Katinka Hosszu v. Casey Barrett
16-16571
| 9th Cir. | Dec 13, 2017Background
- Katinka Hosszu, a world‑class Olympic swimmer, sued columnist Casey Barrett and Sports Publications International (SWM) under Arizona law for defamation per se and false light based on multiple Swimming World Magazine articles suggesting she may have used banned performance‑enhancing drugs (PEDs).
- The complaint alleged Barrett’s pieces implied Hosszu’s accomplishments were the product of secret PED use, harming her reputation.
- The district court dismissed under Fed. R. Civ. P. 12(b)(6), concluding the challenged writings were opinion/commentary on a matter of public concern and not reasonably capable of defamatory meaning (invoking Milkovich and related Ninth Circuit precedent).
- The Ninth Circuit (majority) affirmed, holding Barrett’s articles—read as a whole—were interpretive opinion, hyperbolic, labeled commentary, and not actionable because they did not assert provable objective facts and the subject (doping) is difficult to prove definitively.
- The court also rejected the false light claims: some articles were protected opinion; others were not “of and concerning” Hosszu; and portraying her depression as a basis for doping was not reasonably implied.
- Judge Trott dissented, arguing the articles functioned as factual accusations (an indictment) that plausibly alleged defamatory falsehoods and therefore should have survived a motion to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Barrett's statements were reasonably capable of sustaining a defamatory meaning (i.e., implied assertion of objective fact) | Hosszu: articles implicitly accuse her of using PEDs and thus state provable false facts harming her reputation | Barrett: writings are commentary/opinion, framed as questions, hyperbolic, labeled "commentary," and leave readers to draw conclusions | Held: Statements are constitutionally protected opinion, not actionable; reasonable reader would view them as interpretations, not provable facts |
| Whether the statements were provably true or false (Milkovich rule / First Amendment) | Hosszu: implication of doping is a factual allegation that can be litigated; dismissal denied so she could seek vindication | Barrett: doping allegations are often not objectively verifiable given limits of testing; framed as suspicion/opinion | Held: Court found doping assertions here were not presented as provable facts and are protected opinion under Milkovich/Partington framework |
| Whether false light claims survive (including “of and concerning” requirement) | Hosszu: articles placed her in a false light by implying she doped and by linking depression to cheating motive | Barrett: articles are opinion or not specifically about Hosszu; some pieces not "of and concerning" her | Held: False light claims fail for same First Amendment reasons and because some articles were not "of and concerning" Hosszu; portraying depression as motive not reasonably implied |
Key Cases Cited
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) (opinion vs. provable fact standard for libel)
- Partington v. Bugliosi, 56 F.3d 1147 (9th Cir. 1995) (framework for deciding when statements imply provable facts)
- Underwager v. Channel 9 Australia, 69 F.3d 361 (9th Cir. 1995) (distinguishing protectable opinion from defamatory assertions)
- Knievel v. ESPN, 393 F.3d 1068 (9th Cir. 2005) (standard for reviewing defamation pleadings and question of defamatory meaning)
- Standing Committee on Discipline v. Yagman, 55 F.3d 1430 (9th Cir. 1995) (example of statement implying objectively verifiable facts)
- Pacquiao v. Mayweather, 803 F. Supp. 2d 1208 (D. Nev. 2011) (denial of 12(b)(6) where direct factual accusation of PED use alleged)
- Hansen v. Stoll, 636 P.2d 1236 (Ariz. Ct. App. 1981) (false light requirement that statement be "of and concerning" the plaintiff)
- Godbehere v. Phoenix Newspapers, Inc., 783 P.2d 781 (Ariz. 1989) (limitations on using public statements about private matters to support false light claims)