Defendant Merthal Settlemier appeals from a judgment for plaintiff, James Hickey, following a jury trial in a “public figure” defamation action. We conclude that plaintiff failed to prove that defendant’s statements were false. Accordingly, we reverse.
Plaintiff sold animals, under a license from the United States Agriculture Department, to hospitals and laboratories for use in medical research. He acquired the business in 1988 from his father, James Hickey, Sr., who owned and operated it until the USDA suspended his license. The business was the subject of USDA investigation, 1 nuisance actions, zoning variance opposition, and protest by animal welfare activists who charged that the kennel mistreated animals and bought and sold stolen pets. The controversy moved from local media to national television in 1990 when the ABC television news program “20/20” broadcast a segment entitled “Pet Bandits.” The program pertained, in part, to plaintiffs business and included an interview with defendant, plaintiffs neighbor.
In that interview, conducted by reporter Stone Phillips, defendant made the statements that are the subject of this defamation action:
“[Reporter]: * * * Meet Joseph Hickey [plaintiff]. His animal supply operation in Lebanon, Oregon, started by his father, is believed to be the biggest on the West Coast. Hickey is what’s known as a ‘Class B’ or ‘random source’ dealer. He doesn’t raise animals for research, he buys them from pounds, animal shelters and private owners. He’ll pay $20 for cats, $50 for dogs, then sell them to research facilities for five to ten times that much.
*106 “* * *[M]ore than 300 people in central Oregon have complained that their pets were stolen and delivered to the Hickeys’ operation. Many want it closed down, including Joseph Hickey’s own godmother, Merthal Settlemier, who lives next door.
“ [Defendant]: And it was very disturbing to think that things were going on over there that I saw that would happen in this day and age to animals. Even though they’re being used for research, it still is, to me, very inhuman.
“[Reporter]: How would you describe the conditions over there for the animals?
“[Defendant]: Well, the time I was over there, was three or four animals in a cage where there should be two. There was feces on the floor. Very warm day, no shade, no water. The food bowls were empty and the dogs were fighting each other.
“ [Reporter]: Have you heard gunshots?
“[Defendant]: Yes, I have. Sometimes, it’s once a week. Sometimes, it’s maybe two times a week. Just this month, there was three gunshots early in the morning about nine o’clock. And we saw pools of blood where dogs could have died and .22 shells.” (Emphasis supplied.)
Plaintiff filed suit, 2 alleging that defendant’s statements were false and defamatory. After the trial court’s entry of summary judgment for defendant was reversed on appeal, 3 the case went to trial in July 1994. At the close of plaintiffs evidence, defendant moved for a directed verdict and renewed that motion at the close of all evidence. The court denied those motions but, immediately preceding closing *107 arguments, ruled that plaintiff was a public figure and that plaintiff was, therefore, required to prove “actual malice” by clear and convincing evidence. Defendant asked that the jury be instructed that plaintiff was required to prove actual mal ice — i.e., that plaintiff must prove by clear and convincing evidence that defendant knew that her statements were false or had reckless disregard for their falsity. 4 However, the court failed to instruct the jury on actual malice. Thereafter, the jury rendered a verdict for plaintiff, awarding compensatory damages of $100,000.
Defendant moved for judgment n.o.v. and alternatively for a new trial, arguing, inter alia, that the trial court erred in failing to give defendant’s requested jury instruction on actual malice. The trial court explained that it had intended to give the instruction and that its failure to do so was inadvertent, not intentional. Nevertheless, the court denied the motions and entered judgment for plaintiff.
On appeal, defendant raises two assignments of error: (1) The court erred in denying her motion for a directed verdict because plaintiff failed to prove either falsity or actual malice, both of which were essential elements of his “public figure” defamation claim. 5 (2) The court erred in failing to give defendant’s requested instruction on actual malice.
*108 Defendant moved for directed verdict as follows:
“I would first say that as to those things which refer to the reference to feces, three or four animals in a cage, no shade, no water, food bowls empty and dogs were fighting, that there’s been ample evidence of, that all of those matters are true, they are in fact true.
“As to the statements about inhuman conditions, when we look at that particular word and the specific words that are used, it says, ‘it is still to me very inhuman,’ that clearly expresses that she was giving her opinion about what she had seen based upon these other facts and based upon her observations when she in fact was over there. We combine that with the fact that her observations were in fact true, and what we have is nothing that’s actionable based upon those statements.
“The other thing that I would move on the, for a directed verdict on is the, if the Court has heard enough evidence on this issue for the public figure, a matter that Mr. Hickey is a public figure and that assuming that there will be an amendment to the complaint to properly allege, which I have no objection to, an amendment to allege all of the necessary elements of actual malice, there has been no proof of actual malice in this case[.]” 6
In reviewing the denial of that motion, we must first address the appropriate standard of review. In general, denials of directed verdict motions are tested against the “any evidence” standard summarized in
Brown v. J. C. Penney
Co.,
“Because plaintiff had verdict, we cannot set it aside unless we can affirmatively say that there is no evidence from which the jury could have found the facts necessary to establish the elements of plaintiffs cause of action. Or Const Art VII (Amend), § 3. We do not weigh the evidence; we consider the evidence, including inferences, in the light most favorable to plaintiff.” 7
*109 Plaintiff contends that that “any evidence” standard governs our assessment of the sufficiency of his proof of both falsity and actual malice. Defendant does not dispute that the “any evidence” standard may be applied to the jury’s determination that her statements were false, 8 but asserts that we must test plaintiff’s proof of actual malice against a more rigorous de novo standard of review:
“[I]n a public figure defamation case, the appellate court ‘must “make an independent examination of the whole record” * * * so as to assure [itself] the judgment does not constitute a forbidden intrusion on the field of free expression.’ [New York Times Co. v. Sullivan,376 US 254 , 285,84 S Ct 710 ,11 L Ed 2d 686 (1964)], quoting Edwards v. South Carolina,372 US 229 , 235,83 S Ct 680 ,9 L Ed 697 (1963). Later, in Rosenbloom v. Metromedia,403 US 29 , 54,91 S Ct 1811 ,29 L Ed 2d 296 (1971), the Court reaffirmed its commitment to heightened appellate review in this type of case: ‘The simple fact is that First Amendment questions of “constitutional fact” compel this court’s de novo review.’ ”
We do not reach defendant’s argument regarding the appropriate standard of judicial review of a jury’s determination of actual malice because we conclude that plaintiff’s proof of falsity was legally insufficient.
Defendant’s allegedly false statements were, again, as follows:
“And it was very disturbing to think that things were going on over there that I saw that would happen in this *110 day and age to animals. Even though they’re being used for research, it still is, to me, very inhuman.”
“Well, the time I was over there, was three or four animals in a cage where there should be two. There was feces on the floor. Very warm day, no shade, no water. The food bowls were empty and the dogs were fighting each other.”
“Sometimes [I hear gunshots] once a week. Sometimes, it’s maybe two times a week. Just this month, there was three gunshots early in the morning about nine o’clock. And we saw pools of blood where dogs could have died and .22 shells.”
Defendant challenges the sufficiency of plaintiffs proof on two grounds: (1) Her first statement that “it still is, to me, very inhuman” was merely an expression of opinion and not a statement of fact and, thus, was not actionable as demonstrably true or false. (2) Although the latter two statements were statements of fact, there was no evidence that they were false.
We agree with defendant that her first statement was a nonactionable expression of opinion. Opinions, as “statements that cannot reasonably be interpreted as stating actual facts,” are constitutionally protected.
Milkovich v. Lorain Journal Co.,
Defendant counters, however, that the “undisclosed facts” exception is inapplicable here because her opinion was “based upon her observations when she was in fact over there,” and that those alleged eyewitness observations — e.g., overcrowded cages, empty food bowls, empty water bowls, etc. — were fully disclosed. We agree with defendant that *111 there are no undisclosed facts implied in her description of conditions as “inhuman.” Consequently, we conclude that that description was nonactionable opinion.
We proceed to the alleged falsity of the factual predicates of defendant’s opinion — that is, the second and third statements set out above. Where, as here, plaintiff is a public figure,
10
the First Amendment imposes on plaintiff the burden of proving that the statements were false.
Philadelphia Newspapers, Inc. v. Hepps,
Under the “any evidence” standard of review, we consider whether we may “affirmatively say that there is no evidence from which the jury could have found” that defendant’s statements were false.
Brown,
Applying that standard, we conclude that plaintiff did not present any evidence from which the jury could have found defendant’s statements to be false. It is uncontroverted that defendant did, in fact, visit the kennels once, in 1986, when they were operated by plaintiffs father. It is also uncontroverted that the conditions plaintiff described did, in fact, exist at certain times under both plaintiffs and his father’s ownership — i.e., that there were “three or four animals in a cage where there should be two”; “feces on the floor”; “no shade, no water” on a “very warm day”; “food bowls empty”; and “dogs fighting each other.” For example, plaintiffs father testified that “sometimes” the food bowls were empty; that *112 “sometimes” the dogs fought; that he had “at times” as many as 142 dogs in 44 cages, which is more than three per cage; and that he cleaned the cages at most twice per day, which would logically support an observation that there were times when feces were on the floor.
Notwithstanding that undisputed evidence, plaintiff contends that there is evidence that “casts significant doubt that the defendant actually saw what she claimed to have seen.” Thus, plaintiffs claim in that regard reduces to the proposition that, although the conditions defendant described existed at various times, they did not exist on the day in 1986 that she visited the kennels.
There is no evidence substantiating plaintiffs position. Plaintiff presented no evidence that the conditions defendant described did not exist on the day she visited the kennels. Indeed, although plaintiffs father specifically recollected defendant’s visit, he did not dispute the accuracy of her eyewitness account of conditions existing on that day. Instead, plaintiff relied on testimony that those conditions did not always exist as permitting an inference that they did not exist on the day in question. Moreover, plaintiff presented testimony that, he argued, demonstrated that defendant had a motive to fabricate her observations. 11 Plaintiff argues that, from that evidence, the jury could infer that the conditions described were not present on the particular day of defendant’s visit.
Plaintiffs proof was legally insufficient. Given defendant’s testimony that the conditions she described did, in fact, exist on the day she visited the kennels in 1986 and plaintiffs acknowledgment that the conditions described did sometimes exist, it was incumbent on plaintiff, as the party bearing the constitutional burden of proving falsity, to present evidence that the conditions described did not exist, or could not have existed, at the time of defendant’s visit. Plaintiffs generalized evidence that the conditions defendant described existed only occasionally, even rarely, did not meet
*113
that burden. Instead, such undifferentiated, non-time-specific evidence merely permitted the jury to speculate as to whether certain conditions existed at any particular time.
See Skeeters v. Skeeters,
Similarly, plaintiffs evidence pertaining to defendant’s purported motive to fabricate was insufficient, by itself, to demonstrate falsity. The possibility that a jury might disbelieve a material witness cannot, without other direct or circumstantial evidence, justify denying a directed verdict motion. As we said in
Sivers v. R & F Capital Corp.,
“Although a jury may disbelieve a witness based on demeanor, bias, motives, interest or inconsistent statements, there must be evidence, direct or circumstantial, from which the jury can reasonably [make its finding].”
Accord In re Taylor,
Plaintiffs proof of the falsity of defendant’s third statement, pertaining to gunshots, pools of blood, and .22 shells, is similarly insufficient. Plaintiff acknowledged using a .22 to shoot animals at least two or three times a month, sometimes more regularly, and did not contest the fact that defendant could have heard shots the month of the television interview. Other witnesses testified that, on occasion, a dog would get loose and would be shot where it was found.
Notwithstanding those admissions and corroborating evidence, plaintiff argues that defendant’s statements
*114
gave rise to a false implication that plaintiff “unnecessarily” shot animals and that plaintiffs admissions “do not establish, as a matter of law, the truth or substantial truth” of that defamatory implication. As support for that proposition, plaintiff relies on our opinion in the prior appeal in this litigation,
Hickey v. Settlemier,
Plaintiffs reliance on Hickey I is misplaced because our comments there pertained to a materially different record. In Hickey I, the record that we considered included the following exchange between the “20/20” correspondent and defendant:
“[Correspondent]: And when the animals aren’t suitable for research, Lethal Settlemier [sic] says they’re shot. Have you heard gunshots?
“[Defendant]: Yes, I have. Sometimes, it’s once a week. Sometimes, it’s maybe two times a week. Just this month, there was three gunshots early in the morning about nine o’clock. And we saw pools of blood where dogs could have died and .22 shells.” (Emphasis supplied.)
On review of our decision in
Hickey I,
the Oregon Supreme Court held that the emphasized comments were inadmissible hearsay.
In conclusion, we may “affirmatively say that there is no evidence from which the jury could have found” defendant’s second and third statements to be false.
Brown,
*115 Reversed and remanded with instructions to enter judgment for defendant.
Notes
In November 1988, after plaintiffs acquisition of the business, the USDA filed a formal complaint alleging that plaintiff had violated the Animal Welfare Act. 7 USC §§ 2131-57 (1988); 9 CFR §§ 1.1-12.10 (1991). In January 1990, an administrative law judge issued an order imposing a civil penalty of $10,000 and suspending plaintiffs license for one year. Plaintiff appealed that decision to the Judicial Officer of the Department of Agriculture who, in 1991, substantially adopted the opinion of the administrative law judge. By 1991, plaintiff was no longer in business. In an unpublished decision, the Ninth Circuit Court of Appeals affirmed the decision of the Department of Agriculture. Hickey v. Dept, of Agriculture, 991 F2d 803 (9th Cir 1993).
Plaintiff also filed suit against ABC. In
Hickey v. Capital Cities I ABC, Inc.,
The trial court allowed summary judgment for defendant on the ground that a decision by a federal administrative law judge,
see
note 1 above, established the truth of the allegedly defamatory statements as a matter of law. The Oregon Supreme Court ultimately reversed that holding.
Hickey v. Settlemier,
Plaintiff does not dispute that defendant’s proposed instruction correctly stated the law. That instruction read:
“A published statement about a public figure or on a matter of public concern is privileged, even if false and defamatory, unless the publication was made with knowledge of the falsity of the communication [or] in reckless disregard for its truth or falsity. Reckless disregard means that the communication was made with a high degree of awareness of its probable falsity.
“Plaintiff has the burden of proving by clear and convincing evidence such knowledge of falsity or reckless disregard for the truth.
“In the absence of such proof, plaintiff cannot prevail.”
The trial court’s only reference to the concept of “actual malice” in the instructions was in its summary of plaintiffs amended complaint:
“It then alleges that the defendant made the statements knowing them to be false or with reckless disregard as to the truth or falsity.”
After summarizing defendant’s answer, the trial court admonished the jury that “you’re not to take anything in that I’ve said in the pleadings as true unless it’s either been admitted or proved by the evidence. The pleadings themselves are not evidence.”
Plaintiff does not contest the court’s determination that, because of the public controversy surrounding the kennel’s operations and its PDA tie-in, he was a “public figure” for purposes of this defamation action.
Defendant also moved for directed verdict based on the argument that plaintiff presented no evidence showing that the allegedly defamatory statements were “of and concerning” plaintiff and not his father, the previous operator of the kennel. That argument is not raised on appeal.
Article VII (Amended), section 3, of the Oregon Constitution provides, in part:
*109 “[N]o fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict.”
There is some conflict in federal case law as to whether falsity in public figure defamation cases must be proved by clear and convincing evidence and whether, as a matter of constitutional imperative, a reviewing court must test the sufficiency of a plaintiffs proof of falsity against a “clear and convincing” standard.
See, e.g., Bressler v. Fortune Magazine,
971 F2d 1226 (6th Cir 1992),
cert den
Restatement (Second) of Torts § 566 provides:
“A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.”
Again, plaintiff does not dispute on appeal that he was a “public figure.” See n 8 above.
Plaintiffs evidence in that respect pertained to prior conflicts over the kennels and to defendant’s alleged association with animal rights activists.
Because of our disposition, we do not address defendant’s alternative arguments that: (1) plaintiffs proof of actual malice was legally insufficient; and (2) the trial court erred in failing to give defendant’s requested instruction on actual malice.