘loose, figurative, or hyper-
bolic language,’" as well as the "‘general tenor of the article.’" Id. at
184 (quoting Milkovich, 497 U.S. at 21).
Whether the statements in Ziessow’s article are actionable thus
depends on whether a reasonable reader would construe them as seri-
ously asserting that Schnare committed the crime of perjury.
Milkovich, 497 U.S. at 21. Reading the statements from Schnare’s
complaint in context, we conclude that each one is properly under-
stood as either opinion or hyperbole. Many of the statements are only
vaguely insinuating and not even arguably defamatory (for example,
"One would believe a person of Dr. Schnare’s education and back-
ground would be certain of the facts prior to signing an affidavit."
J.A. 82.). Other statements, which on their face are accusations of
lying, are actually vigorous and angry expressions of disagreement.
In one instance, Ziessow characterizes a portion of the Schnare affida-
vit as a "vicious assassination of character and an outright lie." J.A.
85. Taken in context, the statement is a response to Schnare’s accusa-
tion that Ziessow wanted to revise the breed standard in order to drive
competitors from the market for his own financial gain. Ziessow simi-
larly characterizes Schnare’s comment that he was able to identify
LRC members by their ballots, which implied that Ziessow might
have tampered with the voting process. In this way, Ziessow appears
to be dramatizing a belief that Schnare is morally culpable for making
reckless accusations against him, which is underscored by the maxims
and Biblical quotations inserted throughout the article. A reasonable
reader would therefore recognize this "accusation" of lying as just an
"expression of outrage," much like an accusation by a talk show host
that the Eleventh Circuit held was rhetorical hyperbole. Horsley v.
Rivera, 292 F.3d 695, 701-02 (11th Cir. 2002). Though the talk show
host stated that the plaintiff (a guest on the program) was an "accom-
plice to homicide," the Eleventh Circuit held that the accusation
merely reflected the host’s belief that the plaintiff was morally culpa-
ble in a particular homicide; it was not, therefore, a literal assertion
that the plaintiff committed a felony. Id. See also Flowers v. Carville,
310 F.3d 1118, 1127 (9th Cir. 2002).
Furthermore, in those instances when Ziessow accuses Schnare of
specific misstatement, he discloses the factual basis for his disagree-
SCHNARE v. ZIESSOW 9
ment, allowing the reader to draw her own conclusion. See
Biospherics, 151 F.3d at 185. For instance, Ziessow quotes Schnare’s
affidavit as stating, "Under the 1994 AKC/LRC standard a yellow dog
bred from AKC registered Labrador retrievers that did not have a
black nose or eye rims could not be registered in AKC registry, could
not compete at AKC licensed judging events as an ‘AKC Champion
Stock Labrador Retriever’." J.A. 81. Ziessow then retorts that these
statements are "incorrect, either through ignorance or as an attempt to
deceive," adding that "[i]n either case they are lies under oath." Id.Ziessow then goes on to explain the AKC’s disqualification rules in
an attempt to show that Schnare is mistaken. Of course, a statement
uttered in ignorance is not a lie under oath. This type of loose lan-
guage further suggests that Ziessow’s article is more of an opinion-
ated and hyperbolic screed than a defamatory piece of journalism.
Our view of these statements is reinforced by a First Circuit case
involving a similar mix of opinion and hyperbole. Phantom Touring,
Inc. v. Affiliated Publications, 953 F.2d 724, 730-31 (1st Cir. 1992).
The defamation alleged in Phantom Touring appeared in an article
describing a musical comedy version of "The Phantom of the Opera"
that was confused with the hugely successful Broadway show. The
article stated that the producers of the musical comedy benefitted
from the confusion, questioned whether advertisers made the distinc-
tion clear to the ticket-buying public, and quoted a drama critic as
describing the show as "a rip-off, a fraud, [and] a scandal." Id. at 726.
The First Circuit affirmed the dismissal of the defamation action
because the author, who was held merely to be expressing his opin-
ion, "not only discussed all the facts underlying his views but also
gave information from which readers might draw contrary conclu-
sions." See Phantom Touring, 953 F.2d at 729. The attacks on the
play, the court explained, constituted "a self-contained give-and-take,
a kind of verbal debate between [the author] and those persons
responsible for . . . marketing appellant’s ‘Phantom.’" Id. at 730. It
therefore held that "the assertion of deceit reasonably could be under-
stood only as [the author’s] personal conclusion about the information
presented, not as a statement of fact." Id.Finally, the strongest language, and the only remaining statement
deserving attention, is the characterization of Schnare’s entire affida-
vit as "some 60 pages of fact and fiction, innuendo, half-truths, exag-
10 SCHNARE v. ZIESSOW
gerations and fabrications." J.A. 79. Even here, the context of
Ziessow’s article, with its snide tone, stern quotations, and responsive
posture, alert the reader to the hyperbolic nature of the statements.
The harsh characterization merely serves as an introduction to the
numerous disagreements with Schnare’s affidavit detailed in the
pages that follow. Given that Schnare contended that the voting pro-
cess, which Ziessow oversaw, was open to mischief, a reasonable
reader would interpret Ziessow’s response as no more than a "lusty
and imaginative expression of the contempt felt" toward his adversary
in the controversy about revising the breed standard. Nat’l Assoc. of
Letter Carriers v. Austin, 418 U.S. 264, 286 (1974). We therefore
hold that the challenged statements "belong[ ] to the language of con-
troversy rather than to the language of defamation." Dilworth, 75 F.3d
at 310. In short, the statements might be offensive, but they are not
defamatory. The judgment of the district court is therefore affirmed.
AFFIRMED